Not If, But When: Preparing a Proper Defense After Medication Mistakes
After a nurse was convicted of negligent homicide for a fatal drug error, many ED nurses are wondering if an unintentional tragic mistake could land them in handcuffs.1 “Nurses shouldn’t be thinking: ‘Could it happen?’ Nurses should be thinking: ‘What do I do if and when it does?’” advises Stephen P. Hurley, JD, an attorney with Hurley Burish.
Hurley defended a Wisconsin nurse who was prosecuted for criminal negligence related to a medication error.2 In that 2006 case, the nurse was arrested on a felony charge after administering an IV epidural anesthetic instead of the IV antibiotic that had been ordered. When Hurley talked to the attorney general about the decision to bring criminal charges, the attorney general stated one factor was the deceased was an African American teen who had come to the hospital to give birth. Since the patient was part of a group who are disproportionately prosecuted, the attorney general wanted to see the system respond to the incident. “It all depends on how the prosecutor chooses to look at the case. But I think we will see more of these cases,” Hurley says.
Ultimately, that nurse entered into a plea agreement that resulted in the dismissal of the felony charge. It helped the defense that the day the error happened, the hospital administration called Hurley to represent the nurse and notified all the appropriate authorities. The nurse wound up being prosecuted anyway. “But because there had been no cover-up, we got it settled in a way that did not cause irreparable damage for my client,” Hurley says.
Hurley says criminally charging healthcare providers for medication errors is rooted in drunk driving statutes. At one point, “there were almost no statutes that criminalized negligence,” Hurley explains.
When the public became aware drunk driving was treated leniently in the courts, states began to pass statutes that criminalized the negligent act of drunk driving.
“People came around to thinking that when you choose to drink, you are making a conscious choice to engage in risky behavior,” Hurley notes. “For the first time on a national scale, we criminalized a negligent act. That opened the floodgates, without really any public debate.”
States subsequently passed statutes on intentional homicide, negligent homicide, reckless homicide, and homicide by drunk driving. “With the exception of intentional homicide, all of these incorporate the notion of negligence, that you can simply make a mistake and there can be a criminal consequence for it if somebody is killed or gravely injured,” Hurley says.
For example, if a driver runs through a stop sign and kills a pedestrian, it is possible that driver could be criminally prosecuted. “In some cases, this is applied to a medical situation. Particularly in the ER, there’s a million things to do in a short space of time and it’s really difficult to guard against mistakes,” Hurley observes.
If one of those mistakes should happen to kill or seriously injure somebody, there is a chance it could turn into a criminal case. “In most cases, prosecutors are sensitive to the fact that it happened in a hospital setting, that local people were involved who didn’t intend to hurt anybody, and they don’t bring charges,” Hurley says. “But every now and then, we see one of these cases.”
Whether prosecutors decide to criminally charge an ED nurse for a fatal medication error depends on multiple factors, including the public’s perception of the case. Hurley says the fast pace at which ED nurses work makes shortcuts more likely. “This isn’t just about nurses. Physicians who take a shortcut can find themselves in the same position,” Hurley cautions.
Hurley says ED nurses should not hesitate to contact a defense attorney if a patient is harmed by a medication error. “The interest of the hospital is often different from the individual healthcare provider,” Hurley warns.
ED nurses should not assume the hospital will defend them for having to take a shortcut. More likely, administrators will testify that protocols were put into place, and place blame on the ED nurse for taking the shortcut.
“The hospital is at risk of losing much if the patient was covered by Medicaid or Medicare, and depending on the nature of the error, could lose licenses or accreditation,” Hurley says. “[The hospital] will put its interests first. Healthcare providers should put their interests first as well.”
Lorie A. Brown, RN, MN, JD, an Indianapolis-based nurse attorney, says ED nurses should protect themselves legally by always making sure there is a physician’s order in the electronic medical record.
“ED nurses are frequently asked to enter verbal or telephone orders into the computer. Taking a verbal or telephone order could be a problem,” says Brown, past president of the American Association of Nurse Attorneys.
One ED nurse’s supervisor told her when a patient arrives with abdominal pain, standard practice is to order an abdominal X-ray and to start an IV to draw labs if the EP is busy. The nurse followed her supervisor’s direction; however, in fact, there was no such policy. Because the nurse and supervisor practiced outside their scope, they both were terminated and reported to the board. “Depending on the criminal statutes in your state, if the person died as a result of the nurse practicing medicine without a license, it could result in criminal charges,” Brown says.
If the department has systems issues that are contributing to dangerous medication mistakes, ED nurses have a tough decision to make. “You can always find another job, but you can’t get another license,” Brown notes. “If you cut a corner, it will come back and bite you. Nobody thinks they’ll be before the board or criminally charged. But it can happen.”
Kathleen A. McCormac, BSN, JD, a San Francisco-based nurse attorney, says, “criminal investigations are common, but actually filing charges are rare. Still, this is not the first time, nor will it be the last.”
ED nurses in this situation need the advice of a malpractice attorney, a criminal attorney, and an attorney handling the licensing issues. McCormac says if the ED nurse makes a medication error that results in a bad outcome, the nurse should decline to meet with anyone at the hospital without legal advice. Making a statement like, “I think I just killed a patient” is not advisable at that point, partly because the facts of what actually happened are unclear. “If you’ve made this kind of mistake, talking right then is not in anybody’s interest,” McCormac says. “Contact an attorney and get some representation beyond a union rep. Make sure you don’t put anything in writing or say anything that makes it worse.”
In some malpractice cases involving ED nurses, attorneys can present a unified defense, whereby the lawsuit settlement will be just against the hospital, and there will be no liability for the nurse. However, in the event a bad outcome happens from a medication override, “it’s very likely the hospital will claim the nurse didn’t follow the policy,” McCormac says.
The hospital’s interests are not aligned with the ED nurse’s in that situation. “I cannot tell you how many ED nurses I’ve represented that use override every day, multiple times a day,” McCormac shares. ED nurses continue to work with unsafe systems to provide care for their patients. “They may be told the problem is being addressed. They may feel like nothing will be done,” McCormac says.
To secure some degree of legal protection, ED nurses can gather data on how many times the dispenser was overridden in a week or a month, and share that data with risk management. “If you identify in writing that there are problems, and you get a series of emails going to managers and risk managers, at least you’ve got some cover that they were aware there was a problem that needed to be fixed,” McCormac says. That kind of documentation could deter a district attorney (DA) from pursuing criminal charges. “In a lot of cases, the DA’s office looks at the case but then never files,” McCormac says.
If the defense attorney produces evidence indicating reported concerns about overriding medications were ignored, says McCormac, “the DA will have more concerns about the likelihood of a conviction.”
- Kelman B. Nurse convicted of neglect and negligent homicide for fatal drug error. Kaiser Family Foundation.
- Hurley SP, Berghahn D. Medication errors and criminal negligence: Lessons from two cases. J Nurs Regul 2010;1:39-43.