Criminalizing Healthcare Mistakes with Linda Laskowski Jones

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Welcome back to the Mighty Merp podcast. Today, my guest is Linda Laskowski-Jones. How did I do on that? You did great. Thank you. Linda is a registered nurse, has had a career in nursing, and we are going to talk today about the idea of criminalizing medical mistakes. And before we jump into that, Linda, could you just tell me a little bit about your background or at least tell my guests?

Not my guests, my viewers. Sure, sure. I've had a long nursing career history. Let's just say it's more than three decades and I'll leave it at that. I have a bachelor's and a master's degree in nursing. am a advanced practice nurse and a clinical nurse specialist. I'm also a certified emergency nurse.

And I have my NEABC, which is a Nurse Executive Advanced Certification. I'm a fellow of the American Academy of Nursing and also an EMT. So I've had a long history in emergency and trauma, going back from college all the way really to the present. That's the practice area I've specialized in. I love with all my heart. And I feel very, very fortunate to have been in it that long.

So I teach, write currently. I'm the editor in chief of a very large nursing journal and do some work in trauma quality and trauma center accreditation. Okay. Fair to say that you're an expert in this area of law, correct? I mean, this area of practice, I always say law, but expertise in nursing. Yes. Yes. I've had a long history as well as a nursing leadership roles. So I've certainly dealt with medical error.

So I'm gonna just jump right into this. Let's talk about medical errors. I think it's fair to say that everyone wants to make sure there are no medical errors when you're having surgery, when you're seeing a doctor. It's fair to say though that this would be almost an impossible feat to get it to a 0 % errors. The idea of going into a healthcare setting scares most people.

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can scare me, right? like anyone else from that perspective. And you want care to be perfect. I that is the goal. And that is the goal of nurses and of other health care professionals, right? Doctors, everyone goes into the business because they want to take care of people to the best degree that they possibly can. But at the end of the day, everyone is also human. there was obviously a lot of work done around the concept to air as human.

So that is, it's a book and it kind of is the basis of our whole response, our current response to errors in healthcare. So there seems to be a trend over the last few years to attempt to criminalize mistakes that occur in a medical setting. I think you're familiar with the case in Tennessee where there was a nurse who was convicted of

negligent homicide for a medical error that we can talk about. And I also handled a case, I think now it's been almost two years ago, where I had a client that was charged with manslaughter in New Jersey, also for a medical error. And that's how you and I met because you educated me.

regarding this issue and sort of the problems with attempting to criminalize these medical mistakes. From the perspective of those in the medical field, could you tell me what the position is generally regarding the idea of criminalizing or trying to prosecute cases where there are medical errors? Absolutely. So the whole concept of criminalizing medical error is terrifying. And it's terrifying for a lot of different reasons.

One is we place a very high value on integrity in healthcare. We want nurses, we want other healthcare professionals to be able to come forward and be able to say, I just made a mistake because we want to do something about it in the moment. And if people feel that their errors are now being held against them and that error could potentially result in criminal charges that could land them in prison,

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There is a very real risk that some may not necessarily come forward because they're afraid of what will happen to them, their family, their future. So, you know, this is kind of a new realm. This is not how errors were handled in healthcare previously. The case that you referenced in Tennessee was the nurse Radan Devat who made a medication error that

that was fatal. And there were a whole lot of factors that probably ultimately led to that error. But this was the first case that at least received a lot of national attention about criminalizing medical error. Right. And in her case, when you talk about a chilling effect of self-reporting of a mistake, my understanding of those facts from reading and doing research is that she is the one that came forward.

to say, my goodness, I might've made a medical, a medicine mistake. And without her coming forward with that acknowledgement afterwards, they would never have known because the woman who passed away, and it is tragic. I mean, I'm not minimizing that, was an older woman who I think they could have perceived had a cardiac arrest issue. But for,

were donned of blood coming forward and saying what she said, the rest of it wouldn't have occurred. The case that I had, which we can talk about, and I'm happy to discuss it in more detail, is that I had a nurse who hung the wrong IV bag, and she thought she was giving IV bag for an antibiotic, and in the end, it was a narcotic, and the patient unfortunately passed away as a result of it.

What I thought was interesting between the two cases is that there were so many systems failures. And it seems like these two nurses, really was just that their hands were on it last. Yeah. And that's such an important point that you make about the system failures. Because most of these errors are not made.

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kind of in isolation, it's where it is only the nurse who ultimately failed in actually administering the medication incorrectly or the wrong medication or whatever the case may be. But when you really start to look into root causes of why did this happen, those root causes can reveal a whole host of problems that an organization may have that set the nurse up perfectly for that failure.

And those things could be malfunctioning equipment. So for example, barcode scanning. A lot of institutions have implemented barcode scanning so that the idea is that you scan a medication, you scan what you scan. That ultimately validates that indeed this is a medication prescribed for this patient and then it can be documented electronically.

But sometimes these barcode scanners are functional, right? So you're unable to scan. Or maybe there's particular medications that come from a different supplier and those don't have a barcode scan that can be scanned in your current system. With all the drug shortages today, sometimes hospitals have to go to alternative suppliers. So you may not have the typical med that you normally get in. You could also have a situation where

an IV bag may not be able to be scanned, but maybe another type of medication can be. So there's lots of different factors that go into that. A patient could also have distracted the nurse, or another staff member could have distracted the nurse, or the nurse could have had a ton of patients to take care of. So when you look at situations in nursing homes, or long-term care facilities in particular, those nurses could be handling

over 25 patients in a given shift. Now, you have a lot of medications to be given. You're trying to get through and maybe a patient condition changes or something happens you don't expect and now you're behind the eight ball and you're rushing and maybe now you have an equipment or supply issue and then you have other staff pulling at you to go do something else and it just becomes like this huge recipe for failure.

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And it seemed like that in both cases, the case that I represented my client for in New Jersey, they had barcode machines that were not being utilized. So that was one of the errors. There were only two nurses each having 25 or more patients in the area that they were in. Another error was that

a narcotic was put in an unlocked refrigerator and it should have been in a locked refrigerator. And the nurse who put it in the unlocked refrigerator didn't tell anyone. lot of, again, systems errors. I also read about system fatigue. So you're able to override. So the barcode is a really good example that it doesn't always work, the barcode, because it's coming from a different pharmacy or

It's just not, the machine's not working. And so, you know, in the Tennessee case, Rodanda Vaught was able to override and that she, it was something so common to hit the override, like to skip it, that it almost became rote, like not even fully reading the screens because of what you said, the volume of patients, the trying to be efficient, the, you know.

just it's not working. So you're just trying to get to the next, you know. Yes. And I think it depends on how the systems are built. So usually there's a formulary, which is sort of the list of all the medications that are in a hospital or on a nursing unit. And, you know, one of the issues that can come up is that like a

ICU, for example, is going to have a formulary that has much more, I high-risk drugs because of the nature of what you do in the ICU. So these drugs may be paralytics, they may be medications that, you you have to have all the monitoring that would be available to you in an ICU to be able to safely give them, whereas you don't have that type of monitoring, the devices, I mean.

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on an inpatient unit that would be the regular medical surgical floor type environment. So there are times when there might be a medication where for whatever reason you have to give it and that medication is not in the formulary on your unit requiring that you have to bypass. I mean this goes back years, way back when when barcode scanning was really getting its start.

We were implementing it in the emergency department. And what was happening was that, unbeknownst to me, the formulary that was built in the emergency department was based on the usual formulary for the hospital. Now, in the inpatient unit, for example, if you're ordered, let's just give a fictitious example.

Motrin 800 milligrams as a patient. What the pharmacy would send you would be Motrin one 800 milligram tablet, right? And you'd take it. In the emergency department, for example, that ED may only be supplied with two 400 milligram Motrin. So in order to give the 800 milligrams, you give two tablets of 400. Well, when they go to barcode scan it,

The barcode scan is not going to tell you that you're giving an accurate dose. It's expecting an 800 milligram tablet, which you don't have. So you immediately get an error, right? And you have to override to get past that. these formularies for the individual units have to be built based on what is supplied in those medication dispensing cabinets in order to be able to have an accurate barcode system.

The other situation where it's really problematic is in an emergency where you need to very quickly get medications in and when you start to get errors popping up for whatever reason, even it could be an IT failure, that's where either overriding or just reverting to paper, which has been our longstanding go-to, that becomes the way things are documented. So all of these things can introduce a potential error in the system. And prior to the idea of

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criminalizing these mistakes. Because I do think that it's a pretty new idea. I saw that the Redonda Vaught case started in 2017. ironically, incident that I represented my client on started in 2017, although she wasn't ever told she was being investigated criminally. She wasn't notified. They did a direct presentment to the grand jury and it wasn't until 2022.

that she even knew that there was anything going to come of the incident in 2017. So I'm going to say prior to the idea that nurses or medical staff, doctors as well, it's not just nurses. mean, it's anyone in the medical field. Yes. Prior to this idea of criminalizing what we really do know, mistakes, what would normally happen if someone came forward and said, administered the wrong medicine or

whether it was able to be corrected and the person survived or if it wasn't able to be corrected and a patient was lost. What is normally happened in a medical field at that point? Okay, so I'm going to give you sort of the nursing history lesson here. I want that lesson. Yeah, yeah. So early on, I would say that when the nurse came forward and the nurse was expected, always expected to come forward, it was never...

you know, okay to not be honest, right? That's part of your licensure. So nurse would come forward and, you know, clearly the patient's needs were first and foremost to make sure the patient was managed, you know, through that medication error and is okay. And then typically what would happen in the early days when you had, and I hate to even kind of phrase it this way, but you know, the supervisors or head nurses who were just these

feared figures in healthcare, right? They were feared. So they would typically discipline the nurse in some way. And that could be anything from being written up to going through a human resource chain and being put on some sort of a probationary status. But there were some consequences, right, on the inpatient or outpatient units wherever the nurse happened to practice.

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What happened then after that, I think in nursing and in other aspects of healthcare delivery, there was a recognition that when you have that kind of response to a person who's coming forward to say, made a mistake, and now you are disciplining them for that mistake, which is not intentional in any way, shape or form. And then the person wasn't being sort of, for lack of a better word, reckless, right?

they're following the process, but something happened and they made this mistake. That that was actually going to start inhibiting people from coming forward. That was the fear. You whether it did, we really don't have evidence to say that it did, but even with the airline industry, for example, they wanted everyone to feel comfortable in speaking up to say that there was a problem before that problem got any worse and whether an error was made or

was about to be made. So then we ushered in this whole idea of just culture, right? Where the person would come forward, they would say, hey, I made the mistake. The patient would be taken care of, again, as the priority. And then typically, the first response is to consult. Because that nurse or that health care professional who made that mistake

feels terrible. I can't even describe what that sort of feeling is. And sort of like your world bottoms out. even my client, my client almost committed suicide after her, the incident that she had, she said she got in the car and she really was going to drive off the road into a pole. Like it was that devastating to her.

She voluntarily turned in her license of 35 years immediately after the incident. was just so traumatic for her too. mean, you know. Yeah. And unfortunately, there are many documented cases of nurses who committed suicide after making a medication error. And so the guilt is overwhelming when this happens. And it may not even be something that serious.

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winds up causing the death of a patient, it could simply be that I made a mistake this time, what is it going to be next time? And there's a lot of doubt that goes around. So beyond that, then the approach is to look at what are those system factors that may have contributed to this? And can we go in as a system and actually correct any of these? So the idea was to be very constructive, very supportive, get the information. And in that fact finding in the hospital,

if there's a determination that indeed there was something the nurse could have done differently. I mean, it's not held back. That nurse may have to go through some additional training or, you know, in certain cases, especially if this is something that happened, you know, more than once, you know, with some frequency, then that is a different issue. Okay. Then you're starting to look at competencies and,

you know, can we correct this with the individual if we can't correct this with the individual should the individual be working in this particular setting? Is there a better setting or perhaps now we need to let the licensing board know, right? But the system issues may be that, okay, the nurse had way too many patients assigned because they had people call out sick or they didn't have sufficient staffing for whatever reason. They had

many, many interruptions. So another example would be the nurses preparing medications and they're working within their small area on the nursing unit where that dispensing cabinet is located. And while they're trying to calculate a medication, everybody's walking through, they're cutting through the area, they're saying hello to the nurse. Maybe they're asking about another patient. Physicians might say, hey, how about Mrs. Jones in room

222, every time that happens, it breaks concentration and you're much more likely to make an error. So then some health centers have said, okay, we're going to put red tape on the floor. And when a nurse is in this red tape, that's a no pass zone, right? So you can't say anything to that person. That person's got to be fully committed to focus, right? On what they're doing. That's met with some success, but it just depends on whether people follow it.

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Maybe they need to institute a different type of process with barcode scanning or there's about a million different things where you could find an opportunity to correct the issue. Okay, so that's where we work. And then we continue on now into 2017 with Redondavod. And now you have criminalization of a medical error. Prior to that, unless somebody was running around, this is rare,

obviously, thank God, the angel of death, know, purposely doing something to hurt somebody where criminal charges are appropriate, right? Right. But when it's purposeful, right, we can all agree, any person, criminal defense attorneys alike, if somebody is intentionally or purposely that idea, you know, the idea that movies would be made of, right? Yes. Yes. What's written about these six? Yes.

that everyone agrees those individuals should be criminally charged there because they're besides the fact that they're probably psychopaths or sociopaths or whatever the diagnosis is, know, you know, that's not that's not what their job was, you know, right. We're talking about the extreme opposite end of the scale, right? Sure, exactly. But the normal way that nursing policed itself and how

licensed professionals from other disciplines police themselves is if this is an individual who really needs some either major remediation or perhaps should be practicing only with restrictions or maybe shouldn't be practicing at all right for again a myriad of reasons the first report is to that licensure licensing body right so for the

for the Board of Nursing for Nurses. Then, and I used to be for a couple of years a president of the Board of Nursing in Delaware, so I can speak to this process. A report would come in and it would be investigated by a divisional investigator who usually had a background in law enforcement. And there would be

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a determination made by an attorney general of whether or not there was potential violation of the Nurse Practice Act or the rules and regulations. And then it would come to the board and then we would have a hearing. so that individual could have legal counsel in a professional regulatory hearing. And then the board would typically act as judge and jury. There are some variations from state to state in that process, but in general,

then the board has the right to either say, no, we don't find that there's been a violation or there has been, and these are the types of sanctions that we can offer. But the sanctions, which could include losing your nursing license, don't include, it's not criminal. And I would say it's the same idea as lawyers. Lawyers lack of a better way of saying it. We police ourselves. We have district ethics committees.

for each area of New Jersey. You know, I was a former chair of district one ethics committee. You know, if there was an ethics violation, you would read the report, somebody would investigate it. If it was founded, then there was a more thorough trial and they could, they could be sanctioned, could be, you know, put on probationary, you know, might have to take classes, ethics classes and things like that. They might also dispended for a few months.

or they could be disbarred, but we are self-regulated. Exactly. Exactly. you are the ones who know your profession the best, right? So you can make judgments that others who do not have your background can make. And in the same way with nursing, the typical kinds of things that a board can do could be to levy a fine, put a nurse on probation, and there's terms and conditions attached to that.

depending on what the nature of the issue is, a license can be suspended for some period of time. Oftentimes that happens in substance abuse cases where there needs to be a period where the nurse can show that that is no longer an active issue and there's monitoring that is done thereafter. Thus commonly, a nurse's license can be revoked. So I think

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more nurses think that their license can be revoked than actually happens when you look at the number of hearings that the boards of nursing handle. But they do happen. And I certainly recall revoking a few during my time. And then, of course, there can be a civil lawsuit, right? Which in the extreme cases, there usually is, you know? Right. So it's fair to say that

Anyone involved in the nursing board in, you know, has the background that you have, I'm going to say. I would assume that those in the medical field are not proponents of prosecuting these type of errors. No, no. And there's another component to this. So, okay. And that other component is, you know, people choose to go into healthcare, but

What I worry about is that healthcare is so tough and so demanding and the amount you have to know is incredible to practice today. That if there is a risk that people are going to go to jail, if they're making an error, then they may choose not to go into healthcare. And you know, we need people in healthcare and you know, there's a nursing shortage there. There are shortages of physicians,

multiple groups of healthcare professionals really need to beef up their ranks. And we don't want to push people away either, right? So we want people to be safe though. So why do you think there is this movement to criminalize mistakes? Where do you think it's coming from? And then, I know, I thought maybe we could talk a little bit more detail of like, you know, maybe the case that

that we reviewed and all the mistakes, because that case never made sense to me why the charges were even brought against my client for the manslaughter. So who's pushing it? Is it individual people? And I don't know in this case, in my case, if that was the case, or is it a political issue that I'm kind of missing? it like...

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If the medical field is not pushing it, the nurses, the doctors, the individuals that are in the field, you know.

No, no. The only time we ever thought of criminalization of health care errors would be when they're not really an error, right? There's a purposeful act. And that will even include product tampering, which I unfortunately heard a few cases of that during my time on the board. And they automatically, of course, become criminal because now you've got

a whole host of other problems, with patient harm and again, it's an intentional act. As far as where this came from, think it's that blame game where, okay, the person no longer has a nursing license or maybe it's been heavily sanctioned. Maybe they're already facing a civil suit and now it's let's just put the icing on the cake and charge them with a crime. And maybe there are people that just feel that

That message is going to positively impact safe practice in some way that people are going to be scared now. And that's the only thing I can come up with is that it is some incorrect mental model of what this could potentially do to improve patient safety when it will do exactly the opposite. So people may not come forward, people may not go into healthcare.

Yeah, no, I agree with you. And I find it interesting from the idea of anyone attempting to argue deterrence that, you know, this strict penalties or punishment, you know, would deter someone. can't deter an accident or a mistake, you know, and New Jersey is different than Tennessee. Tennessee.

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Redonda Vaught was prosecuted under both reckless homicide and negligent homicide. And she was found guilty of only the negligent homicide, which is a very, it's a lower standard. I would still argue, I'm not sure how that was possible, but reckless homicide, you know, is meaning that reckless disregard of a substantial risk.

And I don't know how in New Jersey, we don't have negligent homicide. It has to be a minimum of recklessness. And so I don't even know how you could ever get to that for a medical medicine mistake. So, and then I always tell people when they, when they ask me an example of a reckless homicide, I always give them the example of a vehicular homicide, a drinking.

a drinking and driving accident where somebody is killed because the individual is aware of a substantial risk that you're putting yourself and other people into, right? Right. And so that is why we prosecute when people get behind the wheel of the car after drinking and cause an accident because it's not just a mistake in accident.

They didn't plan on doing it, but they were very well aware of the potential risks that they took. But in a hospital setting, if you're a nurse and you're put in a situation where the day that you're working, you have 25 to 30 patients, that's not your doing. No, no, that's your assignment. And you leave, by the way, then you're abandoning your patients, right? So you still may have to

do the best that you can with what you're given and you can't walk away from it. Right. And so the idea of trying to, again, and I'm just going to keep reiterating that we're, are talking about errors. We are talking about errors. We're not talking about intentional acts. Right. So in the case that you worked on with me, I had a nurse who, as I said, was supposed to hang an IV bag and unfortunately hung a narcotic bag.

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IV bag was supposed to run, the antibiotic bag was supposed to run for I think an hour, maybe two and hanging the narcotic bag over that same period of time caused the death of the patient. Yes. And I don't, do you, do you recall this case, Linda? yeah, I do. Okay. So this case, as I said, it was clearly a mistake. Nobody, nobody was disputing that.

But there were so many other errors. don't know if you want to discuss examples of like all the things that went wrong that caused the final issue, which is the hanging of the wrong medicine. Sure, sure. So the nurse was assigned 25 to 27 patients. That was the typical assignment. There was a patient who was admitted to that facility.

there was a hospice patient and there was a hospice nurse who was not from that facility who was managing an infusion of Dilaudid, which is a narcotic, it's an opioid, very potent, and it is appropriate for a lot of different severe pain conditions, but particularly in a hospice case to keep the patient comfortable, right, during their

their hospice journey. So the medication was from a pharmacy that was not a pharmacy used by this long-term care facility. And the device used to infuse that was also not something that was familiar. And there was a bag, a second bag that was brought in. So the hospice nurse took care of hanging the first bag that would run for a period of time. And they wanted a second bag to be available. So

if that first bag, when it ran out, there would be another one. Well, the problem was that they just put that back in a medication refrigerator in an unsecured location. The normal process, as I recall, was that there was a secured area in a box in the medication refrigerator and they had no more room in that box. And so this nurse

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who brought this medication over to the refrigerator was just told just put it in there. And so it is put in now among other medications that are certainly not these opioid dangerous type drugs, right? They did lock up the narcotics normally in that facility. They were not put in the regular or the refrigerator where the antibiotics were. Correct.

they were, they were just, it sounded like they were just sort of laid in there in an available space on a shelf. no one really was expecting that. And apparently it wasn't revealed to the rest of the nursing staff that this unsecured bag of Dilaudid was just now in their regular medication refrigerator. The hospice patient was in a hallway that was different from the hallway. The nurse, the nurse had the assignment that ultimately

had the patient get this, the lauded who shouldn't have, right? So one medication refrigerator for two full hallways of patients rather than a separate again, 25 to 27 patients, so long hallways. Right. So I can only imagine that it's kind of packed, right? Because you can imagine that patients in long-term care would receive a lot of medications and many of those are refrigerated.

So then they did have a barcode scanning system. However, it wasn't functional at the time of this medication error. And in addition, it hadn't even been set up to scan IV bags. So even if it had been functional, it wouldn't have worked on an IV medication. The area was very busy and the nurse is trying to manage all of this. She goes into

administer the antibiotic and it turns out there is a missing cap that she needs to administer the antibiotic and she can't find that and she's trying to get a supervisor ultimately to find the cap and so now the medication is getting delayed and it's getting she was already I think a little late on the initial of hanging the IV bag yes because she couldn't get the cap like it wasn't in the box where it was supposed to be and she's

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going through like two and three different people, ultimately the supervisor to try to find it. And she had identified her antibiotic, but when she went back into the refrigerator, I guess there must have been two bags there. The antibiotic, it was like 1,250 milligrams of the, and then the Dilaudid was like 1.25 grams. That's actually the same dose.

1250 milligrams is 1.25 grams, right? I just smile at this as you're saying it because I remember the first time that we were talking and you know my disclaimer and is a lawyer because I can't do science and I'm not very good at math. I am very good at what I do and you were like it's the same and I you had to like explain it to me like a few times that the 1250 and the 1.25 I guess.

It's just the way they're writing it on the bags. Yeah. Yeah, it's all about how pharmacy prepared the label, right? And so nurses are going to look at that and see that as an equivalent. And so I think she saw she didn't expect a bag of Dilaudid in an unsecured refrigerator. And actually, at the time that this was going on, her patient was the only one in her unit.

that was getting an antibiotic. So she only expected there to be an antibiotic bag for her patient. so she grabbed what she thought was the correct bag. It's, as I recall, it was close to 11 o'clock at night. She's going off duty at 11. She still has to finish her charting. She still has to give her sign out or nurses report to the incoming shift and she hangs it.

And then the whole question became, did she actually push the start button? Because the next shift came on and they said they saw the patient at one o'clock in the morning for their routine check and the patient was fine. And they noticed, I guess they may have restarted the IV at that point or there's beeping or something. And that's probably when the infusion actually started. So it's hard. But all of these things led to, you

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this horrible situation and she never was aware of it. Correct. Correct. She came in the next morning and she was told. And as I said, this was 2017. She voluntarily gave up her nursing license. The nursing board did reach out to her and kind of explained to her the process of, you know, what would occur in determining what happened and sort of

what would happen from there. And she just said, I'm never going to work as a nurse again. She told me she didn't get out of bed for about a month. You know, and so and then in 2022, she found out she was charged with manslaughter, which again, she had no idea. And part of the reason why she there was another nurse who they charged with like altering

the charts or the medicine, you know, the medicine or when they went to check on her. And so when they were, the five year statute was running for that individual. And when they indicted that individual, they also indicted my client for the manslaughter charge. So when we talk about all the systems errors and all the problems, I mean, clearly having 25 to 27 patients is too many patients, not having, you know, narcotics in a lot.

you know, refrigerator, not having the cap to be able to give the medicine. You know, they also, their supervisor, there was, there was a supervisor there, but not on the same floor as them on a different floor in that facility that night. keep reading and I read it in your report about the Swiss cheese approach. Yeah. So is this only, is this a term used in the medical field? Cause I never heard of it, but until I started to, so until we talked, my mouth was not working there.

until we discussed it. And then I was reading a lot of other articles and they kept raising this Swiss cheese phenomenon. So could you explain that to me or explain it so that, you know, everyone can understand what is meant when someone says the Swiss cheese effect? Sure, sure. And a really great resource to look up more about the Swiss cheese effect is the Institute for Safe Medication Practices, ISMP.

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and they have some excellent resources on medication errors. But essentially what it is is that when you think about Swiss cheese, right, there's holes in it. And when you sort of lay that Swiss cheese, if you have it sliced all together, like each slice is kind of a barrier, if you will, to a medication error or any type of medical error, right? But when all of those holes

happen to align. So now you're talking about issues that are system related, issues that are human factors, which could be everything from again, being overloaded, fatigue, something that is brand new and the person is unfamiliar, right? So you think about those human factors. Just the error of a nurse not telling anyone else that they put medication in a PlayStation and put medication.

Yeah, a communication breakdown, exactly. Even like an unclear medication order that, you you're trying to get clarity and maybe the... Messy handwriting? Could be messy. Yeah, now that we have electronic medical records, most of those are gone in history, that the doctors have to put these in or the providers, advanced practice providers have to put these in.

To electronic system which at least makes it easier. Thank God That was one of the most I think valuable aspects of those electronic health records but anyway, there there are still times that orders are written and you're reading them as a nurse and you know, the idea is you still have to use independent judgment, right so you know you have a person who has a medical degree or is an advanced practice

clinician and and they're writing that order and that person has Technically a higher degree of education, but it still comes down to the nurse like okay Well, then if you had a question, why did you administer it right? so Maybe it shouldn't have been administered and believe me over the years I had a lot of questions of people who wrote orders to say You know given this particular situation. I don't think I should give it the bottom line is when

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all of those barriers to the error, unfortunately lining up as a whole. That's when the error actually makes it to the patient. So for the most part, healthcare has tried very hard to add a lot of safety checks along the way, but then again, things can break down and coming from an ER environment, right? So in an emergency department, you have, you know,

In any given time, a bus pulling up literally with lots of injured people or ill people and crowding and high acuity and you can still have staffing shortages. So all the same things that can happen to inpatient units. But in an ED, there is no control because you can't say to somebody, we're busy. You can't come in the door, right? Everybody has to be able to come in.

And so, you we tried very hard to be as safe as humanly possible. Those were the times that I always worried about that, you know, you can take a machine and push a machine and ultimately that machine is going to break. And so will people under the conditions that just caused them to fail. Well, what I thought was interesting in both my case as well as the Vought case in Tennessee is that the only two people that were held potentially liable

criminally was that nurse. And there were so many other people. I mean, if you look at the Vought case, there were so many other issues. same with my client's case and that, you know, thought, well, I didn't think my client should have been charged, but I also was thinking, well, if she's charged, then why isn't this individual charged? You know, or this individual, you know, whose hands were on the antibiotic or the

or the nurse who said, she was still alive at one o'clock and I redid the IV to restart it. There were just so many different people that were involved and to put the full responsibility of her on that one individual, really is. I always think of it as like hot potato at that point, if you ever played that game and you're just the last.

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person with the hot potato in your hand. you're, you're for lack of a better word, you know, even though a of other people touched it. That nurse becomes the fall guy, right? Yeah. So, and that's the sad part in all of this is that the system sort of led you to, well, factors all came together to create that moment where that error actually was able to happen.

And it's very easy to look and say, that nurse didn't follow the five rights of medication administration. just for the section, know I'm to a group of lawyers. If you've never heard of the five rights, these are the rights that all nurses are taught the very first time they go in to do any type of medication administration, right?

in laboratory clinic type situations where you're learning and you're not even with real patients yet. it's you learn, OK, is it the right patient? Is it the right drug? Is it the right dose? Is it the right route? So you can give a medication orally or you can give it intramuscularly or subcutaneously or intravenously. there's rectally, there's many different routes for a medication.

is it the right time to give that medication? And then over the years, as people realized that the five rights were really not protecting patients because of all these other factors that can come to bear, right? That the medication errors were still happening. If they added things like, is it the right documentation after you gave the med? Which of course is important because if the nurse gave the med and didn't document it, the next nurse comes along and says,

you know, Mrs. Jones didn't get her whatever, need to give it again, now you get a double dose. So the documentation is important. But, you know, is it, some people have added, is it the right indication? Because sometimes medications are given for several different kinds of conditions. And they may be given in different ways depending on the condition or in different doses. So, and then is it the right type of formulation? So is it

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formulated to be an intramuscular injection or is it formulated to be an intravenous injection and or for a tube feeding and a gastric tube so all of these things so nurses learn that but even as they've made these more complicated these the five rates became the six then the seven eight and there's up to nine rates I think now somewhere floating along the internet it the the medication errors have not improved

They haven't improved. I was going to ask because the state, the state in my case had an expert that really focused on the six. They didn't do seven, eight, nine or five, the six protocol of administering the medicine. And that was their argument that it was reckless because, and it was really focusing on those. Like if she had just done, she did one of the six and if she had done more, which

I think there was an argument that she did do at the beginning. She just had to, she did look and make sure it was the right medicine and the right patient. She just had an interruption in between, between finding the cat. Is this also what you mean by nurses fatigue on a shift as well? Well, fatigue can come from a whole lot of factors. there's fatigue from working multiple shifts. It may just be the way the nurse is scheduled.

Very often nurses work 12 hour shifts. So you can imagine you're coming in back to back. Some hospitals have policies on how much overtime someone can work. But I can tell you when I was a brand new nurse, you sort of get out of school and you have student loan debt and you want to pay it back and they're offering maybe overtime, time and a half and you're just picking up everything. And I don't think

you realize how tired you actually are. there's research that shows that people will start to decline in their performance. You don't have the mental sharpness if you're well rested, right? you don't have, excuse me, let me say that again. No, I understood it, but I'm going to let you say it again more clearly. Yes. If you don't have the rest,

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then you don't have the mental sharpness or clarity. Rest brings that back, right? And it also can be from just a really hectic pace on a unit where you're working 12 hours, you come in and you are running from the moment that you came in. Maybe there were some, I call them call outs or people who are not able to be on the shift because of illness or whatever reason.

you know, low staffing, or maybe it is just a heavy assignment where the patients are complex. And then by the end of that 12 hours, like you literally, you feel like your brain is fried and, that type of fatigue can happen as well. And then if they have to, you know, come back the very next day, start all over again, you can imagine. my client, you know, I find it interesting because it did happen at the end of her shift.

And then she came back, you know, first thing in the morning, the next day for another shift. right. And so since I, since we keep talking and I keep bringing up this case with my client who was charged with manslaughter, I should say thank you. Cause we did get a very good resolution for the case. This is a client that when she retained me the first day, I think she was 60.

at the time she retained me. It happened when she was 57. And she was at the table crying. She was there with her daughter who I would say her daughter was a little younger than me, but we were, you know, contemporaries. And she literally just said, I cannot, I don't have the energy or the health to fight this. need you. All I, she said, I will plead.

to anything as long as you can keep me out of prison and jail. I want to see my grandchildren. I want to be able to be there for them. She said, it doesn't, my record doesn't matter. I gave my license in and we talked about it because I really did think she had a really good triable case, but if she lost at trial, she would be going to prison. And that's always the hardest thing about my.

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my job when I have really good cases and I have a case like this that could potentially set precedent, either bad for the medical field or really good for the medical field, right? But I had a client who was very clear with what she wanted from DIN and based on issues of the case, definitely thanks to your expert report as well. The state came back with a downgraded third degree offense for probation.

And she, again, without hesitation took the, which I understand. I think it's things that a lot of people don't get if they're not in that situation, you know, about one's freedom. Because as much as we're talking about mistakes and agree it shouldn't have been criminalized, the behavior, think that the idea that your profession can self-regulate is the same idea that we can self-regulate.

But, you know, she did not have the strength, let alone to fight it. You know, so. Yeah. I know that there are people in the medical field that were following the case. think that, you know, people that aren't in this situation might not understand why somebody would take a play, even though it was a mistake. But I think for her, she said, I already gave up my nursing license. Yeah.

Yeah, it was very, very unfortunate that, you know, things this happened to begin with, right? just yes, it shouldn't have. mean, this is a woman who, as I recall, worked for 35 years in the nursing profession. And I can tell you when I was reading the plaintiff's experts opinion, I was really pretty miffed.

I'm reading this and I'm thinking, my, no, you're back in the dark ages here. This is not how we handle error and what you're pointing out, there was just a lot of opinion. Well, I guess that's what the expert testimony is about anyway. was judgmental opinion. was judge. Yes.

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Yeah, to completely agree. So, you know, kept coming back to those five rights. And yes, the five rights are important. I'm not minimizing that. However, the modern way that we look at healthcare error is not all about the five rights. And there was no recognition of these other factors that came to play. And that was an issue for me. So yeah, it was tough.

something that I feel like she gave so much for those 35 years to people. And to have it end that way was really tragic. Because you don't go into nursing and deal with what you deal with as a nurse if you're not trying to do the right thing for people. It just doesn't help. I mean, my client's daughter was like, Melissa, she, cause it was a long-term facility as well as a rehab. She's like,

My mom would have people over to the house for Thanksgiving that didn't have any family left. She was like, you know, always the one bringing in and yeah, they're really hard cases. unfortunately, you know, when you're dealing with someone's freedoms, there's this reality of what they can mentally handle, you know, and what they can.

kind of put up with in the end. So he did do some research. I'm not sure if you could answer this. I don't really, I haven't really seen any other cases coming out like this at this time. Are there, do you know of any cases that are, that are open right now or pending that are prosecuting someone in the medical field for a mistake? No, no, I don't actually. You know, I recently heard

a or actually watched a presentation by Redonda thought for an organization called Nursing Service Organization, which is a liability insurance company for nurses. they had her as the guest just to talk about what it's like to be you know, where she is because she doesn't have a nursing license any any longer. they didn't send her to prison. That's the thing. They got probation, which I

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You know, when I was doing my research was like holding my breath that whole time. And because they had negligent homicide, we don't have that. If you're found guilty of manslaughter, it's a mandatory minimum five years and you have to serve 85 % of that. I can't even get my head around that. She spoke eloquently. She really did. And, you know, she talked about the fact that she is now a member of the public and I think she's

putting her efforts into the whole idea of safety, right? And what healthcare institutions need to also be held accountable for, for trying to create optimal work environments so that people can be safe, you're enabling them to the best degree possible. And even with that, I'm sure that, you know, things can still happen, I mean, in the best of circumstances, but they are far less likely because it's just too devastating on so many levels when these things do happen.

Right. But I think it's, it's removing all errors almost impossible. I mean, that's just the reality, no matter what. I mean, idea of trying to move forward to make it as safe as possible. mean, I would say to you, I think 12 hour shifts are ridiculous. I don't think anyone should be working a 12 hour shift. It's interesting. So, you know, there's a group of nurses. I know why you would want to work a 12 hour shift if you were

could work three days and have it full time and all of that. I get that. Yep. Yep. A lot of hospitals will do a 72 hour, you know, full time model and you don't have to come back and work that eight hour shift. It's just, you know, three 12s and another three 12s, but it's all in how those 12s are scheduled in many cases. And it's also, you know, something you've got to think about when you're in that situation of

Do I have what it takes to do this at this point in my life? Or maybe the individual's gonna go home and they have young children and they're not gonna get the sleep that they need and it's just killing them, right, to work these shifts. Or are they 25-something and have all the energy in the world and somehow they can, at least they believe they can manage it, right?

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And listen, there might be people that can. mean, I always jokingly say that all my doctor friends are all people that can live on five hours of sleep. know? Yeah. Yeah. And I am not that person. I am in bed by eight thirty to wake up at five thirty in the morning person. Yeah, I am. I am as well. I've always needed my sleep. I've not been good without it. Yeah. But it's just, you know, it's a whole it's very interesting. I'm glad.

I'm glad that I have not seen any new cases. you know, kind of ruffles my feathers when I think cases are being brought forward for the sort of headlines of it or because it's tindulating or possibly newsworthy at the time. But I'm glad to see that there really hasn't been an influx of attempts to prosecute, you know, individuals in the medical field.

You know, I know that the American Nurse Association really came out strong with Redondavit and that was a very public case, clearly. they made a lot of news types of posts and blog posts and they were very active to say, this is dangerous and here's why this is dangerous. And so there was a public outcry. There really was. And I don't know whether that has made

people think differently about criminalizing healthcare error? I don't know. I don't think it's going to prevent them from necessarily happening. I always say when I have those type of cases, it's always for me a balance or not of how much I wanted in the media. And I usually don't want it in the media at all. You know, I prefer to try the case in trial and to argue the case in court. But it was a recurring question and theme.

Do we get the National Nursing organizations involved? And how much? And do we want this to be bigger news than, know, because the case kind of flew under the radar a lot. know, I know that, I know people in the medical field were watching it from all different states because people had reached out to me, but it wasn't hitting the news in New Jersey. It wasn't at the forefront of anything. And yeah, and I have to take my clients like,

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wishes her mental health, her, you know, since I knew what the end goal was, it was sort of a, just get to the finish line of where we're going, which I, you know, was confident or cautiously optimistic that we could do, which was the probationary sentence. You know, when they're willing and able, the nurses who are going through something like this, you know, clearly do need the counseling support as well. And a lot of hospitals that are more progressive,

They do have people on site who can actually come and pull that person aside and have them go to a quiet place and debrief. It's kind of psychologically debrief because consolation is what that nurse needs in order to be able to reengage. Obviously not, thank God every error isn't of the nature and magnitude that these were, but still, as I had said earlier,

the healthcare errors deeply impact nurses and it haunts them. it's just imagine your world is coming to an end. I remember, this goes back more than, my God, well, way more than 30 years, I'll just say that. My medication error that I still remember, I pulled a bag of Dexter's 5 % in water.

out of the bin that was marked Dexter's 5 % point normal saline and I needed the D5.9 and someone had thrown a D5 in the bin and my patient, I was in an ICU, was an ICU nurse, it was in the process of coding, like they were cardiac arresting, right, we were resuscitating. remember

hanging that bag and in the grand scheme of things that did absolutely nothing to the patient honestly in that moment and I recognized it. Not long after I hung it it's like this is D5 not D5 you know 0.9 and quickly changed it over and probably 25cc's went in and even if the whole bag went in it still would not have been a big deal in this particular case. Anyway but still it bothered me so now I became you know completely paranoid and

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And I worried about every single bag I hung. had to triple check everything. But it really does do something to your psyche. in some ways, you can almost make other errors because your head is too focused on one thing. You may be missing something else as well. Well, what was interesting of everything I've read and listened to regarding the medicine and even when there's barcodes or you're putting it in the computer to dispense it, that

that with the overrides or because you have to do so many steps sometimes that you're doing them so quickly now just to finish the job, like to get what you need to administer the medicine. I think a lot of people that are nurses have said, my God, this could have been me or my goodness, I've had a similar situation. I caught it before or just moments before.

and things like that. yeah, so scary though, you know, in a field that everyone knows that, you know, people become nurses or doctors or EMTs because they want to help people. Like there's a genuine want to be, make people better and be caregivers, right? Yes, absolutely. Yeah. It's a, you know, it's a decision and it's your career, it's your livelihood. It's all of that.

and but it's also your passion. so it hurts when something like this happens. It's much more than maybe, okay, I've got to move from one type of job, you know, into into another like, yeah, it's a little bit of your identity. think like, you know, I think my client who lost her who, who gave up her nursing license, like it was an identity for her for 35 years, and it was devastating when it happened.

the incident itself and then the losing of the license, Yes. Anything else you'd share on this topic of errors and criminalization or non-criminalization of these type of cases? Well, I guess just a message to everybody out there as we all are patients in one way or another, we'll be, right, in the future.

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I really do think it's important to connect with whoever is providing your care and ask questions about what medications are being given. it's not offensive to do that. partner with your health care professional. I always think that's good practice. So I'll give you just a quick example. I just recently got the Shingroks vaccine.

the pharmacist who gave it to me said, you want to see the vial? And I said, yes, I do. And actually I looked and gave it back to him and he said, no one ever asked to see the vial. I said, really? And so I had to just put that out there, you know, to the group, because it is, the patient needs to be part of that patient safety process whenever possible, right? Otherwise, I think healthcare employers really have to look at their own processes and

their patients and their staff as safe as possible. This is a time when healthcare expenses are high and everybody's looking at ways to reduce healthcare expenses. I worry when staffing positions are cut, particularly licensed positions, registered nurses, advanced practice nurses, licensed practical nurses. When those positions are cut, your professional eyes decrease and responsibility on any one person

They've got to kind of pick up for the people that aren't there. And even when they start to cut unlicensed personnel or assistive personnel, it could even be the person who does the transport back and forth from the x-ray unit to the inpatient unit. When those people get cut, suddenly the nurse finds himself or herself doing those transports. It's a time off the unit, it's a distraction, and it's more time pressure to get that job done.

So we just asked that as attorneys, as you're looking at these cases, look at the situation the person was in in a broader context of not just, okay, you gave this wrong med. It's like, well, what was happening at the time that you gave that med? And you really want to know about sort of those factors that led to that Swiss cheese effect of all of those safety features suddenly.

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Now they're gone, right? And now that error was allowed to happen. So I don't think errors happen in a vacuum. And I don't think that errors should be criminalized again, unless they are intentional. Right. And again, that's what was interesting about my case is that they really did try to put it in the vacuum, right? They really tried to narrow it down to like a three minute period. Yeah. And that's just not how you can look at it.

Now, thank you so much for talking to me. I appreciate being able to have this great conversation on Mighty Merp and hope all is well with you. Thank you very much. And I apologize if you heard any banging at my door. was my cat trying to get in the room where I'm talking. So he wanted to join, but he would have been a distraction. I did not hear the banging. So.

That's okay, but I have literally been recording and have had dogs barking in the background and think we kept it in, but I had to stop a podcast in the middle of it before we went to video because my daughter, even though I had said I'm recording a podcast and I shut my bedroom door and then I went into the closet to record, came in.

And then lost the rest of the interview because I forgot to turn the recording device back on. I'm going to test to that my producer. really thought I was going to have one less child at that moment. I understand. There you go. So the cat was not an interference at all. Good. Good. I texted my husband at one point and said, get the cat. you go. Anyway, you're good. You're good. Well, thank you again.

Hopefully we'll talk to you soon, not have the long gap that we did. No worries, no worries. It was awesome.