www.loubar.org 6 Louisville Bar Briefs H H EE AA LL TT H H && W W EE LL LL N N EE SS SS CC O O RR N N EE RR Y O U R E X P E R T I S E . Y O U R L E A D E R S H I P . Y O U R L B A . NOVEMBER 2024 AWARENESS CALENDAR National Family Caregivers Month Diabetes Month International Survivors of Suicide Loss Day (11/23) PODCAST RECOMMENDATION WEBSITE RECOMMENDATION 28% of attorneys struggle with some level of depression Lead Where You Practice: Join the LBA's Section Leadership Team Are you ready to shape the future of your practice area? The LBA's 22 practice sections are the heartbeat of our local legal community, offering targeted networking, education and service opportunities for every specialization. As we look toward 2025, we're seeking passionate attorneys to take the helm as section chairs and vice-chairs. Ready to step up? Contact Lisa Anspach at [email protected] to learn about available leadership positions for 2025. As the First State to Decriminalize Medical Errors, Kentucky Reinforces the Importance of Patient Safety in Healthcare Virginia Leigh Schell After passing unanimously in the Kentucky General Assembly, House Bill 159 was signed into law by Governor Beshear on March 26, 2024. HB 159 provides criminal immunity to health care providers for inadvertent medical errors. Coincidentally, it was signed into law the week following National Patient Safety Week. HB 159 became law two years after a Nash- ville jury convicted RaDonda Vaught, a nurse at Vanderbilt University Medical Center, of reckless homicide and abuse of an impaired adult for the death of a 75-year-old patient. Ms. Vaught inadvertently administered the paralytic vecuronium instead of the sedative Versed to her patient, which prosecutors later claimed resulted in the death of the patient. Ms. Vaught did not intend to kill her patient; rather she made a series of mistakes in retriev- ing and administering the medication leading to the fatal error. Even though Ms. Vaught reported the medication error, she still faced criminal charges, which was unusual given that medical errors are not uncommon in the health care setting and providers who make inadvertent errors typically do not face criminal charges. Her guilty verdict shocked health care providers nationwide, many of whom were nurses who rallied behind her. Health care experts were concerned that the verdict would negatively impact patient safety by dissuad- ing health care providers from self-reporting medical errors and would cause nurses to leave the profession in droves. At Ms. Vaught’s sentencing, Judge Jennifer Smith noted that “[t] his was a terrible, terrible mistake” and sen- tenced Ms. Vaught to three years of probation instead of eight years in prison, the maximum sentence she was facing. Ms. Vaught also lost her nursing license permanently. The family of the patient settled its civil lawsuit with Vander- bilt shortly after the patient died. The Purpose of HB 159 Pursuant to HB 159(2), “a health care provid- er providing health services shall be immune from criminal liability for any harm of dam- ages alleged to arise from an act or omission relating to the provision of health services, except as provided in subsection (3) of this section.” Health care provider is broadly defined and includes all health care providers from nurses and physicians to therapists and lab technicians who may come in contact with a patient. The General Assembly amended the bill to make it clear that criminal immunity only applies to those health care providers who are actual clinicians caring for patients, not hospital administrators such as CEOs. As set forth in HB 159(3), there is no criminal immunity for “gross negligence or wanton, willful, malicious, or intentional misconduct.” As to what may constitute grossly negligent criminal conduct in the health care setting in Kentucky remains to be seen, but presumably it would require the necessary criminal intent to harm a patient. HB 159 does not limit civil liability for medical negligence, including gross negligence, which is now more often than not included as a claim in civil medical malpractice actions. When HB 159 was introduced in the Kentucky House of Representatives, Rep. Patrick Flan- nery stated that its purpose was to protect frontline health care providers from being criminally charged for inadvertent medical errors and to help the Commonwealth attract health care workers, particularly nurses. Rep. Flannery noted that “[i]t is important for health care workers to self-report any er- ror or mistake that they make so the system, processes, and procedures can be amended to help prevent human errors in the future. With potential criminal charges over their heads, self-reporting could be stifled.” He also noted that the bill was supported by the Kentucky Nurses Association and the Kentucky Medical Association. According to the “Kentucky Nurse Workforce Projections: 2022-2035” report prepared by Global Data for the Kentucky Hospital Asso- ciation, “Kentucky faces significant challenges with attracting people into a nursing career and retaining its current nurse workforce. The COVID-19 pandemic exacerbated these (continued on next page) PROFESSIONAL EXCELLENCE
