EDN 812 Module 3 Negligence, Malpractice and Crime Example

Negligence, Malpractice or Crime? Sorting Liability After a Nurse's Fentanyl Diversion in Surgical Services

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Doctor of Education Program, Aspen University

EDN 812: Legal and Ethical Issues in Health Care Administration

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Month Day, Year

Negligence, Malpractice or Crime? Sorting Liability After a Nurse's Fentanyl Diversion in Surgical Services

In the spring, pharmacy analytics at Sable Creek Health's composite 120-bed community hospital flagged a perioperative nurse whose fentanyl withdrawals from the automated dispensing cabinet ran at more than three times the median for her unit. The same week, two patients in the recovery area reported pain far beyond what their procedures and charted doses would predict. An investigation found that over roughly four months the nurse had replaced fentanyl in prepared syringes with saline and kept the drug for her own use. She admitted the diversion, entered treatment and was placed on leave. This paper separates the legal categories the case raises, negligence, malpractice and intentional criminal acts, identifies who may be liable and on what theory, and sets out the organization's duties to report, to notify patients and to prevent a recurrence.

Why the Categories Matter

Negligence, malpractice and crime are often blurred in conversation, but they carry different standards of proof, different defendants, different insurance consequences and different remedies. A leader who treats a diversion case as simply bad conduct by one employee may miss the hospital's own exposure, and a leader who treats it only as a liability problem may miss its criminal and regulatory dimensions. Berge et al. (2012) call diversion a multiple-victim crime, because its harms reach patients denied analgesia or exposed to infection, colleagues working beside an impaired clinician, the diverter and the organization itself.

The Elements of Negligence

Negligence is a failure to use reasonable care that causes harm. A plaintiff must show four elements: a duty owed to the plaintiff, a breach of that duty, causation linking the breach to the injury, and damages. All four must be present; a careless act that harms no one is not actionable, and neither is an injury that would have occurred anyway. In a hospital, the duty usually arises from the relationship between the patient and the organization or clinician, and the harder elements to prove are breach and causation.

Malpractice as Professional Negligence

Malpractice is negligence by a professional acting in a professional role, measured against the standard of care that a reasonably prudent member of the same profession would provide in similar circumstances. Because a jury cannot know that standard unaided, malpractice claims usually require expert testimony, and most states add procedural steps such as certificates of merit or review panels. The malpractice system is also less accurate than its critics and defenders tend to assume. In a review of 1,452 closed claims, 37% involved no error, most of those claims received no payment, most injuries caused by error (653 of 889) did lead to payment, and 54 cents of every dollar of compensation went to administrative costs such as lawyers and experts (Studdert et al., 2006).

Intentional and Criminal Acts

Diversion is neither negligence nor malpractice. It is intentional conduct. Taking a controlled substance for personal use is a crime under federal and state drug laws, and replacing a drug with saline in a syringe meant for a patient can also bring charges for tampering with a consumer product, a federal offense that prosecutors have used against health care workers who diverted injectable opioids. Intentional acts also change the civil picture. A patient who received saline instead of the charted analgesic has a claim against the nurse for an intentional wrong, and a nurse's professional liability insurance commonly excludes intentional and criminal conduct, which leaves injured patients looking to the hospital.

The Hospital's Own Liability

A hospital is usually vicariously liable for its employees' negligence within the scope of employment, but many courts hold that deliberate criminal acts done for the employee's own purposes fall outside that scope. The stronger claims against Sable Creek are therefore direct. Under the doctrine of corporate negligence, a hospital owes patients its own duty to maintain safe systems and to supervise the people who work there. Federal drug rules also require every registrant to maintain effective controls against theft and diversion. If the dispensing cabinet reports had shown the nurse's pattern for weeks before anyone acted, or if waste of unused doses was routinely cosigned without watching, a court could find that the hospital breached its own duty and that the breach allowed patients to go without pain relief.

Who May Be Liable, and on What Theory

The table summarizes the exposure the case creates.

Causation and Damages

For the two patients who complained of pain, causation is fairly clear and the damages are real but modest: several hours of preventable suffering. The larger question is whether anyone was exposed to infection. Tampering with injectable drugs has caused serious outbreaks. In one investigation, a surgical technician infected with hepatitis C who diverted fentanyl at two facilities was linked to 18 patients with closely related virus, and the facilities notified 5,970 patients of possible exposure; investigators found that weak procedures for securing controlled substances had given the technician access (Warner et al., 2015). At Sable Creek, the nurse tested negative for bloodborne viruses, but the infection prevention team and the county health department still reviewed which patients received syringes she prepared.

Duties to Report

The case triggers several reporting duties, each with its own clock. Sable Creek must send written notice to its regional Drug Enforcement Administration office no later than one business day after discovering a theft or significant loss of controlled substances, and then file the formal loss report. The state board of nursing must receive a report under the state's practice act, and the hospital's policy sends confirmed diversion involving possible patient harm to local law enforcement. Internally, the event goes to the patient safety committee and, because patients received something other than the charted drug, to the risk manager for disclosure planning.

Telling Patients

Patients whose procedures the nurse supported over the four months have a right to know that their pain medication may have been affected. After review with the health department, Sable Creek sent letters to 212 patients, explained what had happened in plain language, apologized, offered a phone line staffed by nurses and offered testing at no cost for bloodborne infections, as a precaution. The two patients who complained of pain received personal calls from the chief nursing officer. Early, honest disclosure is ethically required, and it also tends to reduce the anger that drives litigation.

Controls That Reduce Diversion

Prevention depends on many small controls working together, because diversion can occur at any point from the pharmacy shelf to the waste bin (Berge et al., 2012). Sable Creek is adding daily review of dispensing analytics by a named pharmacist, witnessed waste in which the witness watches the drug leave the syringe rather than signing afterward, tamper-evident syringes for prepared opioids, locked waste containers that allow later testing, and random assays of returned syringes. A diversion response team drawn from pharmacy, nursing, anesthesia, security, human resources and legal counsel will meet within 24 hours of any credible signal.

A Just Response to the Nurse

A just-culture approach distinguishes honest error, at-risk behavior and reckless or intentional conduct, and it does not excuse the third. Diversion is intentional, and discipline and reporting are required. Substance use disorder is also an illness, and nurses with it often divert because of it. Sable Creek will support the nurse's referral to the state's alternative-to-discipline monitoring program where she is eligible, while cooperating fully with the board and prosecutors. Holding both commitments at once is uncomfortable, but it reflects the organization's duties to patients and to its own staff.

Lessons for Leaders

Three lessons carry beyond this case. First, the organization's exposure lies mostly in what it did or failed to do, not in what the nurse did. Second, data that no one reviews is not a control; the dispensing cabinet had recorded the pattern for weeks. Third, the ways staff respond to warning signs depend on culture: colleagues later said they had noticed the nurse's long bathroom breaks and changes in mood but did not know whom to tell. Leaders must make the route for that concern obvious and safe.

Conclusion

The diversion at Sable Creek involved a crime by one nurse, but the legal analysis turns on more than her conduct. Negligence and malpractice describe failures of care; diversion is an intentional act that leaves the hospital's liability resting on its own duties to control drugs, supervise staff and act on signals. By reporting promptly, telling patients the truth, strengthening its controls and responding to the nurse with both accountability and support, Sable Creek can meet its legal obligations and protect the trust that patients place in the drugs they are given.

References

Berge, K. H., Dillon, K. R., Sikkink, K. M., Taylor, T. K., & Lanier, W. L. (2012). Diversion of drugs within health care facilities, a multiple-victim crime: Patterns of diversion, scope, consequences, detection, and prevention. Mayo Clinic Proceedings, 87(7), 674-682. https://doi.org/10.1016/j.mayocp.2012.03.013

Studdert, D. M., Mello, M. M., Gawande, A. A., Gandhi, T. K., Kachalia, A., Yoon, C., Puopolo, A. L., & Brennan, T. A. (2006). Claims, errors, and compensation payments in medical malpractice litigation. New England Journal of Medicine, 354(19), 2024-2033. https://doi.org/10.1056/NEJMsa054479

Warner, A. E., Schaefer, M. K., Patel, P. R., Drobeniuc, J., Xia, G., Lin, Y., Khudyakov, Y., Vonderwahl, C. W., Miller, L., & Thompson, N. D. (2015). Outbreak of hepatitis C virus infection associated with narcotics diversion by an hepatitis C virus-infected surgical technician. American Journal of Infection Control, 43(1), 53-58. https://doi.org/10.1016/j.ajic.2014.09.012