Just Culture, Liability Concerns, and Ensuring a Safe Working Environment

With the recent events at Vanderbilt Hospital and the conviction of RaDonda Vaught, it is safe to say that the nursing world turned upside down with a single verdict. Vaught was convicted of criminally negligent homicide and gross neglect of an impaired adult on March 25, 2022. On May 13, 2022, Vaught received a sentence of probation. Although she did not receive jail time, it does not diminish the fact that she was charged and convicted.

A nurse being convicted evokes strong emotions. News of this verdict was like a shot heard around the nursing world; the tension among new nurses was apparent. These feelings also were incredibly challenging for nurse educators in the perioperative world as we confronted tough questions. What did this mean for the “just culture” that we spent our entire careers working toward?

Just Culture

 A just culture means feeling comfortable and protected within a high-stress workplace where mistakes have serious consequences. A just culture is one where nurses grow from their mistakes and share in the hope of preventing others from making the same errors. We use errors as teaching moments, always with the mindset of working toward nursing excellence. AORN states, “All perioperative nurses and health care organizations should strive to create a culture of patient safety that provides an atmosphere where perioperative team members can openly discuss errors, process improvements, or system issues without fear of reprisal.”¹ 

Civil vs. Criminal Cases

If the nursing world fears the criminalization of medical errors, does that mean nurses now need to consider whether they will risk jail time to pursue a nursing career? One thing to keep straight is that being found liable in a civil case and being found guilty in a criminal case are two very different things (Figure 1). In a criminal case, a police department investigates a death or injury and works with a prosecutor’s office to bring charges against you for committing a crime. The prosecutor must prove your guilt beyond a reasonable doubt to a judge or a jury to get a conviction. 

In a civil case or lawsuit, someone (the plaintiff in the suit) says that you or your hospital took or failed to take action that resulted in harm to a patient. One common allegation is for a plaintiff (usually a patient or their family) to say you acted negligently. Once the allegation is made, it is up to a judge or jury to determine if you are liable for the harm caused. If you are found to be liable in a civil case, there will be a judgment against you, not a conviction. 

There may also be situations in civil cases when an attorney will try to say that a nursing supervisor also should be held responsible for the negligent acts of their nurses. This is called vicarious liability. An attorney may argue that a nursing supervisor is vicariously liable for harm due to inadequate supervision of the nurse if the supervisor failed to address problematic behavior according to hospital policies or delegated tasks out of the nurse’s scope of practice. While this may sound like a scary concept to supervisors and charge nurses, there are steps that they can take to avoid this scenario. It is essential that the charge nurse or nursing supervisor follows hospital protocol when assigning tasks or realigning nurses’ performance. Adherence to policy serves two purposes: (1) it helps educate nurses in areas where supervisors have observed a lack of understanding or judgment and (2) it creates a record that shows adherence to protocols, thus showing commitment to a supervisory role. By following protocols, supervisors protect themselves, their fellow nurses, and the patients.

Tips for Novice Nurses

As a novice nurse, you can incorporate the following three steps into your practice to ensure a safe working environment for your patients and colleagues: 

1. Be aware of your discomfort with a task or a course of action.
2. Set aside worry, concern, or fear of judgment.
3. Always step forward with a question.
   

Although challenging and sometimes scary, bringing your concerns forward will safeguard you, your patients, and your colleagues. Remember, it is likely you are not alone, and your fellow nurses have similar worries. While learning, you must not forget that no questions are bad questions, just opportunities to learn or grow in the profession. What is even more important is knowing the nursing profession is here for you, and you are not alone.

Cornell Law School’s online Legal Information Institute is a great resource that lets you look up legal terms or concepts (such as “vicarious liability”) you want to learn more about. Access it free here: https://www.law.cornell.edu/wex.

Reference

1. AORN Position Statement on Criminalization of Human Errors in the Perioperative Setting. Denver, CO: AORN, Inc; 2018.

AORN Resources

Open access

• AORN Position Statement on Criminalization of Human Errors in the Perioperative Setting