On The Docket
David B. Brushwood, BSPharm, JD
An inadvertent error that violates practice standards is not a crime. This is a good thing. Otherwise, all health professionals could occasionally be punished for criminal wrongdoing. Everyone makes mistakes, but not everyone is a criminal. This important point was recently recognized by the Court of Appeals of Iowa in reversing the criminal conviction of a nurse who had misinterpreted a situation and mistakenly discontinued a patient’s medication.
Background
The nurse worked the night shift in a long-term care facility (LTCF). A resident complained to the nurse that he had not received his clozapine for several days. A colleague had twice noted “NA” on the medication administration record (MAR) next to the resident’s clozapine, signifying that it was not available. The nurse discovered that the clozapine had not been included in the most recent 2-week supply of medication delivered by the pharmacy. The clozapine “could not be located anywhere in the nurses’
station.”
Based on this information, the nurse concluded that the clozapine “had been discontinued or otherwise changed to something else and that someone had failed to make that notation in the MAR.” To correct what he believed was a clerical error, the nurse noted “DC’ed” beside the entry for clozapine in the MAR.
In fact, the clozapine had not been discontinued by the resident’s physician. Due to the nurse’s error, the resident did not receive his medication for a total of 10 days. The resident was hospitalized for “worsening psychotic illness because his clozapine was inadvertently stopped.”
The state filed felony criminal charges against the nurse for “wanton neglect of a resident in a health care facility.” The state contended that the nurse had “on his own and without doctor authorization discontinued the resident’s antipsychotic medication.”
A jury convicted the nurse and he appealed the conviction.
Rationale
The appellate court noted that the state had the burden of proving the nurse “knowingly acted in a manner likely to be injurious to the physical or mental welfare of a resident.” The trial judge had instructed the jury on the minimum standard of care as set out in Board of Nursing regulations, which require that a nurse either carry out the orders of a prescribing physician or notify the prescribing physician that the orders cannot be carried out.
The nurse contended that reference to the Board of Nursing regulations was misleading because “although a violation of the minimum standard of care may be relevant in a license revocation hearing, it does not require that a nurse intentionally act in a way that would probably cause injury.”
The court agreed with the nurse, ruling that the reference to the regulations was “ill advised” because the language used in the regulations “could confuse the jury or lead it to misapply the law on whether [the nurse] knowingly acted in a manner likely to injury the resident.”
The conviction was reversed.
Discussion
Health professionals are frequently required to draw inferences from circumstances. These inferences can be mistaken, as happened in this case. The nurse clearly made a judgment error. Yet he equally clearly did not intend to harm the resident. The nurse’s error could perhaps be considered malpractice, and it could also subject the nurse to discipline by the licensing agency. But the error was not a crime.
The consequences of a criminal conviction can be extreme for a health professional. The conviction may serve as the basis of licensure revocation. Alternatively, it may lead to the health professional being excluded from employment at health care businesses and institutions that participate in federal health programs.
On the other hand, documentation must be accurate. It is a means of communication by one health professional to another. Notations on the MAR, or any other medical document, must be verified as accurate. Judgment errors in documentation should be addressed by administrative and civil authorities, and not by criminal courts.