Nurses are held to high standards of professionalism by the Colorado Board of Nursing, to the point where small, honest mistakes can lead to public discipline and restrictions on licensure. But can a nursing error lead to criminal charges? The answer is yes, though thankfully this rarely happens.
The case of Nashville nurse Radonda Vaught brought this issue into focus in 2022, when she was charged with and convicted of criminally negligent homicide for a medication error that caused that the death of a 75 year old patient. Rather than administering the sedative Versed, she injected vecuronium, which left the patient unable to breathe. The nursing community largely rallied to Ms. Vaught’s defense, but she was convicted. Prosecutors stressed that this was not an ordinary mistake, that there was a conscious disregard for safety and procedures, and that simply paying attention would have prevented the error and death.
Cases like this evoke strong feelings. As a defender of nurses before the Colorado Board of Nursing, I know how nurses are scrutinized. Even without the threat of criminal prosecution, nursing is a highly regulated field where a nurse’s every move is watched. Nurses know that innocent medication recordkeeping issues can lead to suspicion of drug diversion; that self-defense against a combative patient can be Monday-morning quarterbacked by management and the Board; that expressions of kindness can be misinterpreted as boundary violations; that inadvertent HIPAA violations are a fast-track to unemployment and discipline; and that any disgruntled patient can file a disciplinary complaint with the Board of Nursing—it takes about 5 minutes. Even personal errors away from work, like struggles with alcohol or depression, are regulated by the Board of Nursing. Any misstep threatens loss of licensure, loss of a career. In addition to Board discipline for mistakes, there is already a likelihood of termination, and a risk of civil lawsuits. It’s no wonder there’s an extreme national shortage of qualified nurses.
No one disputes that intentional patient abuse or drug diversion can (and sometimes should) result in criminal investigation or prosecution. But what about criminal prosecution of honest errors? There are several serious crimes, like manslaughter or criminally negligent homicide, which do not require that the defendant have intended to kill the victim—criminal negligence or recklessness is enough. Similarly, Colorado’s definition of assault only requires that someone recklessly have caused injury, and Colorado law defines injury to be as little as “pain.” There are plenty of other broadly-worded statutes that could be contorted to apply to nursing errors. Does it make sense to do so?
Generally, it would be bad to do so, but not every district attorney feels the same way. I understand the need to police egregious medical errors, because errors by nurses can have a serious impact on a patient. It’s a little bit like driving a car—if you drive a car recklessly, and kill someone, you should be prosecuted! And to a lesser extent, drivers are (and should be) prosecuted for homicides that result from gross negligence. But if you nurse negligently—say you’re moving too fast, and don’t doublecheck a medication—what then? One big difference is that driving is a selfish activity—you’re doing it for yourself, or your family. A nurse who makes a mistake was at least trying to help the patient, even if the nurse was doing an imperfect job. Another difference is that nurses are often put in impossible situations due to understaffing. Whether it’s the general nurse shortage, or a cost-cutting employer, understaffed employers often ask nurses to do the impossible. When that happens, errors result. Rather than piling on the nurse (who might already be losing her license and career), why not understand this as the inevitable result of a strained healthcare system? Discipline a license if necessary, sue the employer if necessary, but what is gained by criminal prosecution? Usually very little.
In fact, there are negative consequences to criminal prosecution of nursing mistakes. It further deters people from entering the field of nursing. It deters nurses from working in specialties with high-risk patients (with the potential for high-stakes mistakes). It deters nurses from working or volunteering where they are needed most—at places with staffing shortages, or in crisis situations, like after a natural disaster. And it risks terrible life consequences for an honest mistake, which we normally agree should not result in a person’s loss of freedom.
Thankfully, criminal prosecution for nursing mistakes is rare. For one reason, they involve a higher burden of proof. A civil suit or license revocation can be won if a preponderance (50%+) of the evidence supports the claim. But a criminal conviction requires proof “beyond a reasonable doubt,” a much higher bar. And though a zealous prosecutor may unreasonably go after a nurse, a jury made of community members is much more likely to be sympathetic to the nurse, especially if the prosecution has tried to shoehorn an honest mistake into a serious criminal charge. Another reason is that many police and prosecutors simply don’t understand these cases well enough. They aren’t confident of the standard of care, they have trouble getting and understanding necessary facility records, etc. It’s specialized, and it’s work–a lot of work—to build these cases. For reasons like this, it is usually only the most egregious errors that lead to criminal prosecution. But that doesn’t mean that prosecutors always get this right—far from it. For even a reasonable prosecutor, these are tough judgment calls, and prosecutors can face a lot of pressure from victims or the public, especially in cases that make the news.
I am a former prosecutor and an active criminal defense lawyer who specializes in defending nurses from the Colorado Board of Nursing. I can help you if you are charged with a crime for a nursing mistake. More commonly, I help nurses who are charged with crimes away from work, or who are being investigated for crimes like drug diversion or theft. I also defend stand-alone disciplinary cases related to standards of care, patient abandonment, charting errors, and more. Emailing me is the best way to get a quick response for a consultation: matt@handlaw.com.