Analyzing Abuse of Prosecutorial Discretion in the RaDonda Vaught Verdict

Photo by Ante Samarzija on Unsplash

Gabriel Cripe, Associate Member, University of Cincinnati Law Review

I. Introduction

RaDonda Vaught, a former nurse at Vanderbilt University Medical Center (“VUMC”), faces several years in prison following her conviction on March 25th for gross neglect of an impaired adult and negligent homicide.[1] During the course of her employment at VUMC, Vaught made an enormous mistake—a mistake that ultimately led to the death of VUMC’s patient, Charlene Murphey.[2] However, Vaught was not the only one who made mistakes. Although Vaught disclosed her error to hospital staff, the neurologists from VUMC who reported her death failed to mention the error to the medical examiner.[3] Further, VUMC officials did not report the error to state and federal officials, as required by law.[4] VUMC then negotiated a settlement with Murphey’s family which included a non-disclosure agreement.[5]

This article will argue that the mistakes did not stop there. After laying out the events that led to Murphey’s death in Part II and the arguments at trial in Part III, this article will argue in Part IV that the Davidson County District Attorney’s Office erred by bringing charges against Vaught, and the jury erred when they convicted Vaught of gross neglect of an impaired adult and negligent homicide.

II. RaDonda Vaught’s Mistake

On December 26, 2016, RaDonda Vaught was working at VUMC.[6] She received a call from another nurse asking if she could assist with a patient, Murphey.[7] Murphey had recently been diagnosed with a brain bleed and was scheduled to receive a PET scan.[8] Murphey was highly claustrophobic, so prior to her PET scan, her doctor ordered a sedative, Versed, to be given to Murphey.[9] Vaught went to the automatic dispending cabinet (“ADC”) to retrieve the drug. ADCs are medication distribution systems that allow for computer-controlled store, dispensing, and tracking of medications.[10] At the ADC, Vaught typed either “versed” or “v-e”, unaware that the drug she was searching for was listed by its generic name “midazolam” in the system.[11] At this point, something popped up on the screen and Vaught tapped the “override” button. The ADC dispensed the medication.[12] Vaught later told investigators she thought it was odd that the medication was in powder form, so she turned the medication around to see instructions on how to reconstitute the medication,[13] meaning to dilute the medication into liquid form.[14]

Vaught next retrieved the necessary instruments to deliver the medication to Murphey and placed these instruments in a plastic bag. She wrote “versed 1 to 2” on the front of the plastic bag. Vaught then walked the medication to Murphey’s room with a new nurse she was training.[15] Prior to administering medication, nurses are supposed to scan the medication to make sure they have the correct drug for the specific patient; however, a scanner was not available to Vaught.[16] Vaught injected the saline into the powdered medication to reconstitute it.[17] She then injected the medication into Murphey.[18]

What Vaught failed to realize throughout this entire process is that the medication dispensed from the ADC was actually vecuronium bromide, not Versed.[19] Vecuronium bromide is a powerful paralyzing medication,[20] typically administered prior to surgery.[21] Vaught then left Murphey in the care of the PET scan technician.[22] Murphey became paralyzed, and her lungs started to depress causing difficulty breathing.[23] She suffered an anoxic brain injury due to the lack of oxygen.[24] Murphey was then resuscitated, but unfortunately, her family was eventually forced to remove her from life support.[25] She died in the early morning hours of December 27th.[26]

III. The Trial

Prosecutors from the Davidson County District Attorney’s Office charged Vaught with gross neglect of an impaired adult and reckless homicide. At the time of Vaught’s crime,[27] Tennessee law stated, “[i]t is an offense to knowingly, other than by accidental means, grossly neglect an impaired adult if the…neglect results in serious mental or physical harm.”[28] In closing arguments, the prosecutor told the jury that there were several ways Vaught’s conduct violated the statute. First, Vaught violated the statute when she failed to follow the “Five Rights of Medical Administration” prior to injecting Murphey with the vecuronium bromide.[29] Witnesses testified that when Vaught realized she did not have a scanner to scan the medication, she should have utilized the “Five Rights.”[30] This is used to ensure the nurse has “the right patient, the right drug, the right dose, the right route, and the right time.”[31] Second, the prosecutor argued Vaught violated the Tennessee statute by failing to assess Murphey’s vitals before and after administering what she believed to be Versed.[32] Finally, the prosecutor argued Vaught violated the statute when she failed to remain with the patient after administering the medication for proper monitoring.[33] The prosecutor argued that the unfortunate patient outcome was not an accident, and that Vaught made a knowing choice to disregard her training.[34]

A separate Tennessee statute defines reckless homicide as a “reckless killing of another.”[35] “Reckless” is defined under Tennessee law as “when the person is aware of, but consciously disregards a substantial and unjustifiable risk.”[36] Furthermore, the definition states that the disregard must “constitute[] a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.”[37]

The prosecutor argued Vaught made a series of mistakes that constituted reckless homicide. First, Vaught violated her duty to verify the correct name of the medication.[38] Second, Vaught disregarded the red warning labels on the vecuronium vials[39] that read “Warning: Paralyzing Agent.”[40] Third, Vaught did not realize that the Versed she was supposed to administer was not a powder and, therefore, would not need to be reconstituted.[41] Fourth, she did not do a blind count of the medication inventory after receiving the medication from the ADC.[42] Prosecutors argued this would have alerted Vaught to her mistake.[43]  Fifth, by her own admission, Vaught allowed herself to be distracted when retrieving and administering the medication.[44] Sixth, Vaught consciously disregarded her education and training.[45] Her training should have put her on notice that her conduct put her patient at risk, prosecutors argued.[46]

In the defense’s closing, Vaught’s attorney emphasized her candor through the investigation.[47] She immediately admitted her mistake, was forthcoming throughout the investigation, and expressed concern for Murphey and her family.[48] Her attorney argued that others, including VUMC administration, doctors, and other hospital staff, shared blame for Murphey’s death, but Vaught was made out to be a scapegoat.[49] He argued that Vaught could not have consciously disregarded the risk because she was never aware that she had the wrong medication.[50] He told the jury that what happened was an accident and that under the gross neglect of an impaired adult statute, accidents are specifically exempted.[51]

The jury found Vaught guilty of gross neglect of an impaired adult, but not guilty of reckless homicide.[52] However, the jury found Vaught guilty of the lesser included offense[53] of negligent homicide.[54]  Tennessee defines negligent homicide as “negligent conduct that results in death.”[55] Negligence is defined as when a person acts “with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”[56] Therefore, the jury did not find that Vaught consciously disregarded the risk but did find that she should have been aware of the risk her conduct could cause.

IV. Discussion

Prosecutors in the Davidson County District Attorney’s Office should not have charged RaDonda Vaught with a crime. Prosecutors are given wide discretion when deciding whether to prosecute someone.[57] If the prosecutor decides not to bring charges, this decision is not reviewable by the court.[58] A prosecutor can choose not to bring charges for any number of reasons, including if the prosecutor does not believe prosecution would serve the broader “interests of justice.”[59] This means that even if the prosecutors believed Vaught’s conduct violated the statute, they could have decided not to prosecute her because the prosecution may have larger consequences outside of the effect on Vaught individually. This is exactly what should have been done.

Prosecutors should not have charged Vaught for three reasons. First, Vaught’s prosecution disincentives disclosure of medical errors. After Vaught made the enormous mistake, she made the correct and respectable decision to report her error to the hospital staff.[60] Throughout the investigation, she was forthcoming with investigators about what happened.[61] The lethal consequences of medical errors may be reversible if recognized in time. Criminalizing medical errors forces these errors into the shadows where they are unable to be corrected. A nursing and sociology professor at the University of Pennsylvania recently told National Public Radio (“NPR”) that “the only way you can really learn about errors is to have people say. ‘Oh, I almost gave the wrong drug because…’ Well, nobody is going to say that now.”[62] Following the verdict, the American Nurses Association (“ANA”) and the Tennessee Nurses Associations (“TNA”) released a statement, writing that “[t]here are more effective and just mechanisms to examine errors, establish system improvements and take corrective action. The non-intentional acts of Individual [sic] nurses like RaDonda Vaught should not be criminalized to ensure patient safety.”[63]

Second, the decision to prosecute further exacerbates the decline in morale among nurses and contributes to the nursing shortage at a time when nurses are needed most. During the ongoing COVID-19 pandemic, nurses were expected to work long hours with increased nurse-to-patient ratios.[64] Nurses were put at an increased risk of contracting the virus, especially in early March 2020 when personal protective equipment was scarce.[65] Now, nurses across the country express a sharp decline in morale.[66] The increased need for nurses and this decline in morale has led to a nursing shortage.[67] The U.S. Bureau of Labor Statistics estimates that nearly 200,000 average annual job openings for nurses over the next decade.[68] A recent survey of nurses showed that over 20% planned to retire within the next five years.[69] In their joint statement, the ANA and TNA wrote, “The nursing profession is already extremely short-staffed, strained and facing immense pressure . . . This ruling will have a long-lasting negative impact on the profession.”[70] The profession may already be experiencing this negative impact. Emma Moore, a nurse practitioner at a community health clinic, quit her job four days after the verdict. She told NPR that her job was “not worth the possibility . . . that this will happen if I’m in a situation where I’m set up to fail.”[71]

Finally, the decision to prosecute was incorrect because it misunderstands the nature of the nursing profession. Due to the increased nurse-to-patient ratio, the work of nurses is fast paced and hectic.[72] As Vaught’s defense attorney stated in closing, “I used to think that I operated under a lot of pressure running from court to court, having hearings, having trials… until I met RaDonda Vaught and the nurses that do the kind of work that she does.” To put it simply, attorneys cannot fully understand the nature of the work that nurses do. Prosecutors at trial emphasized that Vaught rushed off to care for another patient after administering the medication to Murphey and left Murphey with the technician. But Vaught had other patients that also needed her care. Vaught believed she administered the correct medication and that there was no reason to stay to monitor the patient. A reduction in nurse-to-patient ratio would have solved this problem, but this was not up to Vaught; it was up to the administration at VUMC. Further, prosecutors argued she was reckless by utilizing the ADC’s override function to obtain the medication. This function is used in emergency situations to option medications quickly.[73] However, experts have argued that the use of the override function is a daily event at many hospitals.[74] When Vaught testified before the nursing board, she stated that, “[o]verriding was something we did as part of our practice every day. You couldn’t get a bag of fluids for a patient without using an override function.”[75] At trial, a witness testified that the hospital was hampered with technical issues at the time of Murphey’s death.[76]

After prosecutors decided to charge and bring the case to trial, the jury was put in a difficult position. However, the jury should have found Vaught not guilty on both counts and not guilty on all lesser included offenses. As to count one, gross neglect of an impaired adult, Vaught’s conduct fell within the exemption “other than by accidental means.” When viewing Vaught’s conduct in the context of the fast-paced and stressful work environment, her actions can best be described as an enormous mistake—an accident that had disastrous and heart wrenching consequences, but an accident, nonetheless.

The jury correctly found Vaught not guilty of reckless homicide. As the defense argued, one cannot consciously disregard a risk that they were not even aware existed. Because of Vaught’s mistake, she was not aware that she had the wrong medication and, therefore, could not have consciously disregarded the risk that comes from administering that medication. The jury’s decision to find Vaught guilty of negligent homicide is defensible and reasonable minds can disagree over whether this was the correct decision. Under this verdict, the jury found that Vaught should have been aware of the risk that her conduct could lead to the death of Murphey. Vaught certainly made an enormous mistake and, after receiving the medication, overlooked opportunities to correct this mistake. But utilizing the override function on the ADC and rushing to administer the medication was part of the environment she was in. The jury made the incorrect decision but, for the reasons stated earlier, the charges should have never been brought to the jury to make this difficult decision.

V. Conclusion

In a perfect world, prosecutors never would have brought charges against Vaught. This decision disincentives disclosure of medical errors and reduces patient safety, exacerbates the already increasing nursing shortage, and misunderstands the nature of nursing. After this decision was erroneously made, the jury was put in a difficult position. They correctly found Vaught not guilty of reckless homicide and consciously disregarding a risk. However, the jury incorrectly found her guilty of gross neglect of an impaired adult, because Vaught’s conduct was an accident, and incorrectly found her guilty of negligent homicide because the environment Vaught was in contributed to this tragedy. Rather than criminalizing these mistakes, the legal system should leave these decisions to state nursing boards who can better understand and regulate the profession. Nursing boards can investigate and choose to rescind violators’ licenses or levy fines. This allows for accountability in the nursing profession and maintains patient safety without the negative consequences of criminal prosecution.

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[1] Brett Kelman, Former Nurse Found Guilty in Accidental Injection Death Of 75-Year-Old Patient, Nat’l Pub. Radio (Mar. 25, 2022), https://www.npr.org/sections/health-shots/2022/03/25/1088902487/former-nurse-found-guilty-in-accidental-injection-death-of-75-year-old-patient.

[2] Criminal Conviction Following A Fatal Medication Error: The RaDonda Vaught Case, Hancock Daniel (Mar. 29, 2022), https://hancockdaniel.com/2022/03/criminal-conviction-following-a-fatal-medication-error-the-radonda-vaught-case/?utm_source=rss&utm_medium=rss&utm_campaign=criminal-conviction-following-a-fatal-medication-error-the-radonda-vaught-case.

[3] Brett Kelman, The RaDonda Vaught Trial Has Ended. This Timeline Will Help With The Confusing Case,Tennessean (Mar. 27, 2022), Https://www.tennessean.com/story/news/health/2020/03/03/vanderbilt-nurse-radonda-vaught-arrested-reckless-homicide-vecuronium-error/4826562002/.

[4] Id.

[5] Id.

[6] WKRN News 2, RaDonda Vaught Trial: State’s Closing Arguments, Youtube (Mar. 25, 2022), https://www.youtube.com/watch?v=IqBbyVjUFGw.

[7] Id.

[8] Id.

[9] Id.

[10] Matthew Grissinger, Safeguards for Using and Designing Automated Dispensing Cabinets, Nat’l Lib. of Med. (Sept. 2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3462599/.

[11] Katherin Oung, Former VUMC Nurse RaDonda Vaught Found Guilty for Death of Patient By Accidental Injection, Vanderbilt Hustler (Mar. 31, 2022), https://vanderbilthustler.com/47301/featured/former-vumc-nurse-radonda-vaught-found-guilty-for-death-of-patient-by-accidental-injection/.

[12] WKRN News 2, supra note 6.

[13] Id.

[14] Edyne Greenberg, Reconstituting Medications: How to Fluff Up Medications, Austin Community College, page 1, https://www.austincc.edu/rxsucces/pdf/reconstructionpdf.pdf (last visited Apr. 4, 2020).

[15] WKRN News 2, supra note 6.

[16] Criminal Conviction Following A Fatal Medication Error: The RaDonda Vaught Case, supra note 2.

[17] WKRN News 2, supra note 6.

[18] Id.

[19] Kelman, supra note 1.

[20] Kelman, supra note 3.

[21] Cerner Multum, Vecuronium, Drugs.com (July 19, 2021), https://www.drugs.com/mtm/vecuronium.html.

[22] WKRN News 2, supra note 6.

[23] Id.

[24] Id.

[25] Id.

[26] Kelman, supra note 3.

[27] This statute has since been repealed. Now, a separate statute titled “Neglect of an Elderly or Vulnerable Adult” states, “It is an offense for a caregiver to knowingly neglect an elderly or vulnerable adult, so as to adversely affect the person’s health or welfare.” Tenn. Code Ann. § 39-15-507.

[28] Tenn. Code Ann. § 71-6-19.

[29] WKRN News 2, supra note 6.

[30] Id.

[31] Frank Federico, The Five Rights of Medication Administration, Inst. for Healthcare Improvement, http://www.ihi.org/resources/Pages/ImprovementStories/FiveRightsofMedicationAdministration.aspx#:~:text=One%20of%20the%20recommendations%20to,route%2C%20and%20the%20right%20time (last visited Apr. 4, 2022).

[32] WKRN News 2, supra note 6.

[33] Id.

[34] Id.

[35] Tenn. Code Ann. § 39-13-215.

[36] Tenn. Code Ann. § 39-11-106.

[37] Id.

[38] WKRN News 2, supra note 6.

[39] Id.

[40] Kyle Cooke, Prosecutors: Former Vanderbilt Nurse Missed Multiple Warnings Before Giving Patient Deadly Drug, WVLT 8 (Mar. 22, 2022), https://www.wvlt.tv/2022/03/22/prosecutors-former-vanderbilt-nurse-missed-multiple-warnings-before-giving-patient-deadly-drug/.

[41] WKRN News 2, supra note 6.

[42] A blind count is when the nurse counts the inventory of the medication prior to removing the medication. Pyxis MedStation Controlled Substances, page 2, Santa Barbara County Dep’t of Behavioral Wellness, https://www.countyofsb.org/behavioral-wellness/policy/4666#:~:text=Blind%20Count%20%E2%80%93%20when%20a%20user,they%20are%20witnessing%20a%20discrepancy (last visited Apr. 4, 2022).

[43] WKRN News 2, supra note 6.

[44] Id.

[45] Id.

[46] Id.

[47] WKRN News 2, RaDonda Vaught Trial: Defense’s Closing Arguments, Youtube (Mar. 25, 2022), https://www.youtube.com/watch?v=tAjZrGsnB2o.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Kelman, supra note 1.

[53] A lesser included offense means a less serious offense that the defendant must have committed if they committed the more serious offense. LawInfo Writer, What Does ‘Lesser Included Offense’ Mean in Criminal Law?, LawInfo (Mar. 26, 2021), https://www.lawinfo.com/resources/criminal-defense/what-is-lesser-included-offense-criminal-law.html. In Tennessee, the judge may instruct the jury that if they find the defendant not guilty of the more serious charge (e.g. reckless homicide), they may find the defendant guilty of the less serious charge (negligent homicide). Tenn. Code Ann. § 40-18-110.

[54] Kelman, supra note 1.

[55] Tenn. Code Ann. § 39-13-212.

[56] Tenn. Code Ann. § 39-11-106.

[57] Jens David Ohlin, Adjudicative Criminal Procedure, 53, Wolters Kluwer (2020).

[58] Id.

[59] Id. at 54.

[60] Kelman, supra note 3.

[61] WKRN News 2, supra note 35.

[62] Brett Kelman, Why Nurses are Raging and Quitting After the RaDonda Vaught Verdict, Nat’l Pub. Radio (Apr. 5, 2022), https://www.npr.org/sections/health-shots/2022/04/05/1090915329/why-nurses-are-raging-and-quitting-after-the-radonda-vaught-verdict.

[63] ANA Enterprise, Statement in Response to the Conviction of Nurse RaDonda Vaught, NursingWorld (Mar. 25, 2022), https://www.nursingworld.org/news/news-releases/2022-news-releases/statement-in-response-to-the-conviction-of-nurse-radonda-vaught/.

[64] Paulina Firozi and Sarah Fowler, ‘Emotionally, Physically, Mentally Tired’: Nurses Say Morale Has Hit a Pandemic Low, Wash. Post (Oct. 15, 2021),https://www.washingtonpost.com/health/2021/10/15/nurses-covid-morale/.

[65] Beth Healy and Saurabh Data, ‘Health Care Heroes Really Got The Shaft’: Some Workers With COVID Had To Fight For Pay, WBUR (Jan. 19, 2022), https://www.wbur.org/news/2022/01/19/covid-workers-compensation-pandemic-massachusetts.

[66] Firozi and Fowler, supra note 49.

[67] American Nurses Associations, Nurses in the Workforce, NursingWorld, https://www.nursingworld.org/practice-policy/workforce/ (last visited Apr. 4, 2020).

[68] Id.

[69] Id.

[70] ANA Enterprise, supra note 48.

[71] Kelman, supra note 52.

[72] Laila Govasli, Betty-Ann Solvoll, Nurses’ Experience of Busyness in their Daily Work, Wiley Online Lib. (Mar. 4, 2020), https://onlinelibrary.wiley.com/doi/full/10.1111/nin.12350.

[73] Karla Miller, et al., Evaluation of Medications Removed from Automated Dispensing Machines Using the Override Function Leading to Multiple System Changes 1, https://www.ahrq.gov/downloads/pub/advances2/vol4/advances-miller_93.pdf.

[74] Brett Kelman, In Nurse’s Trial, Investigator Says Hospital Bears ‘Heavy’ Responsibility for Patient Death, KHN (Mar. 24, 2022), https://khn.org/news/article/radonda-vaught-fatal-drug-error-vanderbilt-hospital-responsibility/.

[75] Id.

[76] Id.