Reckless Homicide at Vanderbilt? A Just Culture Analysis

Second, our model identifies five levels of intention toward harm. These are, in descending order of culpability: (1) purpose, (2) knowledge, (3) reckless, (4) at-risk, and (5) human error.
Purpose is the express goal of causing harm, while knowledge is knowing that harm is going to occur (think of posting compromising photos of your hated co-worker as a purpose to cause harm, whereas theft of your nifty work computer is knowingly causing harm). While purpose and knowledge are very similar, we split the two because knowingly causing harm is sometimes justified (breaking into a car to save an overheating baby), whereas a purpose to cause harm is never justified. These two levels of intent, purpose and knowledge, are there in the Tennessee criminal law; there’s just no reason to believe they are relevant to the case at hand.

Recklessness, again, is the conscious disregard of a substantial and unjustifiable risk (think drunk driving). In other just culture models, many crafted by non-lawyers, you will see the words reckless and negligence used interchangeably for intentional risk-taking. In fact, they are two very different terms in the law, with negligence more tied to simple human error than any kind of willful risk-taking behavior. In our Just Culture model, we abandon the term negligence because notions of negligence on the street are far more culpable than how the law defines it. In our model, we split negligence into two types of behavior: human error and at-risk behavior. At-risk behavior is the choice, but where the risk is not seen, or mistakenly believed to be justified (think of choosing to drive 9 mph over the speed limit). Human error is the unintended behavior, the slip, lapse, or mistake (think of the stop sign you did not see). In short, and much simplified, under the Just Culture model we propose the following actions: accept/console the human error, coach the at-risk behavior, and leave sanction/ punishment for the reckless, knowledge, and purpose to cause harm.

For many in the safety community, this would be the end of the analysis. Unintended actions led to an unintended outcome: mourn the death, console the nurse, and fix the system. These three actions lead the safety community to wonder why RaDonda Vaught is being prosecuted for a medication error. How can the State of Tennessee prosecute a nurse for a mistake and outcome she did not intend? This is a flawed understanding of reckless homicide. RaDonda Vaught is not being prosecuted because she made a mistake. She is being prosecuted because the people of Tennessee believe they see a link between a nurse’s choices and a dead patient. RaDonda Vaught is facing prosecution for being what the prosecutor and grand jury see as the healthcare equivalent of the drunk driver who runs a red light, killing a helpless pedestrian in the crosswalk.

Thus, it is RaDonda Vaught’s choices that we need to evaluate: her choice to obtain the medication via override, her choice not to confirm the drug at the dispensing cabinet and at the point of administration, and her choice not to monitor the patient after administration of the drug. It is worth pointing out that some of Vaught’s sequential failures here might have been human error. Perhaps Vaught’s tunnel vision on the powdered form of the drug distracted her from her ordinary confirmation when she took the drug out of the dispensing cabinet. Sometimes events are indeed the rare sequence of statistically unlikely errors all happening at the same time. That said, it’s much more likely that one or two errors connected with a combination of latent behavioral norms. We’ll proceed in our analysis, in parallel to the prosecution, with the idea that the override, failed confirmations, and failure to remain with the patient were all choices Vaught made along the way.

To understand how Vaught’s choices fit within our five levels of intention, we have to explore in greater depth the difference between reckless and at-risk behavior. At-risk behavior is the risky choice we make, but with no conscious recognition of the unacceptability of the risk. At-risk behavior, usually in the form of a decision to deviate from a standard or rule, generally makes good sense to us at the time. Consider, as instructive, the scenario of driving down the freeway, going with the flow, at our standard 9 mph over the speed limit. We change lanes, but don’t signal our lane change, all while we’re deeply engrossed in the audio edition of our favorite John Grisham novel. At no time on our journey are we thinking we are taking risks with the lives of those around us. Our risk monitor, that little voice on our shoulder (see Dave’s Subs for further discussion of the risk monitor), is not knocking on the door of our conscious thoughts, screaming at us, letting us know that we’re endangering the lives of those around us. Our risk monitor is silent; our conscious thought is blissfully focused on our book. Yet, we are knowingly violating rules, from the speed limit to the requirement to signal lane changes. Suddenly, interrupting of traffic, 40 mph faster than all of us going 9 mph over the speed limit. Our risk monitor immediately fires, judgment brews: there, in front of us, pulling away, is a reckless driver. We’re both violating the rules of the road, yet we qualitatively see the Corvette driver as different from us. We, speeding, not signaling lane changes, listening to John Grisham, see ourselves as safe, but that Corvette driver is unacceptably dangerous. We see him as reckless.

The propensity to drift is part of our human nature. In our Just Culture model we call it at-risk behavior. Along with system design, we believe it should be the primary focus of a hospital’s patient safety program. The inescapable human error is less the issue; at-risk behavior is where our focus should be. That said, it requires some intellectual honesty about our propensity to drift. Honesty that the Tennessee jury, and our healthcare system, might be unwilling to entertain.

Our model of Just Culture puts considerable focus on our propensity to drift. Improving system design and managing at-risk behavior are the center of our work to build highly-reliable outcomes. That said, most of today’s purported “just culture models” reject the idea of at-risk behavior. It’s just too messy. Rather, it’s human error or reckless behavior. It’s “violators” versus well-meaning human beings who made a mistake. It’s good versus evil. There is no middle ground. Many who follow the work of Sidney Dekker or use James Reason’s unsafe acts algorithm have adopted this more rule-based approach. If it’s an inadvertent violation, it’s for the safety professional; if it’s a choice to violate, off to the human resources office (or prosecutor) you go.

It would be up to a jury of RaDonda Vaught’s peers, or in this case the criminal jury, to determine if she was reckless. Recklessness is a reflection of culture, not a proclamation from the king. I cannot proclaim that Vaught’s actions were at-risk because I do not live in her local culture, nor do I understand what risks she and her fellow nurses see in their local environment. Given that, let’s say the jury of her peers finds no recklessness, but instead finds one human error and four at-risk behaviors. Given that, was RaDonda Vaught’s conduct still criminal? The answer is yes, unfortunately, according to Tennessee law. Had the prosecutor indicted RaDonda Vaught under the negligent homicide law, it would have only required a showing that RaDonda Vaught should have seen the substantial and unjustifiable risk she was taking. If this were the case, I think criminal negligence would be easy to prove. Did Vaught make a mistake? Yes. Should Vaught have known she was carrying the wrong drug in her hand? Yes. Like every other state, in the interest of safety, the good people of Tennessee have made both human error and at-risk behavior a crime.