Dr KK
Aggarwal & Advocate Ira Gupta
RaDonda Vaught, a nurse
working at Vanderbilt University Medical Center, has been charged with reckless
homicide in the death of a patient, Charlene Murphey. She is facing criminal
prosecution by the State of Tennessee. She typed in “VE” in the pharmacy
computer and selected the wrong drug to administer—VECURONIUM instead of
VERSED.
She made a mistake in
believing that the first drug on the screen was the drug that she had intended.
The natural law principle is of not putting fellow humans
at imminent danger of serious bodily injury or death. But, there are certain
terms we must understand:
Reckless endangerment is the conscious
disregard of a known substantial likelihood of injury to the patient (Am J
Forensic Med Pathol. 2009;30(1):18-22).
Reckless homicide is a crime in which the perpetrator was aware that
their act (or failure to act when there is a legal duty to act) creates
significant risk of death or grievous bodily harm in the victim, but ignores
the risk and continues to act (or fail to act), and a human death results
Criminally negligent homicide: Negligence
is a lesser crime than recklessness.
Recklessness is
the conscious disregard of a substantial and unjustifiable risk. It is seeing,
in the conscious part of our brain, a substantial and unjustifiable risk, and
with that knowledge, choosing to follow through with our conduct.
Negligence,
in contrast, is the failure to see a substantial and unjustifiable risk that we
should have seen. In recklessness, we ignore the risk we see; in negligence, we
don't see the risk that we should have seen.
There are five levels of
intention toward harm in descending order of culpability
1.
Purpose
2.
Knowledge
3.
Recklessness
4.
At-risk
5.
Human error
Purpose is the express goal of
causing harm, while knowledge is knowing that harm is going to occur.
While purpose and knowledge
are very similar but are different 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.
Recklessness is the conscious
disregard of a substantial and unjustifiable risk (drunken driving). The
moral culpability of recklessness is not located in a desire to cause harm. It
resides in the proximity of the reckless state of mind to the state of mind
present when there is an intention to cause harm. There is, in other
words, a disregard for the possible consequences. The consequences
entailed in the risk may not be wanted, and indeed the actor may hope that they
do not occur, but this hope nevertheless fails to inhibit the taking of the
risk. Certain types of violation, called optimizing violations, may be
motivated by thrill-seeking. These are clearly reckless.
In order to hold the existence
of criminal rashness or criminal negligence it shall have to be found out that
the rashness was of such a degree as to amount to taking a hazard knowing that
the hazard was of such a degree that injury was most likely imminent. The
element of criminality is introduced by the accused having run the risk of
doing such an act with recklessness and indifference to the consequences
(Hon’ble Supreme Court of India in the matter Jacob Mathew vs State Of
Punjab &Anr on 5 August, 2005)
The Indian Penal
Code (IPC) enacted as far back as in the year 1860 sets out a few vocal
examples.
Section 88 of
IPC in the Chapter on General Exceptions provides exemption for acts not
intended to cause death, done by consent in good faith for person's
benefit.
Illustration as mentioned in
Section 88 of IPC:A, a surgeon, knowing that a particular operation is
likely to cause the death of Z, who suffers under a painful complaint, but not
intending to cause Z's death and intending in good faith, Z's benefit, performs
that operation on Z, with Z's consent. A has committed no offence.
Section 92 of IPC provides
for exemption for acts done in good faith for the benefit of a person without
his consent though the acts cause harm to a person and that person has not
consented to suffer such harm. There are four exceptions listed in the Section
which is not necessary in this context to deal with.
Illustration as mentioned in
Section 92 IPC:
(a) Z
is thrown from his horse, and is insensible. A, a surgeon, finds that Z
requires to be trepanned. A, not intending Z's death, but in good faith, for
Z's benefit, performs the trepan before Z recovers his power of judging for
himself. A has committed no offence.
(b) A,
a surgeon, sees a child suffer an accident which is likely to prove fatal
unless an operation be immediately performed. There is no time to apply to the
child's guardian. A performs the operation in spite of the entreaties of the
child, intending, in good faith, the child's benefit. A has committed no
offence.
Section 93 of IPC saves
from criminality certain communications made in good faith.
Illustration as mentioned in
Section 93 of IPC: A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient dies in consequence of the
shock. A has committed no offence, though he knew it to be likely that the communication
might cause the patient's death.
Negligence is simple human
error. Negligence can be of two types of behavior: human error and at-risk
behavior.
At-risk behavior is usually in the form of a decision to
deviate from a standard or rule. It is a choice, but where the risk is not seen
or mistakenly believed to be justified. At-risk behavior is the risky choice
one makes but with no conscious recognition.
Human error is the unintended behavior, the slip, lapse,
or mistake.
To Drift Is Human. If
we criminally prosecute every healthcare provider who has knowingly deviated
from a safety protocol—skipping hand hygiene or failing to label a syringe—a
very large portion of our providers would be in jail rather than providing
care. The propensity to drift is part of our human nature.
In all such cases we must
first see three constituents of negligence:
1.
A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former's conduct within
the scope of the duty;
2.
Breach of the said duty; and
3.
Consequential damage.
Cause of action for negligence
arises only when damage occurs; for, damage is a necessary ingredient of this
tort.
Possible punishments
· Accept/console/
financially compensate the human error
· Coach
the at-risk behavior
· Leave
sanction/punishment for the reckless, knowledge, and purpose to cause harm.
The case in question: Looks
like to be a case of at-risk behavior and not recklessness.
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of
Medical Associations in Asia and Oceania
(CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of
India
Past National President
IMA
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