When Not Being Perfect Is a Crime

The scene of the crime. But was it a crime?

This is the tragic story of a woman and a girl woman and how not being perfect is a crime.

The woman is Julie Thao, a registered nurse at St. Mary's Hospital in Madison, Wisconsin, for 13 years who had outstanding job performance ratings. The girl woman was Jasmine Gant, a 16-year-old high school student who got pregnant.

The facts are these: On July 5 of last year, Gant went into labor and was admitted to St. Mary's Hospital.

Her nurse was Thao, who had worked a 16-hour shift from 8 a.m. to midnight on the July 4th holiday, slept over at the hospital and went back to work in the birthing unit at 7 a.m.

Gant's labor was complicated by an infection. Thao had intended to give her penicillin intravenously for the infection. Instead, she did not follow the hospital's bar-code system, which is used to double-check the accuracy of medication, after accidentally removing a bag for an epidural anesthetic from a locker. Ignoring the warning on the bag, she gave Gant the anethestic. Gant had a seizure and died a short time later. The baby survived.

St. Mary's quickly apologized to Gant's family. The state professional regulation and licensing department told the hospital to limit Thao's shifts to eight hours and later retroactively suspended her nursing license for nine months. It cited the 330-bed hospital for five violations but cleared it of any penalties after it updated its policies and initiated a re-education program for its nurses.

Then, in November a state prosecutor dropped a bombshell: Thao was charged with neglect of a patient and causing great bodily harm, a felony that carries a six-year jail sentence and hefty fine.

At a December hearing attended by about 40 nursing colleagues in support of Thao, the nurse told the judge between sobs that:

"There are no words to say how sorry I am. The death was entirely my fault. It should have been my life, not hers."

Thao added that she would suffer from "anguish and remorse" the rest of her life. She entered a no-contest plea to two misdemeanors. The felony count was dropped as part of a plea bargain agreed to by Assistant Attorney General Eric Defort. Thao was placed on three years probation.

Nursing and hospital officials have decried the unprecedented and malicious prosecution.

Wisconsin's nursing licensure and regulation system worked as it was intended. State regulators viewed the incident as an unfortunate accident as it should have been viewed. Many such accidents occur in hospitals, too many because of the conditions that nurses are forced to work under. The nine-month suspension was in contrast to years-long suspensions that the state metes out for drug impairment or intentional misconduct. In no cases are the penalties criminal.

St. Mary's says that overtime is voluntary, but nurses at many hospitals are guilt tripped into staying beyond their scheduled shifts by supervisors and administrators, and there is no reason to believe that St. Mary's is any different. The fact that Thao slept over at the hospital after a 16-hour shift is indicative that she and other nurses frequently worked long hours with little turnaround time.

The Wisconsin Department of Justice sees things very differently. In a statement about Thao's case that was extraordinary for overreaching, Department of Justice spokesman Mike Bauer stated that:

"It's left to the criminal justice system to address things like this if hospitals don't want their employees held accountable. In our view, with the civil and malpractice laws, the hospitals don't want to be held accountable, and the licensing laws are toothless. If you look at the licensing boards, they become in many cases captive of the industries they are to regulate."

Even the American Nursing Association, the wimpy national nurses group, issued a statement that took issue with the Thao's prosecution.

* * * * *

Accidents like the one that took Jasmine Gant's life are an unfortunate consequence of a proud and, need I say, vitally important profession that is under siege.

Nurses are expected to work unreasonably long hours day in and day out and sometimes are not given breaks to go to the bathroom or grab a bite to eat.

Nurses are expected to handle unreasonably large patient loads.

And nurses are expected to be perfect by their employers, their patients and by society at large -- an impossibly high standard that is not applied to other professions.

This makes the criminal charges against Julie Thao -- who intended no harm -- all the more reprehensible because her prosecution probably would not have withstood the scrutiny of a jury in a criminal trial had she not capitulated to a no-contest plea. Simply put, what she did was most unfortunate but not criminal.

But that's not the half of it.

As I have noted previously, the nursing profession is in crisis, but that tends to get overlooked in discussions about the U.S. health-care system, which also is in crisis.

Because of the long shifts, patient loads and the insistence that they be perfect, many nurses are burning out and leaving the profession, but not enough new nurses are being graduated to make up the deficit.

What happened in Wisconsin will only make matters worse.

A punishment so unreasonable and malicious that it will frighten away people who want to become nurses. Why would someone invest in a $100,000 nursing education to be paid a mediocre wage, often without benefits (including, ironically, no health-care benefits) and stand the chance of being taken to court and having their life ruined for making a mistake?

A punishment so unreasonable and malicious that it chases people who already are nurses from hospitals to friendlier climes and could result in incidents being covered up?

I'm not trying to make Julie Thao into a martyr. I am urging you, especially if you are a health-care professional or are reading this because a nurse saved your life (as one did mine), to protest to the Wisconsin Department of Justice about its jaundiced view of the nursing profession and the state's professional licensure and disciplinary system.

The attorney general, J. B. Van Hollen, was elected in November and is the first Republican to hold that office in 16 years. He has a lot to prove, and a letting the state's professional regulation and licensing department do its job when it comes to disciplining nurses would be a good start.

You can write to Van Hollen at:

Wisconsin Department of Justice
P.O. Box 7857
Madison, WI 53707-7857

Van Hollen can be telephoned at 608-266-1221 or faxed at 608-267-2779. No email address was available on the WDoJ's website.

Asks him whether he'll ask to be taken to an out-of-state hospital if he is injured or becomes ill lest he be treated by a nurse in a Wisconsin hospital who is not perfect.

Demand that his office stop singling out Wisconsin's nurses for malicious prosecution.

And tell him that Kiko's House sent you.