Examining the Intersection of Medical Negligence and Criminal Law in Pa

July 12, 2022
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The country has been captivated lately by several high-profile criminal cases involving made-for-TV courtroom moments and casts of celebrity characters. One noteworthy case that has received less attention is that of RaDonda Vaught, a former nurse found guilty of abuse of an impaired adult and negligent homicide following the death of Charlene Murphey, a patient at Vanderbilt University Medical Center in Nashville, Tennessee. This case is significant for nonlawyers and lawyers alike, because it highlights the considerable legal risks medical professionals face simply by virtue of their profession.

Murphey was scheduled to undergo a PET Scan in December 2017. In preparation for the procedure, Vaught inadvertently administered an incorrect medication to Murphey after retrieving the medication from the facility’s “automatic dispensing cabinet.” Murphey went into cardiac arrest and died after being removed from life support. See, Gabriel Cripe, “Analyzing Abuse of Prosecutorial Discretion in the RaDonda Vaught Verdict,” University of Cincinnati Law Review Blog (May 12, 2022). Tennessee’s nursing licensing board revoked Vaught’s nursing license in the summer of 2021, but Vaught was then also criminally charged and tried before a jury in March. She was convicted and sentenced to three years’ probation on May 13.

The criminal prosecution of a medical professional because of a tragic, yet seemingly bona fide mistake has serious policy implications. The Vaught case invites consideration of several legal issues, such as the significance of professional disciplinary proceedings in connection with subsequent criminal prosecutions, the prosecution of criminal negligence generally, and the liability of health care facilities or organizations for the negligent acts of its health care workers.

Professional Disciplinary Proceedings Generally

Most professions requiring a license have an attendant disciplinary framework for practitioners. Pennsylvania has licensing boards for various professionals such as physicians, nurses, dentists, public accountants, estheticians and social workers. See, Occupational Licensure Requirements Snapshots, Pennsylvania Department of State, (last visited July 4, 2022). These disciplinary boards can revoke, suspend or impose other limits on licenses. Criminal conduct by a professional will often prompt disciplinary proceedings. Vaught’s licensure proceedings reportedly came after charges were filed but preceded her conviction.

Although professional disciplinary proceedings technically are not prosecutorial in nature, they do carry with them entitlement to certain procedural protections, including the Fifth Amendment right against self-incrimination, as well as due process rights under the Fourteenth Amendment. Notably, these proceedings involve a less demanding burden of proof—in some cases, a preponderance of the evidence—than criminal proceedings, which require the well-known showing of “beyond a reasonable doubt.” See Lyness v. Commonwealth, State Board of Medicine, 561 A.2d 362, 369 (Pa. Commw. Ct. 1989). In Pennsylvania, appeals from state licensing boards generally proceed to the Pennsylvania Commonwealth Court, where they are reviewed with a high degree of deference. See, e.g., Iqbal v. Bureau of Professional & Occupational Affairs, No. 1190 C.D. 2020, (Pa. Commw. Ct. Apr. 18, 2022). Professionals accused of misconduct often face the challenge of parallel proceedings, where they are defending themselves against disciplinary proceedings and criminal charges simultaneously. This can be particularly tricky given the differing burdens of proof and standards of review on appeal.

Criminal Negligence

Like other states, Pennsylvania recognizes negligence in the criminal context, and the standard of what constitutes criminal negligence is relatively high. See 18 Pa.C.S. Section 302 (b)(4) (“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”). One should be careful to note that “criminal negligence is a higher level of negligence than ordinary tort negligence, since it includes the mens rea component of a criminal offense.” And, the “mens rea of gross negligence is not the equivalent of criminal negligence; instead, the concept of gross negligence is encompassed within the concept of recklessness,” (citing Commonwealth v. Bostian, 232 A.3d 898 (Pa. Super. Ct. 2020), reargument denied (July 14, 2020), appeal denied, 244 A.3d 3 (Pa. 2021)).

While Pennsylvania’s Criminal Code recognizes criminal negligence, prosecution for medical mistakes remains relatively rare. Indeed, Vaught’s case has led to vigorous opposition from various medical professional interest groups that object to what they view as essentially the criminalization of mistakes, which are inherent in a health care setting.

A Pennsylvania county court addressed this policy argument over 20 years ago. See generally Commonwealth v. Byers, 43 Pa. D. & C.4th 506 (C.P. Venango Cty. 1999). In Byers, the Venango County Common Pleas Court considered numerous criminal charges filed against a group of physicians employed by the Pennsylvania Department of Public Welfare. The physicians were accused of simple assault, reckless endangerment, reckless failure to treat, and involuntary manslaughter, stemming from alleged performance of certain procedures without anesthesia, failure to treat a patient in respiratory distress, and failure to transfer a patient with hypothermia to an acute care facility. In an amicus brief filed in connection with multiple defendants’ motions to quash the criminal information and petitions for habeas corpus, the Pennsylvania Medical Society argued that criminal prosecution was not the appropriate mechanism for addressing medical errors. The society argued that these errors should be dealt with through disciplinary proceedings, and that prosecution could discourage healthcare workers from pursuing certain necessary medical treatment.

The court noted its respect for such policy considerations, but ultimately dismissed only the simple assault charges, stating that the physicians had already undergone administrative disciplinary proceedings. The court permitted the more serious charges of reckless endangerment and manslaughter to proceed. Although a case like Byers may not arise very often, such authority shows that once charges are filed, policy arguments from the medical community—similar to those raised by many nurses in support of Vaught—have not resonated strongly with Pennsylvania courts. The medical field can take little comfort in the court’s mere acknowledgment of these policy considerations.

Criminal Liability for Entities as a Result of the Acts of an Agent or Employee

Vaught’s case also raises interesting questions about the potential criminal liability of a health care entity for the acts of an employee. Vaught’s counsel reportedly asserted that Vaught wrongfully faced criminal liability alone, despite evidence of the hospital’s culpability. See Brett Kelman, “In nurse’s trial, witness says hospital bears ‘heavy’ responsibility for patient death” (Mar. 24, 2022).

Pennsylvania’s Criminal Code imposes criminal liability on certain business organizations, and states that “a corporation may be convicted of the commission of an offense if … the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.” Section 307 also speaks to liability for unincorporated associations, as well as persons acting or under a duty to act for an organization. Pennsylvania also has statutes that discuss liability for health care entities and professionals, but such provisions do not speak specifically to the liability of a health care corporation or organization for the acts of an employee.

In Commonwealth v. Pi Delta Psi, 211 A.3d 875, 879 (Pa. Super. Ct. 2019), the Superior Court addressed the criminal liability of a corporation charged with homicide offenses and other lesser offenses as a result of hazing activities carried out by fraternity members that resulted in the death of a member. The court discussed the appropriate standard of care in addressing an evidentiary ruling from the court below. It approved of the trial court’s conclusion that whether the corporation acted in accordance with the standard of care typical of other Greek organizations was “of no relevance in a criminal case” and that the corporation “would be vicariously liable for everything that the colony’s officers and the national president did in furtherance of … its initiations rituals.” Therefore, “to the extent that the local and national officers committed any crimes in causing the death of this associate member, so did the corporation.” Although not in the medical context, Pi Delta Psi, Inc. serves as an important example of the treatment of corporations for purposes of criminal proceedings, including the pertinent standard of culpability. Organizations are routinely held criminally liable for the conduct of an agent or employee.

Conclusion

RaDonda Vaught’s case represents a significant use of prosecutorial power aimed at a single, albeit tragic, act of medical negligence. The topics discussed above represent only a sampling of areas of the law implicated by this case, while the wider impact on the health care industry remain to be seen. If the treatment of Vaught becomes the trend, the medical community, already reeling from two years of a global pandemic, could suffer serious consequences. These types of prosecutions could cripple a vital segment of our professional community that is already heavily regulated and scrutinized.

Sarah Hyser-Staub is a litigation attorney and co-chair of McNees Wallace & Nurick’s white collar defense and internal investigations group. She helps business owners and public leaders navigate crises by safeguarding their rights and protecting them from government overreach. Lauren Anthony is an associate in the firm’s litigation group.