by Christy Lyon
May 31, 1998

Healthcare practitioners across the country are asking the same question: Should nurses be criminally prosecuted when their mistakes result in patient deaths? In April 1997, three registered nurses in Denver were charged with criminally negligent homicide in the death of an infant, sparking a nationwide debate on the sanctions nurses should face for mistakes made on the job.

Advocates of criminal charges say nurses should be held accountable for their actions. They argue that charging nurses protects the public from future harm. Critics say licensing boards do a better job of pinpointing—and fixing—problems, and maintain that such boards already offer protection for the public.

What happened in Colorado

In the Colorado case, a physician ordered an intramuscular injection of penicillin for a day-old infant at risk of syphilis. The pharmacist incorrectly dispensed a syringe containing 10 times the prescribed amount. A staff nurse noticed the large dose and discussed it with a neonatal nurse practitioner, who told the staff nurse to change the route of administration to intravenous so the child would only be stuck once. Although the nurses consulted several reference books, they did not consult with the physician before administering the penicillin. The baby died soon after.

The Colorado Board of Nursing suspended the nurse practitioner and placed the nurse who administered the injection on probation. The board dismissed charges against a third nurse, who was the infant’s primary nurse.

Then the district attorney for the county that includes Denver stepped in and submitted the case to a grand jury, which indicted all three nurses for criminally negligent homicide. Under Colorado state law, criminal negligence occurs when there is "a gross deviation from the standard of care that a reasonable person would exercise" and when that person "fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists."

Recently, the two Colorado nurses who were censured by the state board accepted a plea arrangement that keeps their records clear of the negligent homicide charges if they stay out of legal trouble for two years. The other nurse was acquitted by a jury after 90 minutes of deliberation.

Prosecuting to protect the public

Robert Grant, the district attorney, defends his decision to go forward with the case. "The board of nursing has nothing to do with public accountability," Grant said, and pointed out that his office deals with "criminal standards, not professional standards."

Last July, before the case was tried, Grant wrote an open letter to the nursing community; "Nurses do not need to fear being prosecuted for simple mistakes. "However, if their care falls to the level of criminal negligence, such as when a doctor’s orders regarding the route of administration are knowingly changed without authorization, leading to deadly consequences, they cannot expect to be immune from responsibility."

A question of methods

Grant’s critics agree that nurses need to be held responsible for their mistakes and share his interest in protecting the public. But many feel that state boards of nursing are the best way to protect the interests of both nurses and the public. The American Nurses Association (ANA), for example, argues that nursing boards are uniquely qualified to evaluate nurses’ performance. After all, their members and staff are usually nurses. And boards of nursing "can fit the punishment to the protection of the public and the prevention of future harm," wrote Gerri Marullo, MSN, RN, then executive director of the ANA, in the November/December issue of The American Nurse. "In other words, they provide a much more sharply focused and refined tool for public protection."

Leslie Morrison, JD, MS, RN, president of the Northern California chapter of The American Association of Nurse Attorneys, agrees that action by the state board of nursing is the best way to sanction nurses who make errors on the job. "Criminal prosecution without criminal intent is the wrong way to go, as long as there are civil sanctions, such as suspending the license. Accidents happen. They shouldn’t be condoned, but going through licensing channels is more important than pressing charges."

Unforeseen consequences

Many people believe that the criminal prosecution of nurses may have unexpected ramifications. Judy Smetzer, RN, a safe management fellow at the Institute for Safe Medication Practices, fears that if nurses are criminally prosecuted for mistakes, "they will be less likely to report mistakes, which puts patients in jeopardy. People might hide errors, especially those of lesser significance."

Smetzer believes a clear line should be drawn when deciding which cases should lead to criminal charges. "Only when a person intentionally harms a patient should there be a prosecution," she said. "All other instances belong in civil court. Any nurse, physician, or pharmacist who has harmed a patient is devastated. They’re already punishing themselves. Often, they suffer from severe depression, even when the errors don’t harm individuals."

The aftermath of an error

In California, nurses rarely face criminal charges for mistakes made on the job. When the BRN receives a complaint, it investigates the charges, and if they are substantiated and a nurse consultant agrees, the board refers the case to the state attorney general’s office. If the attorney general’s office finds that the Nursing Practice Act has been violated, it files an accusation. At that time the nurse can contest the charges and ask for a hearing.

If the nurse is found guilty of the charges, resulting disciplinary procedures range from probationary terms to license suspension and revocation. Susan Brank, assistant executive officer of the BRN, said that the goal of the process is to "create a safe environment so nurses can eventually return to practice without monitoring."

Only in instances of willful or intentional acts of misconduct do the BRN investigators refer the case to a district attorney. However, Brank said, "DAs in California are overbooked and very careful about the cases they go forward with."

Preventing problems

How can nurses ensure that they won’t face the same ordeal as the Colorado nurses? Smetzer stresses the importance of an active approach. "Healthcare systems need to take into account human fallibility and focus on systems that anticipate medication errors."

In addition, nurses should be ready to admit their mistakes to the public, Smetzer said. She believes that part of the problem is the public’s perception. She said, "We helped bring the criminal system to this point by letting the public believe we’re perfect and not accepting our role in human fallibility."

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