When Not Being Perfect Is a Crime
This is the tragic story of a woman and a girl woman and how not being perfect is a crime.
The woman is Julie Thao, a registered nurse at St. Mary’s Hospital in Madison, Wisconsin, for 13 years who had outstanding job performance ratings. The girl woman was Jasmine Gant, a 16-year-old high school student who got pregnant.
The facts are these: On July 5 of last year, Gant went into labor and was admitted to St. Mary’s Hospital.
Her nurse was Thao, who had worked a 16-hour shift from 8 a.m. to midnight on the July 4th holiday, slept over at the hospital and went back to work in the birthing unit at 7 a.m.
Gant’s labor was complicated by an infection. Thao had intended to give her penicillin intravenously for the infection. Instead, she did not follow the hospital’s bar-code system, which is used to double-check the accuracy of medication, after accidentally removing a bag for an epidural anesthetic from a locker. Ignoring the warning on the bag, she gave Gant the anethestic. Gant had a seizure and died a short time later. The baby survived.
St. Mary’s quickly apologized to Gant’s family. The state professional regulation and licensing department told the hospital to limit Thao’s shifts to eight hours and later retroactively suspended her nursing license for nine months. It cited the 330-bed hospital for five violations but cleared it of any penalties after it updated its policies and initiated a re-education program for its nurses.
Then, in November a state prosecutor dropped a bombshell: Thao was charged with neglect of a patient and causing great bodily harm, a felony that carries a six-year jail sentence and hefty fine.
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25 Responses to “When Not Being Perfect Is a Crime”
link is broken.’
That said, as a frequent patient in hospitals, it’s one of those industries where they really don’t have any margin for error. At least from my perspective as the patient. I’ve been *this close* to having terrible things happen but for the fact that I was vigilantly watching what I was being given and had the courage to speak up and ask. This should not be.
So yes, it does have to be done perfectly, every time. Which is why hospitals ought to create better work environments and schedules for their employees, so they can perform at their best level rather than at their most exhausted. But something tells me that would unravel our already precarious “health care” system.
E:
The link worked when I just tried it. Please try again.
You are correct that the margin for error in hospitals must be extremely small, but when errors do happen — and they do — prosecuting the nurse is not the answer.
You also are correct that treating nurses better would further unravel an unraveling health-care system. Many hospitals have become dehumanizing profit centers where nurses are milked until they drop.
The link takes me to “Blogger not found.”
Joe
I couldn’t get the link to work either but I went directly to Shaun’s blog and read it.
I find this surprising because generally states adhere to the concept of tort law in cases of medical malpractice unless there really is evidence of criminal negligence or malfeasance. Do you have a link to the original article that reported this, Shaun? (If it’s in your post, I may have missed it). I’m just curious whether any rationale was given for the application of criminal law in this case, which is highly unusual.
I reinstalled the link and it seems to be working fine. Apologies.
CStanley:
I drew my post from numerous sources, but the State Journal in Madison, Wisconsin, has written most extensively about the case.
What you have here are the wonderful worlds of administrative, civil and criminal law.
CStanley:
Ooops! I brushed a key and sent my comment before I was finished.
What you have here are the wonderful worlds of administrative, civil and criminal law.
The Wisconsin regulatory and licensing authority more or less operates under administrative law in sanctioning professionals like nurses and institutions like hospitals.
Civil law would come into play if the family of the victim sued the nurse and/or hospital. Nurses are required to carry malpractice insurance in many states, and in some instances hospitals pay their premiums, for what that’s worth.
Criminal comes into play when there is evidence that a nurse intentionally caused harm. What is so egregious about this case is that the investigations by the hospital and state regulatory department found that the incident was an accident pure and simple. This makes the Attorney General’s actions all the more outrageous.
As noted in my post, it is probable that the nurse would have been acquitted had she not entered a no-contest plea and the case had gone to trial. The standard of guilt in a criminal case is “beyond a reasonable doubt,” of course, and the prosecution simply could not have proven the the nurse intended to harm the patient.
Here is an interesting legal sidelight: If you recall the O.J. Simpson case, the families of the victims were permitted to file a civil suit for wrongful death because he had been acquitted in a criminal court. Had he been convicted, the families would have been barred from filing a civil suit, and that is the prevailing standard in most jurisdictions.
That would indicate that the family of the Wisconsin victim would then not be able to file a civil suit against nurse and/or hospital because the matter had been adjudicated in a criminal court and there was not an acquittal. However, I don’t think it is as cut-and-dried as that, nor am I familiar with Wisconsin law.
My guess is that the hospital, which apologized to the family within hours of the death, sought a quick monetary settlement with the family, which would preclude it from filing a civil suit against the hospital. What about the nurse? I don’t know.
It’s all fascinating in a gruesome sort of way.
Yeah, that’s the part I was wondering about. It seems that he would have had to have had SOME rationale for the criminal charges.
It never ceases to amaze me how easily some people can dismiss the mistakes of those in the medical profession. Ignoring hospital procedures meant to avoid deadly mistakes such as the one that occured here is quite a bit worse than “not being perfect”. That nurse killed that poor 16 year old girl. My guess is if Julie Thao had been a truck driver instead of a nurse not so many people would dismiss her actions by saying “these things happen”.
CStanley:
None of the media accounts even hint at what the prosecutor’s “rationale” might have been, altho the DoJ flak’s statement lambasting state regulatory and licensing department may be a clue.
I am hoping that this post smokes out somebody better informed than me and I can provide an update that plugs that big hole.
I think the prosecutor’s rationale was:
But the state Department of Justice, which filed the charge, said Thao’s actions went beyond a simple mistake and violated several hospital and nursing rules.
Blue Neponset:
I am sure that you are not as hard hearted as your post makes you out to be.
If dedicated but exhausted and overworked nurses were thrown in jail every time they made a mistake like Ms. Thao did, there pretty much wouldn’t be any nurses anymore because no one would want to work in an industry (and yes, health care is an industry) where your risk of being prosecuted for unintentional errors was so high.
I, for one, am not dismissing the mistakes of the medical profession. But there are mistakes and there are mistakes. There are mistakes by doctors who have lost their edge and butcher patients in surgery. There are mistakes by nurses with drug habits who are impaired. But this was not a mistake made by a nurse who was anything other than pooped and therefore careless. I don’t presume to play God, but having her license suspended for nine months under these circumstances seems appropriate. Threatening her with six years of jail time does not.
I am that hard hearted. If a nurse refuses to follow procedures meant to specifically avoid things like killing 16 year olds then that is a serious crime maybe even a felony. She made a choice to not follow procedures and the direct result of that was the death of a 16 year old. If a cop ingores procedures and kills a 16 year old it is a serious crime maybe even felony if a truck driver ignores procedures and kills a 16 year old it is a serious crime maybe even felony. Why is it less serious when a nurse ignores procedures and kills a 16 year old?
Also, we have plenty of cops and truckdrivers who are willing to do their jobs when the stakes are so high. My guess is we will have plenty of nurses too. Actually, it might be better if the supply of nurses got so low, that might force hospitals to pay them more and restrict their hours to compensate for the high demand and the low supply.
Blue,
The law routinely recognizes differences in remedies for situations based on the intent of the person who caused harm. For people who work in professions where errors can cause fatal harm, there is always the possibility of pure human error causing a death even though there was absolutely no intent to cause harm. That’s why tort legislation (instead of the criminal justice system) generally addresses these kinds of errors and seeks to provide remedies for victims; there is a recognition that justice demands a remedy but also that the perpetrator doesn’t deserve the same type of punishment that they should receive for a criminal act (where the intent to harm or gross negligence in preventing harm can be shown.)
I’m a bit less inclined than Shaun to blame this so much on fatigue (though of course that may have been a factor and I’m not condoning the situation where nurses are encouraged to work such long shifts.) But in reading more of the details, it does appear that other factors were involved in Thao’s ill fated act. She had removed the bag of the epidural medication from the supply cabinet before it was ordered by the physician, ostensibly to show it to the patient in discussing the possibility of an epidural. A pretty bad error in judgement for which she does bear some responsibility, because her break in the procedure here led directly to her picking up the wrong medication. Second, she neglected to use the bar code system (apparently the patient didn’t even have a wristband on which should have been used in this procedure, but it’s not clear from reports I read whether or not this particular nurse was the one who was responsible for that.) Also, apparently the bar code scanners were not functioning well and many nurses were bypasses them (and one report even hinted that they may have been instructed by their supervisors to do so). Next, after beginning the IV administration, Thao was rewinding a video instead of monitoring and rechecking the meds. Her defense for these breaches is that the patient was distressed and that was her primary concern.
My point here is to show that there were numerous breaches of standard safeguards that are designed to prevent medication errors. For some of those, the nurse’s own decisions were the cause and for others, there were systemic problems that should be addressed. The biggest problem with seeking criminal punishment for a nurse in these circumstances is that such punishments will lead to underreporting of medication errors and coverups, which will actually lead to conditions that are more unsafe for patients.
CStanley:
Very well said, most notably that criminal prosecutions for unintentional errors will make patients less safe.
Let me add an interesting sidelight since you seem to be a legal eagle of some sort: The law as it has evolved is so cognizant of nurses and hospitals being able to do their jobs without getting hammered by criminal authorities every time that there is an unintentional error that hospital incident reports are usually not discoverable documents when there is litigation.
These are the reports that nurses, supervisors and others file after an incident like that involving Ms. Thao. The view is that these reports are valuable in enabling an institution to learn from its mistakes and should be protected from outside scrutiny because such scrutiny would tend to inhibit the key players from being candid, which in turn might lead to more unintended errors, which would . . .
Life is a risk. Every moment, every agreement, every procedure…
The best we can do is to try to get the odds on our side with due diligence. I use a service to find the best doctors and hospitals, I ask questions; but ultimately it is a gamble.
Paul,
That’s an optimistic attitude LOL! I somewhat agree with you (and this runs contrary to some of the factors I see at work in this case, because there’s often a strong need for people to feel that someone was held accountable for a tragic event, rather than accepting that sometimes sh*t happens despite everyone involved having good intentions.
But even though I share some of your fatalism, I also think it is important to get to the bottom of these kinds of incidents and gain as much control as possible over future errors. Perfection is impossible but that doesn’t mean we shouldn’t aim for it. And that’s why I think the guiding principle should be, “which course of action leads to the greatest chance of reducing future errors?”
Shaun,
Interesting point (I didn’t realize that these reports were not even discoverable in legal cases.) I’m not really a “legal eagle” but my interest in medical law is because I am a medical practitioner myself (veterinarian though, so my legal liability would never approach that of a human practitioner even if this was the beginning of a trend toward criminal liability). I think your point stresses how important it is to root out systemic sources of error in the practice of medicine. This is perhaps a significant difference in medical situations vs. ones mentioned by Blue, police work and truck driving, where most of the liability really does hinge on the individual decisions and actions of the person involved. And, in the particular case of police use of deadly force, there’s also a greater likelihood that a police officer might have the intent to harm (which, though it exists, is rare in the medical field).
CStanley:
Indeed, and the need to root out errors grows more imperative because the opportunity to make them is growing expodentially with the increasing use of electronic monitoring systems, computer interfaces with various hospital departments and nurses and physicians, and so on, as well as the probability that this gadgetry will malfunction or be off line as apparently was this particular hospital’s bar-code system.
Incidentally, those bar-code systems and more rigorous monitoring of pharmaceutical lockers have demonstrably cut down on cases like those of Charles Cullen, the nurse who murdered dozens of people in Pennsylvania and New Jersey hospitals because he pretty much had unmonitored access to the drugs that he used to kill. That is a very big instance of hospitals learning from their errors
Should the nurse have her license suspended, definitely. Along with documentation of what happened on the licensing records. Revoked permanently, maybe. Criminal charges, probably not.
Stuff does happen by accident and it is important for everyone to watch what is going on to the best of their abilities. There’s something like 50k accidental deaths in US hosptials each year. After each one, a review takes place, then recommendations for corrective action, then implementation and training.
Some of the issues that come into play include money and technology. How much money do you (the hospital) have to buy what technology?? The bigger the hospital, the more money available and the better ability to negoicate a better deal with the technology vendor and ability to afford house wide training on new technologies. Many larger hospitals have in-house IT departments. I’m a programmer at a major university hospital. This institution has been developing, and maintaining, all sorts of software in house for more than 30 years. But, that doesn’t preclude it from buying ‘packages’ from outside vendors. This institution is not only hiring more IT people, but partnering up with vendors in order to spread liablity out from itself. The last numbers I saw for the IT department was that we cost the institution more than 16 million dollars a year (software licensing [computer associates mostly], hardware and maintenance, software development and maintenance, employee salaries, etc). We cost the institution because we don’t generate revenue.
No perfect procedures can eliminate errors. In fact, doctors and hospitals can calculate and predict their error rates. If they triple checked everything they did, they would never get anything done. The point is that mistakes are not criminal acts: they are mistakes. To err is human.
Christine:
That’s a big chunk of change for IT even at a major hospital.
Out of curiosity, is your employer as cutting edge on the floor? Are nurses forces to work overtime? What is the nurse to patient ratio? Is there an internal system where problems can be reported and dealt with? Does the IT staff truly understand what the jobs of nurses, aides, transport staff, pharmacy staff, and so on, and customizing the software it installs to take what those jobs entail into account?
Just asking.
The dollar amount is for the hosptial itself and the college of medicine. Yes, it is cutting edge technology, research, care, etc (as in our institution may have found a cure for prostrate cancer – the first testing was very positive). It ranks in the top 5 in a few departments nationally, in the top 10 in others, and 12th overall in a couple of stats. It has more than 200 health care specialties. There are around 8k employees here. There were over 50k patients admitted, with 750+ beds, and over 850k clinic visits last year.
The IT department has 2 mainframes that measure in terabytes, 5+ on each machine. God only knows how many servers, a couple dozen??? There’s around 5k desktop (??) computers. Several hundred COWs (carts on wheels). Cable is measured in miles.
Projected expenses for fy ’05-’06 $724,077,200. Salaries/wages 51.7%, supplies 19.7%, general expenses 18.7%, depreciation 6.7%, operationing margin 3.2%.
I don’t know if the nurses are forced to work overtime or not. They are unionized though. Some may have to work overtime due to weather conditions, but that doesn’t happen a *whole* lot. I don’t know the patient/nurse ratio. But, there is constant talk around here about nursing shortage. There is a 3 year waiting list to get into this institutions nursing program. We just can’t process enough students and maintain standards.
Oh, yeah, you better believe that there’s an internal process for complaints by any of the staff about anything within the institution. Huge committment to standards.
Do we know what the hospital staff does every day. For the most part I’d say yes. IT includes not only programmers, but trainers, project development, telecommunications, hardware support, software support, and probably some things I’m forgetting. Over the years, I’d say that the interaction between the IT group and the nurses and doctors has provided quite a bit of room for us to get a good understanding of what their jobs are like. We have a nursing informatics division that is made up of RN’s. Everything that I do must pass through them before it goes to production. They tell us what’s up and some of the needs they are hearing from the floor, etc. Communication between departments are encouraged at every level. MD’s are also part of most ‘high’ level project development. So, we do not work in isolation. What we develop generally comes from the wants and needs of the staff.
Few people are optimally alert and competent after 16 hours of work followed by 6 hours of sleep, although, according to the Commercial Motor Vehicle/Driver Fatigue and Alertness Study, time of day is a better predictor of fatigue than hours worked. Different profession, but as some have pointed out, the same high stakes exist for truckers and nurses.
Both professions are notably overworked. Although this incident took place during the nurse’s subsequent shift, what reasonable person would design a system where life-and-death decisions are made by unsupervised individuals working 16 hours in a row?
None, I would wager. IMHO it’s just as bad or worse for nurses to work long shifts as compared to doctors because the decisions they make are more frequent and mundane. This type of “automatic decision” lends itself to mistakes, more so, I think, than when doctors are confronted with scenarios they recognize as complex.
Administrators must recognize this. There’s nothing new about the problem or its causes. They may be doing what they have to do to get the shifts covered, but asking medical practicioners to work double shifts is inherently dangerous.
With the information available so far the criminal case appears to be a real travesty of justice.
Christine:
Your IT staff is to be congratulated for working with floor staff. It is amazing — but true — that many hospitals are installing off-the-shelf software programs that do not take into account the needs of a particular hospital.
The biggest problem with IT and systems people is they don’t know what the people they support actually do. That has been true of every workplace where I’ve hung my hat. How refreshing that it’s different where you work.
When I started here, I was told – ‘You are a utility to make the hospital better. You don’t help the hospital, you’re gone.’ It also doesn’t hurt that some of the IT people have been here for more than 20-25 years. I’ve been here for 6.5 years and am no where near the middle of the pack in senority – not that senority means anything. We’re also ‘state’ employees, so we’re here because it’s what we want to do. Most of us could get lots more pay elsewhere, but like what we get here.
Do you know who the Gartner group is?? They’re a group that ranks hospitals (and other places) in the US on a scale of 1-5, where 5 is ‘you are just short of god’. 99 percent of the US hosptials will rank 1 on their scale. The reason is that there are several different areas that they consider and then rank the hospital as a whole on the lowest ranking. We ranked a 3 in documentation, but 1 overall.
This group also came to our defense when we wanted to hire more people and get more ‘toys’. The hospital wanted to pretty much gut us out, saying that the number of IT vs rest of the hosptial was out of proportion to the rest of the US. But, the IT covers the hospital and college of med and the hospital wasn’t considering the college of med employee numbers in the over all ratio. Gartner did their stuff and told the administration that they better be kissing our feet for what we have/can accomplish(ed) with the ‘little’ we have/get.
We refuse to take a vendor package and just install whatever it has. No way, ain’t gonna happen here. The nurses, doctors, business office, pharamacy, dietary, and whatever else is too used to calling us up and telling us ‘We want x,y, and z. When can you get it into prod??’ They’re learning to accept that it may take more than a couple of weeks to get their request in. We are here to serve their IT needs.
This is stupid. A drunk driver can kill a carload of people and get anywhere from a slap on the wrist to a few months in jail. This woman makes a mistake and kills one woman in a hospital and faces 6 years.
I wonder why? Its because we seem to all relate to being a drunk driver but we cant relate to being a tired nurse.
Perhaps we should have more tired nurse commercials playing on tv starring ex athletes and worn out actors and then perhaps being a tired nurse doing a patient in would not have near the repercussions that killing people while driving drunk does.