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Error and Punishment

November 20, 2006 -- Recent items in The Capital Times (Madison, WI) deal with the criminal charge filed against veteran OB nurse Julie Thao. Thao allegedly made a medication error that caused the tragic death of a young mother, Jasmine Gant. Steven Elbow's November 2 piece "St. Mary's Nurse is Charged; Medication Error Led to Teen's Death" describes the criminal complaint, which alleges that Thao did not follow proper procedures. The piece gives no context, and no indication that the reporter sought comment from Thao, her attorney, or any expert in health care errors. The result is essentially a narrow presentation of the state's case against Thao. A story in the November 9 Capital Times by Anita Weier and Mike Miller does a better job. "Nurses rally in support of colleague; Many outside courthouse say charges too severe" describes a rally held during Thao's first court appearance. (Supporting nurses have also set up a defense fund for Julie Thao.) The piece includes extensive comment from Thao's supporters. But even it says nothing about the clinical context of the incident, such as the staffing level. Like a recent case in which a coroner's jury found a patient's death in an ED waiting room to be homicide, this Wisconsin case has attracted national attention. Pennsylvania's Institute for Safe Medication Practices (ISMP) has released a supportive piece, "Since when is it a crime to be human?" The ISMP says it joins the Wisconsin Nurses Association and Wisconsin Hospital Association in opposing criminal prosecution of health workers for "unintentional errors." Today the American Nurses Association released a statement that questions application of the criminal law here, and lists some of the systemic problems that can contribute to such errors. No piece we have seen makes clear how the error alleged here differs from negligent care-related acts that, however tragic for those harmed, do not result in criminal charges. It seems to us that opposing the prosecution of Thao--the potential negative effects of such charges on nursing practice are considerable.

Learn more about the legal defense fund set up for Julie Thao.

Analysis of the November 2 Capital Times piece

Analysis of the November 9 Capital Times piece

Analysis of Suzanne Gordon's November 15 op-ed

The November 2 Capital Times piece reports that former St. Mary's Hospital nurse Thao has been charged with "neglect of a patient causing great bodily harm." Thao, who has lost her job at St. Mary's, faces up to six years in prison for the felony charge. The basic claim is that Thao mistakenly gave the 16-year-old Gant an epidural anesthetic intravenously, thinking the drug was penicillin prescribed for a strep infection Gant had. Gant reportedly died within the hour, though her son Gregory was delivered "successfully by Caesarian section." The piece focuses on Thao's alleged "failu[ure] to follow nearly every safeguard" the hospital had for preventing such errors. She allegedly failed to use the "Bridge System" of medication scanning, and failed to read the drug's "hot pink" warning label or follow the "five rights" of medication administration. Thao reportedly told investigators that she got the epidural bag to show it to Gant, placing it on a counter--where another nurse placed the penicillin. Apparently Thao later picked up the wrong bag and injected it. Gant soon began seizing. The piece reports that Thao's supervisor said the failure to scan the medication even after administering it "completely defeated the purpose of the system." The piece also notes that "[e]ven after injecting the drug, instead of scanning the label [Thao] started rewinding a video tape, the complaint states." The piece does say that Thao told an investigator that she had used the wrong bag in the excitement after Gant had become agitated, though "other accounts differed." The piece quotes Thao as saying: "I allow priority for compassion to override the need for detail." The piece does at least note that Thao has no past disciplinary actions against her.

This piece is unbalanced. It does include a little context, but it fails to consult anyone who might provide the larger context that might help to explain what happened, such as the full range of relevant facts in the clinical setting at the time. And even its choice of which details to provide seems designed to convey that Thao is a bad actor. Note the inclusion of the supervisor's statement about Thao defeating the system, but no statement about whether hospital staff generally follow the system, whether the system has had any problems, or whether anyone else has ever made a similar error. Note the description of Thao and the videotape, including the judgmental use of the word "even," and the failure to specify what tape it was. Was it the latest episode of a soap opera that Thao wanted to watch, as a reader might easily conclude, or was it something to educate or calm the patient? The piece reports that Thao ascribed her error in part to the excitement caused by the patient being upset, but adds that "other accounts differed." That makes it sound like Thao alone is suggesting the patient was upset in a ploy to save herself. How did the other accounts differ? Did they differ in a consistent way? What position were the other speakers in relative to Thao? What were their apparent motives? In addition, the quote attributed to Thao about compassion, presented without any context, suggests that Thao thinks "compassion" is more important than avoiding a lethal error, which we doubt was her intent. This press article essentially adopts the one-sided presentation of the criminal complaint.

One notable omission is any comment (or even a refusal to comment) from St. Mary's itself. It seems, though, that St. Mary's is taking an approach that differs from the one reportedly taken by an Indiana hospital that recently refused to discipline NICU nurses who had mistakenly administered fatal doses of Heparin to several newborns. That hospital instead vowed to improve its systemic safeguards. A September report on that case in the Indianapolis Star also differs from this one, presenting a balanced look at the tragic nursing errors in the NICU, as well as expert comment about how such things can happen, and what might be done to prevent them.

Send Madison Times reporter Steven Elbow an email at to explain how his article could have been more balanced.

The November 9 Capital Times piece is better. It reports that more than 100 nurses from three Madison hospitals rallied in front of the Dane County Courthouse during Thao's initial court appearance. The court allowed Thao to remain free on a "signature bond." Prosecutor Eric Defort referred to Thao's two previous convictions for shoplifting. Defense attorney Stephen Hurley said he hoped the state would cease its efforts to "prejudice the jury pool." Supporters of Thao from St. Mary's, Meriter Hospital, and University Hospital filled the courtroom, and the piece has many quotes from them. Theresa Feiner questioned the use of the criminal law for this type of accident, noting that at her hospital "[w]e have safeguards in place, too, (but) I can see how it could happen." Denise LeRoy carried a sign saying "Nursing Needs Confidence, Not Fear." The piece reports that several current and former St. Mary's nurses came to personally support Thao. Pat O'Neal said that Thao was "very competent," while Shelly Campbell said that "[i]f there was anything wrong with me, I'd want her to care for me." Both the Wisconsin Nurses Association and the Wisconsin Hospital Association urged nurses to participate in the rally, noting that it was the first time a nurse or physician had been charged for "unintentional medical errors." The piece says that "[e]xamples of cases provided by Department of Justice attorneys generally involved charges against nursing assistants or administrators at nursing homes or other long-term care facilities."

This last point gets back to one of the core issues--why is the criminal law being applied here, and not to many other examples of good faith errors that may cause serious harm? The reference to nursing assistants and administrators is unclear, but it suggests that the statute has been applied in the past to cases that are closer to the ordinary meaning of the term "neglect"--cases in which someone is alleged to have done something that amounts to abandonment of a patient. Obviously, that is a different situation from that of a licensed health professional who, perhaps under pressure or in a flawed clinical environment, has made an affirmative error in providing direct care.

The quote from Feiner underlines that even with "safeguards," errors can occur, and even this later piece would have benefited from further exploration of that. For instance, the September Indianapolis Star piece consulted several experts on hospital errors (sadly, none was a nurse). This piece might have explored what was going on at unit at the time Thao made the alleged error. What was the staffing like? How long had Thao been on duty? When was her last shift? What other patients did she have? Did she offer any reason for apparently not following the usual procedure other than giving "compassion"? What might account for the differing accounts of Gant's demeanor, other than that Thao is simply exaggerating or lying? Did the other witnesses have as good an opportunity to observe Gant as Thao did? Were there any other deficiencies in the hospital's medication administration systems? Were there any other factors in Gant's unfortunate death besides the apparent medication error? How might such errors be avoided in the future, at St. Mary's and elsewhere?

Of course, one unstated assumption here is that Thao's apparent error is anomalous: if we just send this one bad actor to jail, then we don't have to worry about whether there are any systemic factors in what happened. The ISMP analysis explores this in some detail, noting that there is "usually much more to a medication error than what is presented in the media or a criminal complaint." In particular, ISMP notes that medication administration safeguards are not foolproof, and may be riddled with problems beyond the individual nurse's control. The piece also says:

While there is considerable pressure from the public and the legal system to blame and punish individuals who make fatal errors, filing criminal charges against a healthcare provider who is involved in a medication error is unquestionably egregious and may only serve to drive the reporting of errors underground. The belief that a medication error could lead to felony charges, steep fines, and a jail sentence can also have a chilling effect on the recruitment and retention of healthcare providers--particularly nurses, who are already in short supply.

You may contact article authors Anita Weier and Mike Miller at

Suzanne Gordon's November 15 op-ed makes similar points. Gordon argues that system failures appear to have contributed greatly to Thao's apparent error. Gordon says these include poor medication checking and packaging systems, a bar code system that did not work properly, and the fact that Thao had been permitted to work too many hours just prior to the shift in question, since fatigue leads to more errors. Gordon suggests that the hospital has an obligation to implement human and technical safeguards that would make such errors effectively impossible to make. She closes by arguing that such errors cannot be effectively addressed if individuals are scapegoated for systemic problems, and that "patients will only be safe when error is openly reported, discussed, and corrected in a nonpunitive environment."

We do thank the Capital Times for its coverage of these issues, and for publishing Gordon's op-ed. Although discussion of nursing errors is often painful, it helps to show the public that the profession is a serious one, in which skilled professionals must make life-and-death decisions in caring for patients.

See our FAQ: Why do you call for more discussion of nursing errors and nursing malpractice in the mainstream media?

Donations may be made to the Defense Fund for July Thao

Supporters of Julie Thao, the Wisconsin nurse charged with criminal neglect after a medication error allegedly caused a patient's death, have set up a fund for those wishing to contribute to her legal defense. Donations may be made by sending checks to:

Friends of Julie T.
c/o Park Bank
P.O. Box 8969
Madison, WI 53708

Below is a reprint of Suzanne Gordon's op-ed:

Hospitals Made Less Safe When Individuals Blamed

The Capital Times :: EDITORIAL :: A10

Wednesday, November 15, 2006

Wisconsin officials believe they've done the right thing by charging Madison nurse Julie Thao with a felony for making a fatal medication error at St. Mary's Hospital last July. "The circumstances of the case go well beyond a simple mistake," contends Mike Bauer of the Department of Justice.

Indeed they do. Which is why pressing charges against a veteran nurse is going to make hospitals less safe.

Thao worked on a labor and delivery unit until she was fired four months ago. For 15 years, she had, by all accounts, been an exemplary RN. Yet she accidentally delivered a powerful painkiller, rather than penicillin, to a young woman who was giving birth. The anesthetic stopped Jasmine Gant's heart, causing her death (although hospital staff were able to save her baby).

Contrary to the theory of individual blame now being pursued by prosecutors, this terrible tragedy confirms what a 1999 report by the Institute of Medicine found -- that medical errors are usually the result of system failures.

In this particular case, from what we know now, the system failures included excessive RN overtime work, which led to dangerous fatigue; poorly designed medication packaging and checking; improperly functioning drug bar coding; and insufficient training with computer systems.

Numerous studies have shown that long hours and sleep deprivation adversely affect the performance of RNs and physicians. Researchers have warned hospitals that error rates increase after staff members have been on the job for more than eight to 10 hours at a time -- and when they fail to get adequate rest between shifts. Yet health care employers around the country, including St. Mary's, impose no limits on RN overtime.

Many hospitals actively encourage nurses to work additional hours beyond their scheduled shift. Because the basic shift for many RNs is now 12 hours instead of eight, "overtime" can mean a workday that's 14 or 15 hours long.

The day before this tragic error, Julie Thao had worked back-to-back shifts, for a total of 16 hours. It was midnight, and she was due back at the hospital at 7 a.m. So, rather than drive home and back, she spent what was left of the night in a hospital bed.

The medication error that cost Gant her life should have been impossible to make. If the epidural anesthesia needed to reduce the pain of labor and delivery had been packaged in a bag whose cap did not fit onto the main IV, no one could have put it directly into the bloodstream instead of the epidural space around the spine. If, as in some hospitals, two nurses check and double-check IV bags before they are hooked up to the main pump, this reduces the likelihood of error.

Instead of such safeguards, hospitals, like St. Mary's, are putting increasing faith in what are known as bar code computerized medication administration (BCMA) systems, which nurses use to scan bar codes on drugs and on patients' ID wristbands. This supposedly prevents nurses from giving the wrong patient the wrong drug, or administering the wrong dose, at the wrong time, through the wrong route.

Researchers like Ross Koppel at the University of Pennsylvania Medical School have documented the many errors these so-called error-proof devices actually create. Although promising, they do not work 100 percent of the time, says Michael Cohen at the Institute of Safe Medication Practices. Nor do they work with all medications.

The bar code systems, just like the bar codes in supermarkets, in fact, have so many glitches that nurses must frequently bypass them.

In the case of the newly installed medication bar code system in St. Mary's, Thao insists that the system was having problems reading clear IV bags, just like the ones used for the patient. Also, she says, the system had been having problems that week, and nurses were specifically instructed to give the medications when needed and document them manually. Plus, Thao was not fully trained in the system's use.

* Unfortunately, none of these system errors will be addressed if the state continues to blame an individual for system failures and tries to criminalize what was clearly a mistake, albeit a tragic and fatal one.

The state's hospital, nursing and medical associations and nursing unions have protested these charges because they recognize that patients will only be safe when error is openly reported, discussed, and corrected in a nonpunitive environment.

Nurses, doctors, pharmacists, lab techs and other health care workers will never admit to errors and help to illuminate their causes if they fear that they will lose their jobs, go to jail or face serious financial consequences.

Follow-up from The Capital Times

"St. Mary's settles suit for $1.9M in 2006 death of teen"

May 12, 2007 -- "The settlement [that] was approved May 9, 2007 by Dane County ... provides Gregory Gant with a trust fund, monthly support payments, college funds and a lump sum payment of $1.4 million when he turns 55..." more...


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