Nursing and the Law
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It’s Your Gavel… |
CHANCE OF SURVIVAL DIMINISHED
On the afternoon of May 20, the patient, Mr. Ard, began feeling nauseated. He was in pain and had shortness of breath. Although his wife rang the call bell several times, it was not until sometime later that evening that someone responded and gave Ard medication for the nausea. The nausea continued to worsen. Mrs. Ard then noticed that her husband was having difficulty breathing. He was reeling from side to side in bed. Believing that her husband was dying, she continued to call for help. She estimated that she rang the call bell for 1.25 hours before anyone responded. A code was eventually called. Unfortunately, Mr. Ard did not survive the code. There was no documentation in the medical records for May 20, between 5:30 PM and 6:45 PM, that would indicate that any nurse or physician checked on Ard’s condition. This finding collaborated Mrs. Ard’s testimony regarding this time period.
A wrongful death action was brought against the hospital, and the district court granted judgment for Mrs. Ard. The hospital appealed.
Ms. Krebs, an expert in general nursing, stated that it should have been obvious to the nurses from the physicians’ progress notes that the patient was a high risk for aspiration. This problem was never addressed in the nurses’ care plan or in the nurses’ notes.
On May 20, Ard’s assigned nurse was Ms. Florscheim. Krebs stated that Florscheim did not perform a full assessment of the patient’s respiratory and lung status. There was nothing in the record indicating that she completed such an evaluation after he vomited. Krebs also testified that a nurse did not conduct a swallowing assessment at any time. Although Florscheim testified that she checked on the patient around 6:00 PM on May 20, there was no documentation in the medical record. Ms. Farris, an expert witness for the defense, testified on cross-examination that if a patient was in the type of distress described by Mrs. Ard and no nurse checked on him for 1.25 hours, that would fall below the expected standard of care.
WHAT IS YOUR VERDICT?
To Be a Nurse: Swedish Hospital, Seattle, Washington
• Nursing is the honor and privilege of caring for the needs of individuals in their time of need. The responsibility is one of growth to develop the mind, soul, and physical well-being of oneself as well as the one cared for.
• In memory of all those patients that have enriched my life and blessed me with their spirit of living—while they are dying.
• There are many things I love about being an RN, but as a Recovery Room nurse, my favorite, by far, is being able to tell a groggy but anxious patient, “It was benign.”
• Excellence is about who we are, what we believe in, what we do with everyday of our lives. And in some ways we are a sum total of those who have loved us and those who we have given ourselves to.
• I have been with a number of people/patients when they die and have stood in awe. Nursing encompasses the sublime and the dreaded. We are regularly expected to do the impossible. I feel honored to be in this profession.
• To get well, I knew I had to accept the care and love that were given to me—when I did healing washed over me like water.
• Through all of this I was never alone.
• Thank you!
• In the caring for one another, both are forever changed.
• A friend takes your hand and touches your heart.
• To all of you whose names were blurred by the pain and the drugs.
• Don’t ever underestimate your role in getting patients back on their feet.
—Swedish Hospital, Seattle, Washington, Unknown Authors
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Describe how the scope of nursing practice continues to evolve.
• Describe common categories of nursing staff.
• Explain the process of obtaining nurse licensure.
• Describe a variety of the legal risks nurses encounter.
• Describe the ways in which a nurse is a patient advocate.
This chapter provides an overview of nursing practice, nurse licensure, and various nursing specialties, as well as a review of cases focused on the legal risks of nurses. The cases presented highlight those areas in which nurses tend to be most vulnerable to lawsuits.
11.1 SCOPE OF PRACTICE
The role of the nurse continues to evolve and expand due to a shortage of primary care physicians in rural and inner-city areas, ever-increasing specialization, improved technology, public demand, and expectations within the profession itself. A nurse who exceeds his or her scope of practice as defined by applicable statutes (e.g., nurse practice acts) can be found to have violated licensure provisions and thus be subject to disciplinary action.
The following table describes several of the key historical events that have led to the continuing expansion of the roles and duties of nurses in patient care settings.
The expanding scope of nursing practice is accompanied by increased ethical and legal risks.
Nurses are at risk for inappropriate professional relationships due to the broadening scope of nursing practice amidst rapid societal changes and pressures. The complexities of professional nursing relationships have outpaced awareness of ethical considerations of boundary issues. In addition, because professional nursing is founded on a caring ethic and nurses become intimately involved in life experiences of clients and families, nurses may be at risk for confusion over boundaries and inappropriate relationships. Boundaries, which historically were unclear, are increasingly recognized as an issue for the profession.
NOTEWORTHY EVENTS IN THE EXPANDING SCOPE OF NURSING PRACTICE
1901—New York began to organize for passage of nurse practice legislation.
1903—North Carolina enacted the first nurse registration act.
1905—The development of the hospital economics course at Teachers College, Columbia University, ushered in a new era in preparation of nurse leaders in America. This 1-year certificate course was extended to a 2-year post–basic training program in 1905. The commitment of key nursing leaders to advancing educational preparation for nurse faculty fostered the subsequent development of baccalaureate education in nursing during the first quarter of the 20th century.
1937—The American Nurses Association (ANA) began recommending that nurses use their professional organization to improve every phase of their working lives.
1938—New York enacted the first exclusive practice act. This act required mandatory licensure of everyone who performed nursing functions as a matter of employment.
1946—The ANA convention adopted an economic security program and called for collective action on such items as a 40-hour workweek and higher minimum wages.
1952—All states, including the District of Columbia and U.S. territories, had enacted nurse practice acts.
1955—The ANA approved a model definition for nursing practice.
1957—The California Nurses Association met with representatives of medical and hospital associations to draw up a statement supporting nurses in performing venous punctures.
1966—The Michigan Heart Association favored the use of defibrillators by coronary care nurses.
1968—The Hawaii nursing, medical, and hospital associations approved nurses performing cardiopulmonary resuscitation.
1970—The ANA amended its model definition for nursing practice to include nursing diagnosis.
1971—Idaho revised its nurse practice act by allowing diagnosis and treatment as part of the scope of practice for nurse practitioners (NPs).
1972—New York expanded its nurse practice act and adopted a broad definition of nursing.
1973—The first ANA guidelines for NPs were written for geriatric NPs. These were later modified and adapted to apply to other practitioners.
1975—Missouri revised statutes (1975) authorized a nurse to make an assessment of persons who are ill and to render a nursing diagnosis. The 1975 act not only described a much broader spectrum of nursing functions, but it also qualified this description with the phrase, “including, but not limited to.”
1980—The ANA published a model nurse practice act for state legislators to provide for consistency in individual state nurse practice acts.
1985—New York revised its definition of nursing by providing that a registered professional nurse who has the appropriate training and experience may provide primary healthcare services as defined under the statutory authority of the public health law and as approved by the hospital’s governing authority. The term primary healthcare services means taking histories and performing physical examinations, selecting clinical laboratory tests and diagnostic radiology procedures, and choosing regimens of treatment. These provisions do not alter a physician’s responsibility for patient care.
1989—New York allowed NPs to diagnose, treat, and write prescriptions within their area of specialty with minimum physician supervision.
1990—The ANA again amended its model definition for nursing practice to include the advanced NP as well as the registered nurse (RN).
2014—Doctor of Nursing Programs continue to expand.
A nurse who exceeds his or her scope of practice as defined by state nurse practice acts can be found to have violated licensure provisions or to have performed tasks that are reserved by statute for another healthcare professional. Because of increasingly complex nursing and medical procedures, it is sometimes difficult to distinguish the tasks that are clearly reserved for the physician from those that may be performed by the professional nurse. Nurses, however, generally have not encountered lawsuits for exceeding their scope of practice unless negligent conduct is an issue.
Nursing Diagnosis
Various states recognize that nurses can render a nursing diagnosis. This was the case in Cignetti v. Camel, where the defendant physicians ignored a nurse’s assessment of a patient’s diagnosis, which contributed to a delay in treatment and injury to the patient. The nurse testified that she told the physician that the patient’s signs and symptoms were not those associated with indigestion. The defendant physician objected to this testimony, indicating that such a statement constituted a medical diagnosis by a nurse. The trial court permitted the testimony to be entered into evidence. Section 335.01(8) of the Missouri Revised Statutes (1975) authorizes an RN to make an assessment of persons who are ill and to render a nursing diagnosis. On appeal, the Missouri Court of Appeals affirmed the lower court’s ruling, holding that evidence of negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to show the events that occurred during the patient’s hospital stay.
11.2 NURSE LICENSURE
Each state has its own nurse practice act that defines the practice of nursing. Although most states have similar definitions of nursing, differences generally revolve around the scope of practice permitted. The scope of practice of a licensed practical nurse (LPN) is generally limited to routine patient care under the direction of an RN or a physician.
An RN is one who has passed a state registration examination and has been licensed to practice nursing. The scope of practice of a registered professional nurse includes, for example, patient assessment, patient teaching, health counseling, executing medical regimens, and operating medical equipment as prescribed by a physician, dentist, or other licensed healthcare provider.
The common organizational pattern of nurse licensing authority in each state is to establish a separate board, organized and operated within the guidelines of specific legislation, to license all professional and practical nurses. Each board is in turn responsible for the determination of eligibility for initial licensing and relicensing; for the enforcement of licensing statutes, including suspension, revocation, and restoration of licenses; and for the approval and supervision of training institutions. A licensing board has the authority to suspend a license; however, it must do so within existing rules and regulations.
Requirements for Licensure
Formal professional training is necessary for nurse licensure in all states. The course requirements vary, but all courses must be completed at board-approved schools or institutions. Each state requires that an applicant pass a written examination, which is generally administered twice annually. A licensing board may draft examinations, or a professional examination service or national examining board may prepare them. Some states waive their written examination for applicants who present a certificate from a national nursing examination board. Graduate nurses are generally able to practice nursing under supervision while waiting for the results of their examination. The four basic methods by which boards license out-of-state nurses are (1) reciprocity, (2) endorsement, (3) waiver, and (4) examination.
Reciprocity
This is a formal or informal agreement between states whereby a nurse licensing board in one state recognizes licensees of another state if the board of that state extends reciprocal recognition to licensees from the first state. To have reciprocity, the initial licensing requirements of the two states must be essentially equivalent.
Endorsement
Although some nurse licensing boards use the term endorsement interchangeably with reciprocity, the two words have different meanings. In licensing by endorsement, boards determine whether out-of-state nurses’ qualifications are equivalent to their own state requirements at the time of initial licensure. Many states make it a condition for endorsement that the qualifying examination taken in another state be comparable to their own. As with reciprocity, endorsement becomes much easier when uniform qualification standards are applied by the different states.
Waiver
Some states license nurses by waiver and examination. When applicants do not meet all the requirements for licensure but have equivalent qualifications, the specific prerequisites of education, experience, or examination may be waived.
Examination
Some states will not recognize out-of-state licensed nurses and make it mandatory that all applicants pass a licensing examination. Most states grant temporary licenses for nurses, which may be issued pending a decision by a licensing board on permanent licensure or may be issued to out-of-state nurses who intend to be in a jurisdiction for a limited, specified time.
Graduates of schools in other countries are required to meet the same qualifications as nurses trained in the United States. Many state boards have established special training, citizenship, and experience requirements for students educated abroad; others insist on additional training in the United States. Nurses who complete their studies in a foreign country are required to pass an English proficiency examination and/or a licensing examination administered in English. A few states have reciprocity or endorsement agreements with some foreign countries.
Suspension and Revocation of License
Nurse licensing boards have the authority to suspend or revoke the license of a nurse who is found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice.
Suspension and revocation procedures are most commonly contained in the licensing act; in some jurisdictions, however, the procedure is left to the discretion of the board or is contained in the general administrative procedure acts. For the most part, suspension and revocation proceedings are administrative, rather than judicial, and do not carry criminal sanctions.
Practicing Without a License
Healthcare organizations are required to verify that each nurse’s license is current. The mere fact that an unlicensed practitioner is hired would not generally in and of itself impose additional liability unless a patient suffered harm as a result of the unlicensed nurse’s negligence. However, a person posing as a nurse could face criminal charges.
11.3 NURSING CAREERS
The next several pages describe a variety of nursing careers and case law examples of the risks some have encountered. Specific attention is given to registered nurses, traveling nurses, nurse managers, licensed practical nurses, certified nursing assistants, float nurses, agency nurses, special duty nurses, student nurses, and advanced practice nurses.
Registered Nurses
A registered nurse (RN) is a nurse who has graduated from an accredited nursing program and has passed a national licensing exam, known as the NCLEX (National Council Licensure Examination)-RN. NCLEX examinations are developed and owned by the National Council of State Boards of Nursing, Inc. (NCSBN), which administers these examinations on behalf of its member boards. NCSBN is a not-for-profit organization whose membership comprises the boards of nursing in the 50 states, including the District of Columbia, and four U.S. territories. There are also nine associate members.
Nurses wishing to practice in a particular state should be sure to contact the state’s nurse licensure body for information for specific registration and nurse licensing requirements.
Traveling Nurse
A traveling nurse is one who travels to work in temporary nursing positions in different cities and states. There are a variety of traveling professionals, such as physical therapists and physicians. The traveling professional often has opportunities that include higher wages, professional growth and development opportunities, and the adventure of traveling. Their skills are often enhanced due to their exposure to intriguing assignments in prominent medical centers. Travelers may work as independent contractors or elect to work with one or more recruitment agencies, which act as intermediaries between the nurse and healthcare provider.
Licensed Practical Nurse
A licensed practical nurse (LPN), as well as a licensed vocational nurse (LVN), provides routine nursing care (e.g., vital signs, injections, assisting patients with personal hygiene needs, and wound dressings) under the direction of a registered nurse or physician. To be licensed, they must graduate from a state-approved program and pass a licensing exam approved by the state. Nurses wishing to practice in a particular state should be sure to contact the state’s nurse licensure body for information for specific registration and nurse licensing requirements.
Nurse Manager
The chief nursing officer (CNO) is a qualified RN who has administrative authority, responsibility, and accountability for the function, activities, and training of the nursing staff. CNOs are generally responsible for maintaining standards of practice, maintaining current policy and procedure manuals, making recommendations for staffing levels based on need, coordinating and integrating nursing services with other patient care services, selecting nursing staff, and developing orientation and training programs.
A manager who knowingly fails to supervise an employee’s performance or assigns a task to an individual whom he or she knows, or should know, is not competent to perform the task can be held personally liable if injury occurs. The employer will be liable under the doctrine of respondeat superior as the employer of both the manager and the individual who performed the task in a negligent manner. The manager is not relieved of personal liability even though the employer is liable under respondeat superior.
In determining whether a nurse with supervisory responsibilities has been negligent, the nurse is measured against the standard of care of a competent and prudent nurse in the performance of supervisory duties. Those duties include the setting of policies and procedures for the prevention of accidents in the care of patients.
Failure to Supervise
Nursing managers must properly supervise the care rendered to patients by their subordinates. Failure to do so can lead to disciplinary action by a state regulatory agency. This was the case in Hicks v. New York State Department of Health, in which the court held that evidence was sufficient to support a finding that a practical nurse was guilty of resident neglect for failing to ensure that the resident was properly cared for during her assigned shift. The record demonstrated that the petitioner was responsible for ensuring that the nursing aides’ tasks were properly accomplished by conducting a visual check of each resident while making rounds at the end of her shift. The nurse’s record indicated that a security guard found a resident lying in the dark, half in his bed and half still restrained in an overturned wheelchair. The nurse’s record indicated that the resident was covered in urine and stool. The commissioner of health denied the petitioner’s request to expunge the patient neglect report and assessed a penalty of $200, of which the petitioner was required to pay $50.
Certified Nursing Assistant
A certified nursing assistant (CNA) provides patient care, generally that involves activities of daily living. CNAs work under the supervision of an RN or LPN. The nursing assistant aids with positioning, turning, and lifting, and performs a variety of tests and treatments. The nursing assistant establishes and maintains interpersonal relationships with patients and other hospital personnel while ensuring confidentiality of patient information. Those who wish to become a CNA in a particular state should be sure to contact the state’s nurse licensure body or a local healthcare facility for guidance and information for educational programs and certification requirements. The failure of certified nursing assistants and nursing aides to follow applicable nursing procedures and protocols can result in patient injuries as noted in the following cases.
Failure to Follow Policy
Failure to follow hospital policy can result in a successful lawsuit for the plaintiff, as was the case where Ovitz, a 73-year-old resident of a convalescent center, died after immersion in a tub of hot water that had been prepared by a nursing assistant. Ovitz had paralysis of his left side and could articulate only the words “yes” and “no.” The nursing assistant checked the water with his hand and bathed the resident. Later in the day, a nurse noticed that the resident’s leg was bleeding and his skin was sloughing off. The paramedics were contacted, and they transferred the resident to a hospital after determining that the patient had suffered third-degree burns. Dr. Drueck, the surgeon at the hospital, observed that Ovitz had suffered third-degree burns over 40% of his body, primarily on his back, buttocks, both sides, genitals, and lower legs.
Ovitz developed pneumonia during his hospitalization and died. There was testimony from Drueck that the cause of death was a result of complications following the burns. The center’s bathing policy to prevent accidents was to avoid making the water too hot. The center’s daily temperature logs indicated that it knew that the water temperature in the system at times fluctuated above its bathing policy, sometimes exceeding 110°F, yet the center failed to take adequate measures to protect residents from exposure to excessive water temperatures. The center’s own written policy was violated when the nursing assistant left the resident unattended in his bath. The appellate court held that revocation of the center’s license was warranted in this case.
Patient Fall
In Bowe v. Charleston Area Medical Center, a nurse’s aide brought an action against a medical center for retaliatory discharge and breach of contract. The nurse’s aide assisted a patient to the bathroom and placed him on the commode. She left him unattended for about 10 minutes. When she returned, the patient was found lying on the floor in a pool of blood. The patient apparently hit his head on the sink when he fell. Following an investigation of the incident, the hospital found that the aide had been grossly negligent and thus terminated her employment. The human resources director had authorized the employee’s termination because of a provision in the employee handbook that makes gross negligence a dischargeable offense. The aide claimed that she had been terminated because of her complaints about the lack of patient care on the oncology unit to which she had been assigned. There was no specific evidence that could substantiate that she filed a grievance regarding patient care.
The West Virginia Supreme Court of Appeals held that (1) the evidence established that patient neglect by the plaintiff prompted an investigation that led to her subsequent discharge, and (2) the disclaimer in the employee handbook adequately shielded the employer from any contractual liability based on the employee handbook. The evidence showed that the aide, contrary to the medical center’s policy, had assisted a patient in getting on a commode and then left him unattended, resulting in a fall and his subsequent death. Leaving the patient unattended for 10 minutes on the commode was clearly against hospital policy. The nurse’s aide failed to establish that her discharge was a retaliatory act or that it contravened some public policy.
The hospital’s disclaimer specifically stated that the employee handbook was not intended to create any contractual rights. Employment was subject to termination at any time by either the employee or employer. The disclaimer in the employee handbook read:
Because of court decisions in some states, it has become necessary for us to make it clear that this handbook is not part of a contract, and no employee of the Medical Center has any contractual right to the matters set forth in this handbook. In addition, your employment is subject to termination at any time by either you or by the Medical Center.
Patient Transfer
The nursing assistant in Kern v. Gulf Coast Nursing Home of Moss Point, Inc. was attempting to give a resident a whirlpool bath. The resident had been placed in a special rolling seat and was being lifted by a hydraulic lifting device that was used to place residents in the whirlpool. In the process of lifting the resident, the seat, which had been connected to the lift, disconnected. The resident fell to the floor, hitting her head and breaking her hip. The trial court entered a verdict in the amount of $20,000 for the plaintiff and the plaintiff appealed, stating that the award was inadequate. The Mississippi Supreme Court held that the verdict was not so low as to shock the conscience of the court.
Leaving Patient Unattended
The record in Jones v. Axelrod indicated that a nurse’s aide, while transferring a nursing home patient to her bed from a wheelchair, left the patient sitting on the edge of the bed. The patient subsequently fell to the floor. The aide acknowledged that the patient required restraints. The supervisor testified that the act of leaving the patient unrestrained and unattended on the edge of the bed was improper and inconsistent with safe procedure. Sufficient evidence supported a determination by the commissioner of health that the conduct of the nurse’s aide constituted patient neglect.
Float Nurse
A float nurse is healthcare professional who rotates from unit to unit based on staffing needs. “Floaters” can benefit an understaffed unit, but they also may present a liability if they are assigned to work in an area outside their expertise. If a patient is injured because of a floater’s negligence, the standard of care required of the floater will be that required of a nurse on the assigned patient care unit.
Agency Nurse
Healthcare organizations are at risk for the negligent conduct of agency staff. Because of this risk, it is important to be sure that agency workers have the necessary skills and competencies to carry out the duties and responsibilities assigned by the organization.
Special Duty Nurse
A special duty nurse is a healthcare professional employed by a patient or patient’s family to perform nursing care for the patient. An organization is generally not liable for the negligence of a special duty nurse unless a master–servant relationship can be determined to exist between the organization and the special duty nurse. If a master–servant relationship exists between the organization and the special duty nurse, the doctrine of respondeat superior may be applied to impose liability on the organization for the nurse’s negligent acts.
A special duty nurse may be required to observe certain rules and regulations as a precondition to working in the organization. The observance of organization rules is insufficient, however, to establish a master–servant relationship between the organization and the nurse. Under ordinary circumstances, the patient employs the special duty nurse, and the organization has no authority to hire or fire the nurse. The organization does, however, have the responsibility to protect the patient from incompetent or unqualified special duty nurses.
Student Nurse
Student nurses are entrusted with the responsibility of providing nursing care to patients. They are personally liable for their own negligent acts, and the facility is liable for their acts on the basis of respondeat superior. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts, in several decisions, have taken the position that anyone who performs duties customarily performed by professional nurses is held to the standards of professional nurses. Every patient has the right to expect competent nursing services, even if students provide the care as part of their clinical training. It would be unfair to deprive a patient of compensation for an injury simply because the nurse was a student.
11.4 ADVANCED PRACTICE NURSES
The practice of nursing continues to expand with an ever-increasing number of specialties, along with professional organizations and certifying boards. Discussed here are a variety of legal risks of advanced practice nurses, including nurse practitioners, clinical nurse specialists, certified nurse anesthetists, and certified nurse midwifes, who possess an advanced degree that allows them to treat patients in areas beyond those provided to registered nurses.
Nurse Practitioner
Nurse practitioners (NPs) are RNs who have completed the necessary education to engage in primary healthcare decision making. The NP is trained in the delivery of primary health care and the assessment of psychosocial and physical health problems such as the performance of routine examinations and the ordering of routine diagnostic tests. A physician may not delegate a task to an NP when regulations specify that the physician must perform it personally or when the delegation is prohibited under state law or by an organization’s own policies.
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The Role of Nurses Extends Beyond the Hospital Ward |
A nurse is a doctor’s best friend, according to Marvin M. Lipman, Consumers Union’s chief medical adviser. This advice was given to him by a hospital ward’s head nurse when he was a third-year medical student making contact with patients for the first time, along with the suggestion that he’d do well not to forget it.
Over the years, those words continued to echo in Lipman’s mind … he has seen nurses go that extra step to make a patient comfortable or more at ease.
—Consumers Union of United States Inc., The Washington Post, May 30, 2011
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The Role of Nurses Extends Beyond the Hospital Ward |
Studies have found that [nurse practitioners’] ability to diagnose illnesses, order and interpret tests, and treat patients is equivalent to that of primary-care physicians. They also tend to spend more time with patients during routine office visits than physicians, and they are more likely to discuss preventative health measures. As of 2010, 140,000 NPs were working in the United States.
Nurse practitioners are poised to become even more visible with the passage last year of the Patient Protection and Affordable Care Act, which could add nearly 35 million people to the ranks of the insured.
—Consumers Union of United States Inc., The Washington Post, May 30, 2011
The potential risks of liability for the NP are as real as the risks for any other nurse. The standard of care required most likely will be set by statute. If not, the courts will determine the standard based on the reasonable person doctrine (i.e., what would a reasonably prudent NP do under the similar circumstances?). The standard would be established through the use of expert testimony of other NPs in the field. Because of potential liability problems and pressure from physicians, hospitals have been historically reluctant to use NPs to the full extent of their training. Such reluctance has been diminishing as the competency of NPs has been well demonstrated in practice.
As described in the following case, the negligence of an NP can be imputed to a physician if the physician is the employer of the nurse.
Clinical Nurse Specialist
A clinical nurse specialist (CNS) is a professional RN with an advanced academic degree, experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics, psychiatry). Further, the CNS acts as a resource for the management of patients with complex needs and conditions. The CNS participates in staff development activities related to his or her clinical specialty and makes recommendations to establish standards of care for those patients. The CNS functions as a change agent by influencing attitudes, modifying behavior, and introducing new approaches to nursing practice. The CNS collaborates with other members of the healthcare team in developing and implementing the therapeutic plan of care for patients.
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NEGLIGENCE IMPUTED TO PHYSICIAN |
Citation: Adams v. Krueger, 856 P.2d 864 (Idaho 1993)
Facts
The plaintiff went to her physician’s office for diagnosis and treatment. An NP who was employed by the physician performed her assessment and diagnosed the plaintiff as having genital herpes. The physician prescribed an ointment to help relieve the patient’s symptoms. The plaintiff eventually consulted with another physician who advised her that she had a yeast infection, not genital herpes.
The plaintiff and her husband filed an action against the initial treating physician and his NP for their failure to correctly diagnose and treat her condition. The action against the physician was based on his failure to review the NP’s diagnosis and treatment plan. The trial court found in favor of the plaintiff and the defendants appealed. The court of appeals affirmed, and further appeal was made.
Issue
Did the trial court err by imputing the nurse’s negligence to the physician?
Holding
The Idaho Supreme Court held that the negligence of the nurse was properly imputed to the physician.
Reason
The Idaho Supreme Court held that the physician and NP stood in a master–servant relationship and that the nurse acted within the scope of her employment. Consequently, her negligence was properly attributed to her employer/physician.
Discussion
1. Do you agree with the court’s decision? Explain.
2. What might the employer/physician do to limit his liability in the future for the negligent acts of his professional employees?
3. If the NP has malpractice insurance, can the physician recover any of his losses from her insurance carrier?
Certified Nurse Anesthetist
Administration of anesthesia by a nurse anesthetist requires special training and certification. Nurse-administered anesthesia was the first expanded role for nurses requiring certification. Oversight and availability of an anesthesiologist are required by most organizations. The major risks for nurse anesthetists include improper placement of an airway, failure to recognize significant changes in a patient’s condition, and the improper use of anesthetics (e.g., wrong anesthetic, wrong dose, wrong route). Medical supervision of nurse anesthetists is generally required in hospital settings. Failure to properly supervise a nurse anesthetist can lead to a lawsuit if a patient is injured because of a negligent act.
Certified Nurse Midwife
A certified nurse midwife provides comprehensive prenatal care, including delivery, for patients who are at low risk for complications. For the most part, a nurse midwife manages normal prenatal, intrapartum, and postpartum care. Provided that there are no complications, normal newborns are also cared for by a nurse midwife. Nurse midwives often provide primary care for women’s issues from puberty to post-menopause.
Practicing Without a License
The plaintiff in Morris v. Dep’t of Prof’l Regulation held herself out as a lay midwife in Illinois from 1983 through August 2001. The plaintiff performed prenatal exams on her patients, helped them deliver their babies at home, and provided postpartum and newborn care. The plaintiff was never licensed to perform midwifery care and, therefore, failed to comply with the state nursing act’s licensing requirements. The purpose of the nursing act is to promote public health, safety, and welfare by ensuring that those individuals who engage in the conduct described in the act are properly trained and licensed. The Department of Professional Regulation ordered the plaintiff to cease and desist the practice of midwifery. The plaintiff’s nursing license was suspended, followed by probation and a fine of $2,500. In addition the nurse was required to complete a 12-hour ethics course.
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NURSE ANESTHETIST: MEDICAL SUPERVISION REQUIRED |
Citation: Denton Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941 (Tex. Ct. App. 1997)
Facts
Mrs. LaCroix was admitted to the hospital’s women’s pavilion for the birth of her first child, Lawryn. She was admitted to the hospital under the care of Dr. Dulemba, her obstetrician. Prior to undergoing a cesarean section, LaCroix complained several times of breathing difficulty. When Dr. McGehee, the pediatrician, arrived, he noticed that LaCroix appeared to be in respiratory distress and heard her say, “I can’t breathe.” McGehee asked Nurse Blankenship, a certified registered nurse anesthetist (CRNA), if LaCroix was okay. She responded that LaCroix was just nervous. Mr. LaCroix claimed his wife whispered to him that she could not breathe. Mr. LaCroix then shouted, “She can’t breathe. Somebody please help my wife.” Blankenship asked that Mr. LaCroix be removed from the operating room because his wife was having what appeared to her to be a seizure.
Blankenship could not establish an airway. She told one of the nurses: “Get one of the anesthesiologists here now!” Dr. Green, who was in his car, was paged. Upon receiving the page, he immediately drove to the women’s pavilion, where Dulemba had already started the cesarean section. When Lawryn was delivered, she was not breathing, and McGehee had to resuscitate her. Meanwhile, Blankenship worked to establish an airway for LaCroix. The intubation was, however, an esophageal intubation. Dulemba stated that he thought that the intubation was esophageal. LaCroix’s blood pressure and pulse dropped, and she went into cardiac arrest. A physician and nurse from the hospital’s emergency department responded to a code for assistance. McGehee testified that the emergency department physician said that he did not know how to resuscitate pregnant women and left without providing any medical care. Dulemba and a nurse began cardiopulmonary resuscitation on LaCroix. McGehee, having finished treating Lawryn, took control of the code. LaCroix suffered irreversible brain damage.
Blankenship and Dr. Hafiz, the Denton Anesthesiology Associates (DAA), PA, anesthesiologist on call for the women’s pavilion on the day of LaCroix’s incident, settled with the LaCroixes by paying $500,000 and $750,000, respectively. The trial court entered a judgment against the hospital, awarding the LaCroixes approximately $8.8 million in damages.
Issue
Was the evidence sufficient to hold the hospital liable for medical negligence under a theory of corporate liability?
Holding
The evidence was sufficient to hold the hospital liable for medical negligence under a theory of corporate liability.
Reason
The evidence established that the hospital owed a duty to the plaintiff to have an anesthesiologist provide or supervise all anesthesia care, including having an anesthesiologist personally present or immediately available in the operating suite. The hospital’s breach of this duty proximately caused the patient’s brain damage.
The hospital’s anesthesia department policies and procedures required that an anesthesiologist perform the preanesthesia evaluation, that an anesthesiologist discuss with the patient the anesthesia plan, and that an anesthesiologist supervise a CRNA by being “physically present or immediately available in the operating suite.”
According to Dr. Via, chairman of the hospital’s anesthesiology department in 1991, he complained to Mr. Ciulla, who was in charge of the DAA contract, about the lack of proper CRNA supervision in the women’s pavilion. According to Ciulla, he renewed the contract in conjunction with the hospital’s medical staff. According to Via, the hospital’s medical executive committee recommended to Ciulla that he not renew DAA’s contract and that he seek another anesthesia group for the women’s pavilion. The hospital’s board of directors renewed the contract anyway.
Discussion
1. Describe why this outcome occurred and how similar events can be prevented in the future.
2. Describe the roles of the nurse anesthetist and anesthesiologist in this case.
On appeal, the appellate court affirmed the orders requiring the nurse to cease and desist the practice of midwifery and suspending her nursing license and fining her. The defendant however failed to provide an argument or citation to any authority explaining the relevance of the 12-hour ethics course as to the purposes of the Nursing Act. And thus vacated the defendant’s requirement that plaintiff complete an ethics course.
Standard of Care Required
The plaintiff-appellant in Ali v. Community Health Care Plan, Inc. claimed that the trial court improperly charged the jury on the standard of care to be applied in the case. Specifically, the plaintiff contended that the effect of the trial court’s charge was to establish a lower standard of care by which the jury would determine whether negligence existed in the case. The plaintiff asserted that the standard of care to be applied should have been that of a reasonably prudent professional engaged in the practice of obstetrics and gynecology, and not that of a reasonably prudent nurse midwife engaged in the practice of obstetrics and gynecology. The defendant responded that the trial court’s charge did not establish a lower standard of care and that the jury instruction was correct because it was in accordance with the actual evidence presented in the case. The Supreme Court of Connecticut, agreeing with the defendant, concluded that the trial court charged the jury with the correct standard of care. The question properly presented to the jury was whether the defendant’s conduct met the standard of care applicable to her as a nurse midwife.
11.5 LEGAL RISKS OF NURSES
The number of adverse actions reported for nurses to the National Practitioner Data Bank (NPDB) was 12,298 in 2003, which nearly doubled to 22,742 in 2012. The number of adverse actions by nurses reported to the NPDB between 2009 and 2011 increased 25 percent, from 16,951 to 22,597, reflecting the implementation of Section 1921 of the Social Security Act, which expands the information gathered by the NPDB to include adverse licensure actions taken against all licensed healthcare practitioners. The information gathered includes any negative actions by state licensing agencies, peer review organizations, and private accreditation organizations.
This section provides an overview of some of the more common legal risks of nursing. As with many negligence cases, the reader should identify the ethical issues of the case that, if addressed, may help reduce the frequency of negligence suits.
Dilemma of Two Standards of Care
Given two standards of care, should a hospital adopt the least restrictive standard? This generally would not be a good idea. For example, in Edwards v. Brandywine Hosp., Mr. Edwards went to the emergency department complaining of pain in his hip. He was admitted, and a heparin lock (a device that allows multiple IV fluids to be introduced at a common point) was placed in his left hand. The heparin lock was left in place for 3 or 4 days. This was in violation of regulations promulgated by the Pennsylvania Department of Health requiring hospitals to develop written standards regarding such antiseptic practices as changing IV catheter sites. The regulations state that these standards should comply with standards described in the American Hospital Association’s publication, Infection Control in the Hospital (1979), which recommends that IV catheter sites be changed every 48 hours in order to reduce the risk of infection. The hospital was subject to corporate liability for adopting a 72-hour rule.
Following discharge, Edwards noticed a red spot at the site of the heparin lock. He returned that day to the hospital for physical therapy. His therapist referred him to the emergency department for evaluation. The emergency department physician examined Edward’s hand and took a specimen of pus from the site of the heparin lock and sent it to the laboratory for evaluation. Edwards was provided with oral antibiotics and sent home. The laboratory results showed that Edwards had a Staphylococcus (staph) infection. The emergency department physician entered this information on the patient’s record.
Edwards returned to the hospital a few days later and was admitted with leg pains. A second laboratory test was ordered, which again showed the presence of a staph infection. The patient was treated over a period with IV antibiotics and eventually discharged with a good bill of health, only to return a week later with pain and a fever. Following treatment and various hospitalizations over the next several years, Edwards’s physicians decided to remove his artificial hip and treat him with massive doses of antibiotics. In order to be ambulatory, Edwards now needs the aid of assistive devices (e.g., crutches).
A suit was brought against the physicians and hospital. The trial court took notice of the health department’s regulation regarding catheter site changing and ruled that the hospital’s admitted failure to move the heparin lock for at least 3 days constituted negligence per se. The physicians settled with the plaintiff, leaving the hospital as the only defendant. At the close of the plaintiff’s case, the trial court granted the defendant’s motion for a directed verdict. The trial court held that although the negligence per se ruling established the hospital’s breach of a duty to care, the plaintiff could not prove causation.
The superior court reversed the trial court’s directed verdict for the defendant, finding that the evidence presented at trial by the plaintiff was sufficient to allow the claim of causation to go to the jury. The kind of causation evidence the trial court expects cannot be produced. No witness could possibly testify that she saw a S. aureus bacterium crawl into Mr. Edwards’s hand through the heparin lock site on his third day in the hospital and then multiply into the infection that spread to his artificial hip—yet the trial court’s ruling implied that such showing was necessary to get to the jury.
Once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in the plaintiff’s position and that, in fact, harm was sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.
Is there an issue of corporate negligence? Yes. The plaintiff claimed that the hospital was subject to corporate liability for adopting a 72-hour rule for changing placement of IV catheters. The plaintiff introduced evidence showing that a 48-hour rule was appropriate, but that the hospital adopted a rule allowing IVs to remain in place at the same site for 72 hours. If Edwards could prove that the 72-hour rule was inadequate, that the hospital should have known that it was inadequate, and that following this rule caused him harm, then he has made a proper claim for corporate negligence.
Should the nurse have been faulted for following hospital policy? No. A nurse following hospital rules cannot be faulted. If hospital policy required changing the site of the catheter every 48 hours and the nurse failed to do so, then the nurse could be held negligent and the hospital liable under the theory of respondeat superior.
When faced with the dilemma of two standards for rendering patient care, an organization may find it more attractive to adopt the one that is least restrictive or labor intensive. This could prove to be a costly decision for both the patient and the organization by increasing (1) the risk of patient injury and (2) the organization’s exposure to corporate liability for any injury suffered from following the less restrictive standard.
Patient Misidentification
National patient safety goals provide that proper identification of a patient be conducted prior to performing any procedure. Two patient identifiers are recommended.
Such was not the case in Meena v. Wilburn, where the patient injured her leg and developed an ulcer because of poor blood circulation. As a result of the plaintiff’s diabetic condition, the ulcer did not heal. Dr. Maples, a vascular surgeon, performed surgery. Two days following surgery, Dr. Meena was at the hospital covering for one of his partners, Dr. Petro, who had asked him to remove the staples from one of his patients, 65-year-old Slaughter. Slaughter shared a semiprivate room with the plaintiff. Meena testified that he went and picked up Slaughter’s chart at the nurse’s desk and asked one of the nurses which bed Slaughter was in. Meena claimed that he was led to believe that she was in the bed next to the window. He picked up the chart and asked Greer, a nurse, to accompany him to the plaintiff’s room. Shortly thereafter, Meena received an emergency call at the nursing station. He said that he asked Greer to take out the staples because he had to respond to an emergency call at another hospital. Greer conceded during her testimony that, before removing staples from a patient, a nurse should read the chart, be familiar with the chart, look at the patient’s wrist band, and compare the arm band to the chart—all of which she failed to do. Greer rationalized her failure: “When the doctor I work for is standing at the foot of a patient’s bed, I would have no doubt—no reason to doubt what he tells me to do.”
Greer began to remove the plaintiff’s staples. She soon realized that there was a problem. The plaintiff’s skin split open, revealing the layer of fat under the skin. Greer stopped the procedure and left the room to check the medical records maintained at the nursing station. She realized that she had removed staples from the wrong patient. At that point, she encountered Maples and explained to him what had happened. Maples immediately restapled the skin.
Following discharge, the plaintiff’s health began to falter, and she developed a fever of 101°F. The tissue where the staples had been removed became infected. The plaintiff was ultimately readmitted to the hospital; she remained there for approximately 22 days. Her condition gradually improved, and presumably, she had recovered completely with the exception of some scarring and skin indention.
A complaint was filed against Meena and Greer. After 4 days of trial, the jury returned a verdict against Meena and assessed damages in the amount of $125,000. The jury declined to hold the nurse liable for the plaintiff’s injuries. Meena appealed, claiming that the jury’s exoneration of the nurse, who removed the surgical staples, was grounds for a new trial on the issue of the physician’s liability. Further, Meena argued the jury was bound to return a verdict against both defendants, inasmuch as the defendants were sued as joint tort-feasors. The Mississippi Supreme Court held that the jury’s exoneration of Greer was not grounds for a new trial on the issue of the physician’s liability.
This case was settled in 1992. In light of The Joint Commission’s present-day national patient safety goal requiring two forms of patient identification prior to rendering care or treatment, explain how the patient’s injury might have been avoided.
Misidentifying Infants
The patient identification process failed in De Leon Lopez v. Corporacion Insular de Seguros. In this case, Dulce had been discharged from the hospital a day before her twins. When she returned to pick up her twins the following day, she noticed that they did not appear to be identical as they did the prior day. “She asked the nurse why the babies did not ‘look alike.’ The nurse explained that infants change from one day to the next, and assured the anxious mother that the babies were indeed her twin daughters. The nurse also remarked disparagingly that Dulce must be a ‘primeriza,’ that is, a first-time mother. Their concerns assuaged, the parents took the babies home.”
Approximately a year and a half later Gloria, Dulce’s sister, had taken one of her other nieces to a physician’s office with her. Her niece commented to her saying she saw one of her cousins across the room. Gloria approached Mrs. Hernandez, the mother of the young child, and they discussed when and where Mrs. Hernandez had the child who was with her. It turned out that Mrs. Hernandez’s twins were delivered at the same hospital and time as Dulce. Following some blood tests, Dulce and Mrs. Hernandez learned that each had the other’s child. The two babies had been inadvertently or negligently switched after birth.
Following a lawsuit, damages were awarded by the United States District Court for Puerto Rico for the inadvertent switching of two babies. On appeal, the United States Court of Appeals, First Circuit, held: “The record shows, beyond any legitimate question, that the Hospital was negligent and that its negligence set into motion a particularly unfortunate chain of events; thus, the court below did not err in directing a verdict on liability.”
Patient Monitoring and Observation
Nurses have the responsibility to observe the condition of patients under their care and report any pertinent findings to the attending physician. Failure to note changes in a patient’s condition can lead to liability on the part of the nurse and the organization. The recovery room nurse in Eyoma v. Falco, who had been assigned to monitor a postsurgical patient, left the patient and failed to recognize that the patient stopped breathing. Nurse Falco had been assigned to monitor the patient in the recovery room. She delegated that duty to another nurse and failed to verify that another nurse accepted that responsibility.
Nurse Falco admitted she never got a verbal response from the other nurse, and when she returned there was no one near the decedent. She acknowledged that Dr. Brotherton told her to watch the decedent’s breathing, but claimed she was not told that the decedent had been given narcotics. She maintained that upon her return she checked the decedent and observed his respirations to be eight per minute.
Thereafter, Brotherton returned and inquired about the decedent’s condition. Falco informed the doctor that the patient was fine. However, upon his personal observation, Brotherton realized that the decedent had stopped breathing….
Decedent, because of oxygen deprivation, entered a comatose state and remained unconscious for over a year until his death.
The jury held the nurse to be 100% liable for the patient’s injuries. The court held that there was sufficient evidence to support the verdict.
Failure to Monitor Vital Signs
In McCann v. ABC Insurance Co., an attempt to deliver a baby by forceps was unsuccessful. The obstetrician, Dr. Merrill, testified that he listened to the baby’s heart tone immediately after the failed forceps delivery and that the baby’s heart rate was normal. The baby was then delivered by cesarean section. At birth, the baby was not breathing and had no detectable heartbeat. The baby was resuscitated and transferred to another hospital where he was in a clinically brain-dead state within 24 hours. Evidence at trial established that during delivery, the baby suffered a severe hypoxic event that caused the death. The plaintiffs instituted a lawsuit against the obstetrician; the hospital and the trial court granted a motion for a directed verdict at the end of the trial and dismissed Merrill, and an appeal was taken.
The plaintiffs’ cause of action was dependent on whether the plaintiffs could show that Merrill or the hospital was negligent in failing to timely diagnose the existence of the hypoxic event. The sole claim against Merrill was the allegation that he failed to properly monitor the baby’s heartbeat or make sure that the nurse properly monitored the baby’s heartbeat after the fetal monitor had been removed. Evidence presented indicated that the standard of care would require that fetal heartbeats be monitored every 10 minutes following removal of the fetal monitor. The evidence presented indicated that this did not occur. Both the defendants’ and plaintiffs’ medical experts agreed that Merrill did not breach the standard of care required in treating McCann. The plaintiffs’ expert testified by deposition that the duty to monitor was a nursing responsibility.
Testimony was needed to show that Merrill breached the standard of care required in treating McCann. Because the plaintiffs failed to provide such testimony, the trial court was found to have correctly granted the directed verdict.
Plaintiffs’ cause of action against … Hospital was predicated primarily upon its failure to have policies and procedures regarding the continuous monitoring of fetal heart tones and its failure to adequately and continuously monitor the unborn infant. The basic thrust of the case was that none of the parties auscultated the baby every 10 minutes after the fetal monitoring device was removed, as required by the standards of the American College of Obstetrics and Gynecology (ACOG). Thus the issue in this case is not whether the baby would have died from other causes even if the Caesarean section had been performed faster, but rather the issue is whether the baby had lost a chance of survival…. [Because] the nurses’ negligent inaction has terminated any chance of survival, conjecture as to other possible causes of death is inadmissible.
In Brandon HMA, Inc. v. Bradshaw, the patient, Bradshaw, had been admitted to Rankin Medical Center (RMC) under the care of Dr. Bobo for treatment of bacterial pneumonia. A general surgeon inserted a chest tube in Bradshaw’s left side to drain some fluid that accumulated. Because of the pain and discomfort associated with a chest tube, Extra Strength Tylenol and Lorcet Plus were prescribed for pain. Bobo also prescribed Ativan to relieve anxiety. During the afternoon and evening following insertion of the chest tube, two nurses periodically checked Bradshaw, took her vital signs, and noted that she exhibited “no distress.” Around 11:00 PM, Lewis, an LPN, was assigned by Nail, the floor’s charge nurse, to provide care to Bradshaw. Before checking on Bradshaw, Lewis reviewed the notes and a tape left by the previous nurse that detailed Bradshaw’s condition. Around midnight, Lewis made his first visit to Bradshaw’s room, took her vital signs, and noted she was experiencing some pain on her left side. Sometime before 1:00 AM, a respiratory therapist checked on Bradshaw and did not notice any problems, but did note that Bradshaw was restless. Shortly after, at 1:00 AM, Lewis made his second visit to Bradshaw’s room. She continued to complain of pain in her chest. Lewis, however, did not take her vital signs. He gave her an Extra Strength Tylenol and made a note indicating that the patient was complaining of pain on the left side and appeared to be in distress. At 2:00 AM during Lewis’s next visit, Bradshaw again complained that she could not sleep and that the pain had increased. Despite her complaints, Lewis again failed to take her vital signs. Instead, he consulted Nail and administered an injection of Ativan to relieve Bradshaw’s anxiety and restlessness. Forty minutes later, Bradshaw again complained of increased pain. Lewis noticed that she was sitting up in bed and her respiration had become short and rapid. Feeling that the earlier Lorcet Plus was wearing off, Lewis administered another dose. Lewis again failed to check Bradshaw’s vital signs.
Nail, while in Bradshaw’s room at 3:00 AM, did not note any problems. When Lewis returned to Bradshaw’s room at 3:30 AM, her condition had significantly worsened. She was nauseated, disoriented, covered in sweat, and did not follow verbal commands. Lewis checked her vital signs and found that her temperature had fallen to 95.8°F. Realizing the seriousness of Bradshaw’s condition, Lewis left the room to find Nail. At this point, testimony among RMC’s employees varies. Lewis and Washington, a nurses’ aide, testified that Lewis found Nail and Washington conversing in the hallway. According to the two testimonies, Nail and Lewis discussed Bradshaw’s condition and returned to the room at 3:40 AM.
When Lewis and Nail returned to the room, they found that Bradshaw was cyanotic, had stopped breathing, and had no pulse. Nail called a “code” and started cardiopulmonary resuscitation (CPR). The code team arrived and revived Bradshaw by administering epinephrine. Bradshaw was transferred to the intensive care unit where she remained comatose for 2 weeks. She was eventually transferred to a rehabilitation center for treatment. While in treatment, magnetic resonance imaging scans of Bradshaw’s brain were ordered and showed evidence of brain damage as a result of lack of oxygen. Bradshaw’s present condition as a result of the cardiopulmonary arrest and hypoxic brain damage is permanent and severe.
Bradshaw filed suit against Brandon HMA, Inc., for negligent nursing care. Bradshaw alleged that nursing personnel failed to properly monitor her and report vital information to her physician and allowed her condition to deteriorate to a critical stage before providing urgently needed care and implementing life support. The jury found in favor of Bradshaw and awarded $9 million in damages. The judge entered a final judgment on the jury verdict, and Brandon filed an appeal.
On appeal, the Supreme Court of Mississippi upheld the judgment of the circuit court. The court found that $9 million did not seem excessive. Bradshaw will live out her years with both emotional and physical pain, and her present existence will not remotely resemble her former life.
Although a nurse’s failure to closely monitor a patient’s vital signs can lead to a patient’s injury or death, not every patient injury can be attributed this failure, as noted in the following case.
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FAILURE TO REPEAT VITAL SIGNS |
Citation: Porter v. Lima Mem’l Hosp., 995 F.2d 629 (6th Cir. 1993)
Facts
During an automobile accident, Liesl, an infant, was thrown to the floor of her mother’s car. Rescue squad personnel examined the infant and found nothing seriously wrong. Liesl was transported with her mother, Mrs. Porter, to Hospital A’s emergency department. Ogelsbee, an RN, took Liesl’s vital signs and recorded them on the medical chart. She reported the vital signs to Dr. Singh, the emergency room physician on duty. The only observable sign of injury was a small bruise on the right side of Liesl’s head. Ogelsbee reported this to Singh, who found all of Liesl’s extremities functioning normally and ordered several laboratory tests and X-rays. He did not, however, order any spinal X-rays and failed to diagnose spinal instability. Ogelsbee did not repeat the vital signs during or after Singh’s examination, claiming that she received no physician’s instruction in this regard. After reviewing the X-rays and laboratory tests, Singh discharged Liesl and provided her mother with written instructions concerning her head injuries. While awaiting a ride home, Liesl’s mother reported a short period of irregular breathing by Liesl to one of the nurses. The nurse examined Liesl and determined that nothing was wrong. Porter testified that the nurse told her that “babies just breathe funny.” When she reached home, Porter noted that Liesl’s condition was worsening.
Mrs. Porter decided to take Liesl to Hospital B, where physicians determined that Liesl’s legs were not moving. They ordered X-rays and laboratory tests, and eventually, another hospital staff physician diagnosed a subluxation at her first and second lumbar vertebrae, which resulted in Liesl’s paralysis from the waist down. Experts who testified in trial agreed that Liesl suffered paralysis sometime after Singh’s examination and before her arrival at Hospital B.
Singh was the primary person who could have prevented the spinal injury by diagnosing Liesl’s unstable spine before it became critically injured. Singh settled for $2.5 million. The district court denied the hospital’s motion for judgment, notwithstanding the verdict in favor of the mother, but ordered a new trial, at which the jury found the hospital not liable for the infant’s injuries. Both the hospital and the mother appealed.
Issue
Did the conduct of Hospital A’s nurses proximately cause the infant’s paralysis?
Holding
The U.S. Court of Appeals for the Sixth Circuit held that the nurses’ failure to repeat vital signs was legally insufficient to establish a connection between the failure to repeat vital signs and the eventual paralysis.
Reason
The experts on both sides generally agreed that the nurses had no independent duty, apart from a physician’s instructions, to immobilize the infant. The plaintiff’s experts made it clear that the physician is ultimately responsible for determining the patient’s medical diagnosis and then to order the necessary and appropriate medical treatment. Singh did not diagnose any spinal cord injury and discharged the baby after examining and X-raying the infant. It was Singh who was responsible for treating Liesl’s spinal cord injury, or at least he was responsible for ordering Liesl to be immobilized and hospitalized for further care and workup. The vital signs had no causal relationship to the paralysis.
Discussion
1. Discuss the importance of patient assessment and documentation.
2. Discuss the importance of collaboration of the transporting ambulance crew with the receiving hospital’s nurses and physicians.
Delay in Monitoring Fetus
The plaintiffs’ experts in Northern Trust Co. v. University of Chicago Hospitals and Clinics supported their contention that an obstetrical nurse’s delay in placing a fetal monitor and an additional delay caused by the unavailability of a second operating room for a cesarean section caused an infant’s mental retardation. Although there was contrary expert opinion, there was no error in the trial court’s denial of the hospital’s motion for judgment notwithstanding the verdict.
Monitor Alarm Disconnected
In Odom v. State Department of Health and Hospitals, the appeals court held that the decedent’s cause of death was directly related to the absence of being placed under the watch of a heart monitor. Jojo was born 12 weeks prematurely at the HPL Medical Center. Jojo remained in a premature infant’s nursery and was eventually placed into two different foster homes prior to his admission to Pinecrest foster home. While Jojo was a Pinecrest resident, Mr. and Mrs. Odom adopted Jojo. He was unable to feed himself and was nourished via a gastrostomy tube. Because he suffered from obstructive apnea, he became dependent on a tracheostomy (trach) tube.
At Pinecrest, Jojo was assigned to Home 501. While making patient rounds, Ms. Means found Jojo with his trach tube out of the stoma. She called for help, and Ms. Wiley, among others, responded. Wiley immediately took the CPR efforts under her control. She noticed that Jojo was breathless and immediately reinserted the trach tube. She then noticed that Jojo was still hooked to a monitor.
No one had heard the heart monitor’s alarm sound. Means asserted that the monitor was on, because she saw that the monitor’s red lights were blinking, indicating the heart rate and breathing rate. She stated that she took the monitor’s leads off of Jojo to put the monitor out of the way, but the alarm did not sound. CPR efforts continued while Jojo was placed on a stretcher and sent by ambulance to HPL. Jojo was pronounced dead at HPL’s emergency department at 7:02 PM.
The Odoms filed a petition against Pinecrest, alleging that Jojo’s death was caused by the negligence and fault of Pinecrest, its servants, and employees. Judgment was for the plaintiffs. The trial court’s reasons for judgment were enlightening because it stated that the monitor should have been on but was, however, disconnected by the staff and that this was the cause, in fact, of Jojo’s injury. The appeals court found that the record supported the trial court’s findings. There was overwhelming evidence upon which the trial court relied to find that the monitor was turned off, in breach of the various physicians’ orders with which the nurses should have complied. The monitor was supposed to be on Jojo to warn the nurses of any respiratory distress episodes that he might experience. A forensic pathologist’s report showed the cause of Jojo’s death to be hypoxia, secondary to respiratory insufficiency, secondary to apnea episodes. Thus, Jojo’s cause of death was directly related to the absence of being placed under the watch of a heart monitor.
Defective Monitoring Equipment
Failure to report defective equipment can cause a nurse to be held liable for negligence if the failure to report is the proximate cause of a patient’s injuries. The defect must be known and not hidden from sight.
Delay in Reporting Patient’s Condition
An organization’s policies and procedures should prescribe the guidelines for staff members to follow when confronted with a physician or other healthcare professional whose action or inaction jeopardizes the well-being of a patient. Guidelines in place, but not followed, are of no value, as the following cases illustrate. Such was the case in Goff v. Doctors General Hospital, in which the court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.
The plaintiff in Utter v. United Hospital Center, Inc. suffered an amputation that the jury determined resulted from the failure of the nursing staff to properly report the patient’s deteriorating condition. The nursing staff, according to written procedures in the nursing manual, was responsible for reporting such changes. It was determined that deviation from hospital policy constituted negligence.
In Cuervo v. Mercy Hospital, Inc., Cuervo was admitted to Mercy Hospital by Dr. Iglesias to undergo routine diagnostic cardiac tests. After performing the catheterization on Cuervo, Iglesias decided to perform a balloon angioplasty procedure; Iglesias was not authorized to perform this procedure. Unfortunately, in carrying out this procedure, Iglesias inserted the catheter into the wrong artery in Cuervo’s right leg. This compromised the blood flow to the leg, causing loss of pulse and sensation. This error was compounded when Mercy Hospital’s nurses on Cuervo’s floor were unable to reach Iglesias for 6 hours and never attempted to reach Dr. Milian, the backup physician, to alert them of Cuervo’s deteriorating condition.
The following day, Dr. Pena attempted an arteriogram to treat the right leg. Regrettably, Pena accessed the wrong artery in the left leg, compromising the blood flow to that leg as well. Shortly thereafter, Cuervo began to lose pulse and sensation in his left leg. The hospital’s nurses never reported this condition to the physicians. Sometime later, Milian performed surgery to attempt to restore circulation to the right leg; the surgery was unsuccessful. Two hours later, surgery was performed on the left leg; the surgery failed to restore circulation to that leg. Thereafter, both legs required amputation.
Cuervo sued the physicians and hospital, asserting that the hospital was negligent based on the nurses’ failure to promptly notify a physician of his condition and asserting corporate negligence against the hospital based on the unauthorized procedure. Cuervo’s experts testified at deposition that if the nursing staff had contacted a physician when the symptoms were first detected, the amputations would not have been necessary. Relying on the same experts’ testimony, the hospital filed a motion for summary judgment, asserting that any acts or omissions of its nurses were not the proximate cause of Cuervo’s injuries. The hospital’s motion for summary judgment did not raise any issue as to whether the hospital breached its duty to Cuervo by allowing a medical doctor to perform unauthorized procedures or by failing to provide adequate nursing care. The hospital’s motion solely disputed causation. The court granted the motion and entered final summary judgment in the hospital’s favor.
On appeal, the court determined that when both parties to a lawsuit rely on testimony from the same experts and then draw diametrically opposed conclusions, the jury should be given opportunity to weigh the evidence and determine whether the hospital’s conduct was the proximate cause of the patient’s injuries. The court case was remanded to trial.
In Hiatt v. Grace, on appeal by the hospital and the nurse, the Kansas Supreme Court held that there was sufficient evidence to authorize the jury to find that the nurse was negligent in failing to timely notify the physician that delivery of the plaintiff’s child was imminent. This delay resulted in an unattended childbirth with consequent injuries. The trial court had awarded the plaintiff $15,000.
In Citizens Hospital Association v. Schoulin, an accident victim sued the hospital and the attending physician for their negligence in failing to discover and properly treat his injuries. The court held that there was sufficient evidence to sustain a jury verdict that the hospital’s nurse was negligent in failing to inform the physician of all the patient’s symptoms, to conduct a proper examination of the plaintiff, and to follow the directions of the physician. Thus, because the nurse was the employee of the hospital, the hospital was liable under the doctrine of respondeat superior.
In another case, arising from the death of a hospital patient following hernia surgery, evidence supported findings that both the patient’s treating physician and the hospital deviated from their applicable standards of care and that the deviations were the cause of the patient’s death. The applicable standard of care required the nurse to notify the physician if the patient complained of restlessness and had a heart rate fluctuating between 120 and 136. If the cardiologist had been called, it was probable that the patient could have been successfully treated. Hospital personnel had deviated from the standard of care when they observed bleeding from the patient and did not inform the physician, and the physician deviated from the standard of care when he failed to call a cardiac consult for the patient. In addition, a nursing expert testified that the nurse had deviated from the standard of care when he failed to call the physician when the patient pulled off his oxygen mask and complained of difficulty breathing.
The failure of nurses to follow adequate nursing procedures in treating decubitus ulcers was found to be a factor leading to the death of a nursing facility resident in Montgomery Health Care v. Ballard. Two nurses testified that they did not know that decubitus ulcers could be life threatening. One nurse testified that she did not know that the patient’s physician should be called if there were symptoms of infection. Such allegations would indicate that there was a lack of training and supervision of the nurses treating the patient. The seriousness of such failure was driven home when the court allowed $2 million in punitive damages.
Delay in Treatment
Howerton was the only patient in the labor and delivery room on March 27 at Mary Immaculate Hospital. Dr. O’Connell, Howerton’s obstetrician, directed hospital nurses to administer Pitocin (a drug to induce labor) to Howerton. When Dr. O’Connell examined her at 2:25 PM, she thought that Howerton was in the early stages of labor and directed that Pitocin be continued. At 3:00 PM, Howerton testified that she experienced intense abdominal pains. Mr. Howerton went to the nurses’ station and described to the nurses that his wife was in severe pain. The nurses said that it would take a few minutes because they were in the middle of a shift change. Later, Howerton’s mother went to the nurses’ station and stated that her daughter needed help now. She received the same response from the nurses. Two of the nurses eventually came to the room at 3:15 PM after Howerton’s father demanded their help. There was a further delay in contacting the doctor because one nurse suggested they not call the doctor yet. Then, at 3:23 PM, another nurse, who disagreed, paged Dr. O’Connell. When Dr. O’Connell answered the emergency page at 3:25 PM, she was advised that the undelivered baby’s heart rate was in the 60s to 70s (a normal heart rate being from 120 to 160) and that the mother was having abdominal pain. Dr. O’Connell, while driving to the hospital, called the labor room at 3:30 PM and learned that the baby’s heart rate remained in the 60s to 70s. Dr. O’Connell was able to deliver Howerton’s daughter Kacie by cesarean section at 3:55 PM. After Kacie’s delivery, it was discovered that the mother’s uterus had ruptured in three places during labor, resulting in extensive neurologic damage to Kacie.
A lawsuit was filed and at trial, Holder, a nurse expert witness, opined that the labor and delivery room nurses should have immediately gone to Howerton when they were notified of the worsening pain, evaluated her condition, and notified her physician. Dr. Juskevitch, who testified as an expert witness, stated that the intensity of labor pains prior to delivery of the baby could indicate a ruptured uterus or a separation of the placenta. Dr. Juskevitch explained that a tearing of the uterus presented challenges to the unborn baby, which began when the first tear occurred at 3:00 PM, and were evident at 3:17 PM when the nurses went into the room and realized that the baby’s heart rate was erratic. Dr. Juskevitch opined that if Dr. O’Connell had been informed at 3:09 PM, the baby would have been delivered by 3:39 PM. Because O’Connell was not advised by the nurses of the change in the mother’s condition until 3:25 PM, the baby was not delivered until 3:55 PM, 30 minutes after O’Connell responded to the delayed page. This delayed delivery took place 46 minutes after the doctor should have been called at 3:09 PM. According to Dr. White, a child neurologist called as an expert witness by the plaintiff, testified that if the baby had been delivered by 3:40 PM, she would have sustained no neurologic damage.
When the jury was unable to agree on a verdict following deliberation for over 2 days, the court discharged the jury, declared a mistrial, and, after additional argument, finally struck the plaintiffs’ evidence and entered summary judgment for the defendant, and the plaintiffs appealed.
The Supreme Court of Virginia concluded that the evidence was sufficient to raise a jury issue regarding the nurses’ negligence, holding that the trial court erred in striking the plaintiffs’ evidence and in entering summary judgment for the defendant. The case was remanded for a new trial.
Failure to Follow Orders
Nurses have periodically found themselves in a lawsuit because of their failure to follow orders. Several cases below involve the failure to follow written orders, verbal orders, and a supervisor’s orders.
Written Orders
In July 1998, Kitchen became a resident of Wickliffe nursing home. She had been a patient of the appellant, Dr. Muenster, since 1963. While Kitchen resided in the nursing home, Muenster continued to act as her treating physician. When Kitchen entered Wickliffe, she had been receiving Coumadin, a blood thinner that requires monitoring by specific blood tests on a periodic basis. These blood tests were needed in order to adjust the dosage of Coumadin if necessary. Muenster had written the orders for the nurses to conduct blood tests every Wednesday. On July 29, 1998, the nurses administered these tests and faxed the results to Muenster. Kitchen continued to receive Coumadin at the dosage prescribed by Muenster even though the nurses apparently failed to conduct subsequent weekly blood tests. Likewise, Muenster did not receive any reports concerning the blood test results. During this time, Muenster made no further effort to check up on the resident. On August 19, 1998, Kitchen was found in distress and was transported to a hospital, where she went into renal failure and later lapsed into a coma and died as a result of toxic levels of Coumadin.
The appellees filed suit against Muenster and Wickliffe, alleging negligence and wrongful death. After appellees settled with Wickliffe, the case proceeded against Muenster. Following trial, the jury returned a verdict in favor of the physician, and the plaintiffs/appellees moved for a new trial. The appellees maintained that Muenster had a responsibility to follow up and make sure that the nurses fulfilled his orders. The appellees argued that if the jury found the nurses negligent in failing to follow the physician’s orders, then the jury also should have found the physician negligent on the basis that he controlled the performance of the nurses.
Muenster claimed that there was absolutely no evidence to establish that he had a right to control or direct the performance of the nurses beyond the issuance of the orders in question. Thus, the negligence of the nurses could not be imputed to him. The trial court granted the appellees’ motion for a new trial.
The Ohio Court of Appeals found that other than the issuance of treatment orders, there was no evidence presented at trial that established Muenster had the right to control and direct the performance of the nurses at the nursing home.
Verify Orders
Failure to take correct telephone orders can be just as serious as failure to follow, understand, and/or interpret a physician’s order(s). Nurses must be alert in transcribing orders because there are periodic contradictions between what physicians claim they ordered and what nurses allege was ordered. Orders should be read back, once transcribed, for verification purposes. Verification of an order by another nurse on a second telephone is helpful, especially if an order is questionable. Any questionable orders must be verified with the physician initiating the order. Physicians must authenticate their verbal order(s) by signing the written order in the medical record. Nurses who disagree with a physician’s order should not carry out an obviously erroneous order. In addition, they should confirm the order with the prescribing physician and report to the supervisor any concerns they may have with a particular order.
Verbal Orders
The evidence in Redel v. Capital Reg. Med. Ctr. noted that nurses failed to follow the treating doctor’s orders and established a submissible case of medical negligence against the hospital. It was established that, following bilateral knee replacement surgery, the action of nurses caused permanent drop foot in the patient. They failed to follow the doctor’s verbal orders to watch the patient closely and to place him in one continuous passive motion machine at a time during physical therapy.
Supervisor’s Orders
Failure of a nurse to follow the instructions of a supervising nurse to wait for her assistance before performing a procedure can result in the revocation of the nurse’s license. The nurse in Cafiero v. North Carolina Board of Nursing failed to heed instructions to wait for assistance before connecting a heart monitor to an infant. The heart monitor was connected incorrectly and resulted in an electrical shock to the infant. The board of nursing, under the nursing practice act of the state, revoked the nurse’s license. The board had the authority to revoke the nurse’s license even though her work before and after the incident had been exemplary. The dangers of electric cords are within the realm of common knowledge. The record showed that the nurse failed to exercise ordinary care in connecting the infant to the monitor.
Leaving Patient Unattended
The Navy veteran in Vanhoy v. United States successfully underwent coronary bypass surgery at the Veterans Affairs Medical Center. However, he was injured as a result of being left unattended for several hours by nursing personnel in the intensive care unit. The veteran suffered anoxic brain injury following a complication with his endotracheal tube and was left permanently disabled. An action was brought under the Federal Tort Claims Act.
The trial court awarded a lump-sum payment of $3,500,000 to the veteran for future medical care and services. On appeal, the trial court was found to have properly required the federal government to make an immediate lump-sum payment of future medical damages to the veteran.
Failure to Record Patient’s Care
The plaintiff in Pellerin v. Humedicenters, Inc. went to the emergency department at Lakeland Medical Center complaining of chest pain. An emergency department physician, Dr. Gruner, examined her and ordered a nurse to give her an injection consisting of 50 mg of Demerol and 25 mg of Vistaril. Although the nurse testified that she did not recall giving the injection, she did not deny giving it, and her initials were present in the emergency department record as having administered the medication. The nurse admitted that she failed to record the site and mode of injection. She said she might have written this information in the nurse’s notes, but no such notes were admitted into evidence.
The plaintiff testified she felt pain and a burning sensation in her hip during an injection. The burning persisted and progressively worsened over the next several weeks. The pain spread to an area approximately 10 inches in diameter around the injection site. She could not sleep on her right side, work, perform household chores, or participate in sports without experiencing pain.
The appeals court found that there was sufficient evidence to support a jury finding that the nurse had breached the applicable standard of care in administering an injection of Vistaril into Pellerin’s hip. The jury awarded the plaintiff $90,304.68 in total damages. The nurse admitted that she failed to record the site and mode of injection in the emergency department records. According to the testimony of two experts in nursing practice, failing to record this information is below the standard of care for nursing.
Medication Errors
Nurses are required to handle and administer a vast variety of drugs that are prescribed by physicians and dispensed by an organization’s pharmacy. Medications may range from aspirin to highly dangerous drugs (e.g., potassium chloride) administered through IV solutions. Medications must be administered in the prescribed manner and dose to prevent serious harm to patients.
The practice of pharmacy includes the ordering, preparation, dispensing, and administration of medications. These activities may be carried out only by a licensed pharmacist or by a person exempted from the provisions of a state’s pharmacy statutes. Nurses are exempted from the various pharmacy statutes when administering a medication on the oral or written order of a physician.
Failure to Administer Drugs
The trial court in Lloyd Noland Hospital v. Durham did not err in denying a hospital’s motion for a new trial based on the hospital’s argument that it did not breach an applicable standard of care in failing to administer a preoperative antibiotic to a patient. The record contained ample evidence of the existence of a standing order that required the nursing staff to administer preoperative antibiotics to patients prior to being treated.
In Kallenberg v. Beth Israel Hospital, a patient died after her third cerebral hemorrhage because of the failure of the physicians and staff to administer necessary medications. When the patient was admitted to the hospital, her physician determined that she should be given a specific drug to reduce her blood pressure and make her condition operable. For an unexplained reason, the drug was not administered. The patient’s blood pressure rose, and after the final hemorrhage, she died. The jury found the hospital and physicians negligent by failing to administer the drug and ruled that the negligence caused the patient’s death. On appeal, the appellate court found that the jury had sufficient evidence to decide that the negligent treatment had been the cause of the patient’s death.
Failure to Document Drug Wastage
The nurse in Matthias v. Iowa Board of Nursing failed to conform to minimum standards of practice by neglecting to document the loss or wastage of controlled substances. The minimum standard of acceptable practice requires nurses to count controlled substances each shift, to document all loss or wastage of controlled substances, and to obtain the signature of a witness to the disposal of controlled substances. Iowa Code allows a professional license to be suspended or revoked when the licensee engages in professional incompetency. Iowa Administrative Code section 655 4.19(2)(c), which regulates the actions of the board, defines professional incompetency as including “[w]illful or repeated departure from or failure to conform to the minimum standards of acceptable and prevailing practice of nursing in the state of Iowa.”
Matthias argued that the board erred as a matter of law because it failed to find that she knowingly or willfully failed to conform to the minimum standards of practice regarding documentation of loss or wastage of controlled substances. The Iowa Court of Appeals found that there was substantial evidence supporting the board’s finding that Matthias engaged in repeated departures from the minimum standards of nursing. The board, therefore, did not need to find that the departure was also willful.
Administering Drugs without a Prescription
In People v. Nygren, evidence was considered sufficient to establish probable cause for charging the director of nursing and a charge nurse with second-degree assault in the administration of unprescribed doses of Thorazine to a resident at a time when the patient was incapable of providing consent. There was probable cause to believe that the defendants committed the offense charged and that it would have been established if the prosecution had been permitted to present its witnesses, two of whom would have testified that the nurses administered the unprescribed doses of the drug. The treating physician told the special investigator from the attorney general’s office that Thorazine never had been prescribed for the resident while he was in the nursing facility. The resident was mentally retarded and incapable of consenting to administration of the drug. Medical evidence of the amount of Thorazine in the resident’s blood was consistent with stupor and impairment of physical and mental functions.
Administering Wrong Medication
In Abercrombie v. Roof, a solution was prepared by a nurse employee and injected into the patient by a physician. The physician made no examination of the fluid, and the patient suffered permanent injuries as a result of the injection. An action was brought against the physician for malpractice. The patient claimed that the fluid injected was alcohol and that the physician should have recognized its distinctive odor. In finding for the physician, the court stated that he was not responsible for the misuse of drugs prepared by an employee unless the ordinarily prudent use of his faculties would have prevented injury to the patient.
Failure to Clarify Orders
A nurse is responsible for making an inquiry if there is uncertainty about the accuracy of a physician’s medication order in a patient’s record. In the Louisiana case of Norton v. Argonaut Insurance Co., the court focused attention on the responsibility of a nurse to obtain clarification of an apparently erroneous order from the patient’s physician. The medication order, as entered in the medical record, was incomplete and subject to misinterpretation. Believing the order to be incorrect because of the dosage, the nurse asked two physicians present on the patient care unit whether the medication should be given as ordered. The two physicians did not interpret the order as the nurse did and, therefore, did not share the same concern. They advised the nurse that the attending physician’s instructions did not appear out of line. The nurse did not contact the attending physician but instead administered the misinterpreted dosage of medication. As a result, the patient died from a fatal overdose of the medication.
The court upheld the jury’s finding that the nurse had been negligent in failing to verify the order with the attending physician prior to administering the drug. The nurse was held liable, as was the physician who wrote the ambiguous order that led to the fatal dose. The court noted that it is the duty of a nurse to make absolutely certain what the physician intended, regarding both dosage and route. This clarification was not sought from the physician who wrote the order.
Administration of the Wrong Dosage
The nurse in Harrison v. Axelrod was charged with patient neglect because she administered the wrong dosage of the drug Haldol to a patient on seven occasions while she was employed at a nursing facility. The patient’s physician had prescribed a 0.5-mg dosage of Haldol. The patient’s medication record indicated that the nurse had been administering dosages of 5.0 mg, the dosage sent to the patient care unit by the pharmacy. A Department of Health investigator testified that the nurse admitted that she administered the wrong dosage and that she was aware of the facility’s medication administration policy, which she breached by failing to check the dosage supplied by the pharmacy against the dosage ordered by the patient’s doctor. The nurse denied that she made these admissions to the investigator. The commissioner of the Department of Health made a determination that the administration of the wrong dosage of Haldol on seven occasions constituted patient neglect.
On appeal, the New York Supreme Court, Appellate Division, held that the evidence established that the nurse administered the wrong dosage of the prescribed drug Haldol to the patient. This was a breach of the facility’s medication administration policy and was sufficient to support the determination of patient neglect.
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NEGLIGENT DRUG OVERDOSE |
Citation: Harder v. Clinton, Inc., 948 P.2d 298 (Okla. 1997)
Facts
Kayser was admitted to a nursing home on July 14, 1992. On the evening of September 30, she was transferred to a hospital after ingesting an overdose of tolbutamide, a diabetic medication. She was diagnosed as having a hypoglycemic coma caused by the lowering of her blood sugar from ingestion of the medication. An IV device was inserted in the dorsum area of her right foot to treat the coma. Gangrene later developed in the same foot, which eventually required an above-the-knee amputation.
As Kayser’s guardian, Harder, Kayser’s sister, brought a suit against the nursing home for harm caused to Kayser by an overdose of the wrong prescription administered to her while she was in the nursing home’s care and custody. At the close of Harder’s case, which followed a res ipsa loquitur pattern of proof, the trial court directed a verdict for the nursing home. The trial court ruled that Harder’s evidence fell short of establishing a negligence claim because her proof failed to show all the requisite foundational elements for res ipsa loquitur.
Issue
Did the trial court err when it directed a verdict for the nursing home based on its ruling that Harder had not satisfied the requirements for a res ipsa loquitur submission?
Holding
By the evidence adduced at trial, Harder met the standards for submission of her claim based on the doctrine of res ipsa loquitur pattern of proof.
Reason
In light of the circumstances that surround the injurious event, it seems reasonably clear that Kayser’s ingestion of a tolbutamide overdose would not have taken place in the absence of negligence by the nursing home’s staff. The record shows that Kayser had not been prescribed any diabetes medication while a resident at the nursing home and that she had never been prescribed that type of hypoglycemic drug. Testimony indicates Kayser was at the nursing home when she ingested the prescribed medication. There is no direct evidence that anyone else supplied to her the harm-dealing dosage or that the substance in question was kept in her room (or elsewhere within her control). Neither is there indication that any other cause contributed to the coma. According to Ms. Dixon, a licensed practical nurse and a medication clerk at the nursing home are responsible for the administration of medication to its residents. The administration of the wrong medication in an amount so excessive as to harm a resident is below the applicable standard of care.
Harder’s evidence laid the requisite res ipsa loquitur foundation facts from which it could be inferred that the injury—from an overdose of the wrong prescription—was one that would not ordinarily occur in the course of controlled supervision and administration of prescribed medicine in the absence of negligence. The responsibility for producing proof that would rebut the inferences favorable to Harder’s legal position was thus shifted to the defendant.
Discussion
1. Describe the elements the plaintiff’s attorney had to establish under the doctrine of res ipsa loquitur.
2. Describe what procedures you would implement to reduce the likelihood of similar occurrences.
Administering by the Wrong Route
The nurse in Fleming v. Baptist General Convention negligently injected the patient with a solution of Talwin and Atarax subcutaneously, rather than intramuscularly. The patient suffered tissue necrosis as a result of the improper injection. The suit against the hospital was successful. On appeal, the court held that the jury’s verdict for the plaintiff found adequate support in the testimony of the plaintiff’s expert witness on the issues of negligence and causation.
Failure to Discontinue Medication
A healthcare organization will be held liable if a nurse continues to inject a solution into a patient after noticing its ill effects. In the Florida case of Parrish v. Clark, the court held that a nurse’s continued injection of saline solution into an unconscious patient’s breast after the nurse noticed ill effects constituted negligence. After something was observed to be wrong with the administration of the solution, the nurse had a duty to discontinue its use.
Failure to Identify Correct Patient
A patient’s identification bracelet must be checked prior to administering medications. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Should a patient unwittingly be administered another patient’s medication, the attending physician should be notified, and appropriate documentation should be placed on the patient’s chart.
Failure to Note Order Change
In Larrimore v. Homeopathic Hospital Association, the physician wrote an instruction on the patient’s order sheet changing the method of administration from intramuscular to oral. When a nurse on the patient unit who had been off duty for several days was preparing to medicate the patient by injection, the patient objected and referred the nurse to the physician’s new order. The nurse, however, told the patient she was mistaken and administered the medication intramuscularly. The court went on to say that the jury could find the nurse negligent by applying ordinary common sense to establish the applicable standard of care.
Failure to Follow Infection-Control Procedures
Failure to follow proper infection-control procedures (e.g., proper hand-washing techniques) can result in cross-contamination among patients, staff, and visitors. Staff members who administer to patients, moving from one patient to another, must wash their hands after changing dressings and carrying out routine procedures.
Cross-Contamination
The patient in Helmann v. Sacred Heart Hospital was returned to his room following hip surgery. The patient’s roommate complained of a boil under his right arm. A culture was taken of drainage from the wound and was identified as Staphylococcus aureus. The infected roommate was transferred immediately to an isolation room. Until this time, hospital employees administered to both patients regularly, moving from one patient to another without washing their hands as they changed dressings and carried out routine procedures. On the day the roommate was placed in isolation, the plaintiff’s wound erupted, discharging a large amount of purulent drainage. A culture of the drainage showed it to have been caused by the presence of S. aureus. The infection penetrated into the patient’s hip socket, destroying tissue and requiring a second operation. The court ruled that there was sufficient circumstantial evidence from which the jury could have found that the patients were infected with the same S. aureus strain and that the infection was caused by the hospital’s employees’ failure to follow sterile techniques in ministering to its two patients.
Improper Sterilization
The patient in Howard v. Alexandria Hosp. brought a medical malpractice action against the hospital, seeking damages arising out of an operation performed with unsterile instruments. During her stay in the recovery room, the operating surgeon reported to the patient that she had been operated on with unsterile instruments. Allegedly, the nurse in charge of the autoclave used to sterilize the instruments did not properly monitor the sterilization process. Because of the patient’s fear of a variety of diseases, she was administered several human immunodeficiency virus tests. The patient was evaluated by an infectious disease specialist and was administered antibiotics intravenously. Following her discharge, the patient was placed on several medications and, as a result, developed symptoms of pseudomembranous enterocolitis. Testimony described the patient’s symptoms as resulting from the administration of the antibiotics. One expert testified that the patient had reason to be concerned for at least 6 months following the surgical procedure because of her risk of being infected with a variety of diseases. The hospital argued that the patient suffered no physical injury from the surgical procedure and the instruments used during the procedure. The circuit court entered summary judgment for the hospital on the grounds that no physical injury had been shown.
The Virginia Supreme Court held that the patient suffered injury resulting from measures taken to avoid infection following discovery of the use of unsterile instrumentation, even though the patient did not sustain any infection from use of the instruments. The case was reversed and remanded for a new trial on all issues.
Injury can be either physical or mental. It is clear that because of the hospital’s use of inadequately sterilized instruments, the plaintiff sustained positive physical and mental injury. As the direct result of the wrong, IV tubes and needles invaded the plaintiff’s body. She experienced physical pain and the discomforts of headache, nausea, vomiting, fever, chills, and unusual sweating.
Negligent Procedures
The following cases review several of the many procedures that can result in negligent acts that involve nurses.
Burns from Bovie Machine
The negligent use of a Bovie plate led to liability in Monk v. Doctors Hospital, in which a nurse had been instructed by the physician to set up a Bovie machine. The nurse placed the contact plate of the Bovie machine under the patient’s right calf in a negligent manner, and the patient suffered burns. The patient introduced instruction manuals issued by the manufacturer supporting a claim that the plate was placed improperly. These manuals had been available to the hospital. The trial court directed a verdict in favor of the hospital and the physician. The appellate court found that there was sufficient evidence from which the jury could conclude that the Bovie plate was applied in a negligent manner. There was also sufficient evidence, including the manufacturer’s manual and expert testimony, from which the jury could find that the physician was independently negligent.
Arm Laceration
The plaintiffs in Morris v. Children’s Hospital Medical Center alleged in their complaint that, while hospitalized at Children’s Hospital Medical Center, the patient suffered a laceration to her arm as a result of treatment administered by the defendants and their agents that fell below the accepted standard of care. Morris alleged from personal observation that the laceration to her daughter’s arm was caused by the jagged edges of a plastic cup that had been split and placed on her arm to guard an IV site. A nurse, in her affidavit, who stated her qualifications as an expert, expressed her opinion that the practice of placing a split plastic cup over an IV site as a guard constituted a breach of the standard of nursing care.
Negligent Injection
In Bernardi v. Community Hospital Association, a 7-year-old patient was in the hospital after surgery for the drainage of an abscessed appendix. The attending physician left a written postoperative order requiring an injection of tetracycline every 12 hours. During the evening of the first day after surgery, the nurse, employed by the hospital and acting under this order, injected the prescribed dosage of tetracycline in the patient’s right gluteal region. It was claimed that the nurse negligently injected the tetracycline into or adjacent to the sciatic nerve, causing the patient to permanently lose the normal use of the right foot. The court did not hold the physician responsible. It concluded that if the plaintiff could prove the nurse’s negligence, the hospital would be responsible for the nurse’s act under the doctrine of respondeat superior. The physician did not know which nurse administered the injection because he was not present when the injection was given, and he had no opportunity to control its administration. The hospital was found liable under respondeat superior. The hospital was the employer of the nurse: Only it had the right to hire and fire her, and only it could assign the nurse to certain hours, designated areas, and specific patients.
Cutting IV Tube Results in Amputation
A nurse employed by the defendant in Ahmed v. Children’s Hospital of Buffalo amputated nearly one third of a 1-month-old infant’s index finger while cutting an IV tube with a pair of scissors. Surgery to reattach the amputated portion of the finger was unsuccessful. The plaintiffs were awarded $87,000 for past pain and suffering and $50,000 for future damages. The defendant moved to set aside the verdict and sought a new trial, claiming that damages were excessive. The trial court rejected much of the testimony presented by the plaintiffs.
An appeals court determined that it was the jury’s function to assess the credibility of witnesses and to evaluate the testimony regarding the child’s pain, suffering, and disability. The trial court was found to have improperly invaded the jury’s province to evaluate the nature and extent of the injury. The appellate court found that the jury’s award of damages did not deviate materially from what would be reasonable compensation. The jury’s verdict was reinstated.
Foreign Objects Left in Patients
There are many cases involving foreign objects left in patients during surgery. The hospital in Ross v. Chatham County Hospital Authority was properly denied summary dismissal of an action in which a patient sought to recover damages for injuries suffered when a surgical instrument was left in the patient’s abdomen during surgery. This incident occurred as a result of the failure of the operating room personnel to conduct an instrument and sponge count after surgery. The borrowed servant doctrine did not insulate the hospital from the negligence of its nurses because the doctrine applies only to acts involving professional skill and judgment. Foreign objects negligently left in a patient’s body constitute an administrative act. A standard nursing check-off procedure should be used to account for all sponges and/or instruments used in the operating room. Preventative measures of this nature will reduce a hospital’s risk of liability.
The decedent’s estate in Holger v. Irish sued the surgeon and the hospital that employed the nurses who assisted the surgeon during the operation performed on the deceased. During the course of performing colon surgery, the surgeon placed laparotomy sponges in the decedent’s abdomen. After he had removed the sponges at the end of surgery, the two nurses assisting him counted them and verified that they had all been removed. Two years later, a sponge was discovered in the patient’s abdomen. It was removed, and the 92-year-old patient died. The jury decided in favor of the defendants, and the decedent’s estate appealed. The court of appeals reversed the decision, and the Oregon Supreme Court reviewed the case.
The Oregon Supreme Court held that the surgeon was not vicariously liable, as a matter of law, for the negligence of the operating room nurses. There was no evidence presented that the nurses were the defendant’s employees or that they were under the supervision or control of the defendant regarding their counting of the sponges. It was their sole responsibility to count the sponges. The nurses had been hired and trained by the hospital, which paid for their services.
Shared Responsibility for Sponge Counts
Romero v. Bellina describes how both nurses and surgeons are responsible for sponge counts. Bellina performed laser surgery on Romero at the hospital. During surgery, Bellina was assisted by Markey and Toups, surgical nurses employed by the hospital. Before the final suturing of the incision, the nurses erroneously informed Bellina that all the lap pads had been accounted for.
The day after the procedure, Romero complained of severe abdominal pain. A few months later, she discovered a mass in her abdomen near the area where the surgery was performed. She visited her treating physician, Dr. Blue, who determined through an X-ray that the mass in her abdomen was a lap sponge from the surgery with Bellina. Romero underwent corrective surgery with a different physician to remove the sponge.
The plaintiffs settled their claims with the hospital, and the case proceeded to trial against Bellina. After a bench trial, the trial court rendered judgment in favor of the plaintiffs for $170,966.41, and Bellina filed an appeal.
In ruling against Bellina, the trial court held that a surgeon’s duty to remove foreign objects placed in a patient’s body is an independent, nondelegable duty. The trial court found that Bellina was 70% at fault and the nurses employed by the hospital were 30% at fault. On appeal, Bellina argued that the trial judge erred in concluding that, in Louisiana, a surgeon cannot rely on surgical nurses to count sponges to make sure none are left inside a patient. Prevailing case law in Louisiana, however, holds that a surgeon has a nondelegable duty to remove all sponges placed in a patient’s body.
The Louisiana Court of Appeal held that although nurses have an independent duty, apart from the surgeon’s duty, to account for the sponges, and that they can be concurrently at fault with the surgeon for leaving a sponge in the patient’s body, the nurses’ count is a remedial measure that cannot relieve the surgeon of his or her nondelegable duty to remove the sponge in the first instance. Bellina had an independent, nondelegable duty to remove from the patient’s body the foreign substance that he had placed into her.
Current jurisprudence more accurately reflects the modern team approach to surgery, whereby the nurses’ count is a remedial measure that does not discharge the surgeon’s independent duty to ensure that all sponges are removed before an incision is closed.
The lesson in this case illustrates the importance of building redundancy in the delivery of health care to protect patients from harm. The responsibility of accounting for sponges, instruments, and other foreign objects lies with both the surgeon and nurse and, in some instances, the operating room technician. Even though some jurisdictions may free the surgeon of such responsibility, organizations should adopt a higher standard, assigning responsibility to both the nurse and surgeon and, where applicable, the operating room technician.
Patient Falls
Patients are highly susceptible to falling, and the consequences of falling are generally more serious with older age groups. Among senior citizens, falls represent the fifth-leading cause of death, and the mortality rate from falls increases significantly with age. For those age 75 years and older, the mortality rate from falls is five times higher than for those age 65 to 74 years, and the rate increases such that persons older than age 80 years have an even greater chance of experiencing a fatal fall.
Standards for the application of both physical and chemical restraints have been evolving over the past decade, and they are becoming more stringent. Because of patient rights issues, injuries, and the improper and indiscreet use of restraints, organizations are attempting to develop restraint-free environments.
Failure to Follow Policy
The plaintiffs, in Estate of Hendrickson v. Genesis Health Venture, Inc., filed an action for negligence, breach of contract, and negligent infliction of emotional distress against Genesis ElderCare Network Services, Inc. (GENS), among others.
Hendrickson suffered a massive stroke while she was a patient at a hospital in the summer of 1996. The stroke left her totally dependent on others for her daily care. During one of her admissions to Salisbury Center, a nursing home, operated by the defendant GENS, Ferguson went into Hendrickson’s room while making rounds and found Hendrickson dead, her head wedged between the mattress and the adjacent bed rail.
A jury found that Hendrickson’s death was caused by negligence. On appeal, GENS argued that the plaintiff failed to show that GENS knew or should have known of the risk of injury to Hendrickson from the side rails. The North Carolina Court of Appeals disagreed, finding that there was evidence tending to show that nursing assistants employed by GENS were aware that Hendrickson, on several occasions before her death on October 30, had slid to the edge of the bed and become caught between the edge of the mattress and the bed rail. Plaintiffs offered evidence showing that GENS had a restraint policy in effect that required a restraint assessment form for any resident for whom the use of restraints was required. The nursing staff was required to document the effectiveness of less restrictive measures. The assessment was required to be reviewed by a restraint alternative team/committee. Evidence was offered showing that no restraint assessment form had been completed for Hendrickson. In addition, her medical records contained no nursing notes documenting the use of less restrictive measures than the bed rails. The defendant argued that the bed rails were required for positioning and safety and were not restraints, so that no restraint assessment was required. Although the evidence was conflicting as to whether the bed rails were used as a restraint or as a safety measure, evidence indicated that the rails should have been considered a restraint in connection with Hendrickson’s care, as per organization policy.
The court of appeals concluded that the plaintiffs offered sufficient evidence to sustain a finding by the jury that defendant GENS was negligent in failing to conform to its own policies with respect to the use of physical restraints and that such negligence was the proximate cause of Hendrickson’s death.
Failure to Raise Bed Rails
The plaintiff in Polonsky v. Union Hospital suffered a fall and fractured her hip after the administration of a sleeping medication commonly known by the trade name Dalmane. The superior court awarded damages in the amount of the statutory limit of $20,000, and the hospital appealed. The appeals court held that from the Dalmane warning provided by the drug manufacturer and the hospital’s own regulation regarding bedside rails, without additional medical testimony, the jury could draw an inference that the hospital’s nurse failed to exercise due care when she failed to raise the bed rails after administering Dalmane.
Nurse Followed Safe Procedures
The fall of a patient is not always attributable to negligence. The New York Court of Appeals held that the evidence in Stoker v. Tarentino did not support discipline of a nurse on a charge that a wheelchair resident was improperly left alone in the bathroom. The negligence charge against the petitioner was predicated on a wheelchair resident having been left alone in the bathroom after the petitioner assisted another nurse in moving the resident from the bed to the wheelchair to the bathroom. All the nurses who testified agreed that there was no order, written or verbal, requiring the nurse to remain with the resident while she was in the bathroom. Policies and procedures of the nursing facility and the health department contained no instructions concerning toilet procedures with respect to wheelchair residents. The court held that disciplinary action against the nurse should be annulled and expunged from the petitioner’s personnel file.
Fall from Examination Table
A judgment for the plaintiff was affirmed in Petry v. Nassau Hospital, which was an action to recover damages for personal injuries suffered by the plaintiff’s wife. The patient had been placed on a narrow examination table in the emergency department of the defendant hospital and fell from the table. The table had no side rails in place to protect the patient from falling, and the patient had been left unattended by the nurse in charge.
11.6 DUTY TO QUESTION DISCHARGE
A nurse is not only a caregiver, but often takes on the role of a patient advocate. For example, a nurse has a duty to question the discharge of a patient if he or she has reason to believe that such discharge could be injurious to the health of the patient. Jury issues were raised in Koeniguer v. Eckrich by expert testimony that the nurses had a duty to attempt to delay the patient’s discharge if her condition warranted continued hospitalization. By permissible inferences from the evidence, the delay in treatment that resulted from the premature discharge contributed to the patient’s death. Summary dismissal of this case against the hospital by a trial court was found to have been improper.
11.7 DUTY TO REPORT PHYSICIAN NEGLIGENCE
An organization can be liable for failure of nursing personnel to take appropriate action when a patient’s personal physician is clearly unwilling or unable to cope with a situation that threatens the life or health of the patient. In a California case, Goff v. Doctors General Hospital, a patient was bleeding seriously after childbirth because the physician failed to suture her properly. The nurses testified that they were aware of the patient’s dangerous condition and that the physician was not present in the hospital. Both nurses knew the patient would die if nothing was done, but neither contacted anyone except the physician. The hospital was liable for the nurses’ negligence in failing to notify their supervisors of the serious condition that caused the patient’s death. Evidence was sufficient to sustain the finding that the nurses who attended the patient and who were aware of the excessive bleeding were negligent and that their negligence was a contributing cause of the patient’s death. The measure of duty of the hospital toward its patients is the exercise of that degree of care used by hospitals generally. The court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.
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SWOLLEN BEYOND RECOGNITION |
Citation: NKC Hosps., Inc. v. Anthony, 849 S.W.2d 564 (Ky. Ct. App. 1993)
Facts
Mrs. Anthony was in her first pregnancy under the primary care of Dr. Hawkins, her personal physician. Anthony was in good health, 26 years of age, employed, and about 30 weeks along in her pregnancy. On September 5, 1989, Anthony’s husband took her to the emergency department of Norton Hospital. She was experiencing nausea, vomiting, and abdominal pain. Because of her pregnancy, she was referred to the hospital’s obstetrical unit. In the obstetrical unit, Anthony came under the immediate care of Moore, a nurse, who performed an assessment.
Hawkins was called, and she issued several orders, including an IV start, blood work, urinalysis, and an antinausea prescription. Later that night, a second call was made to Hawkins, giving her the test results and informing her that the patient was in extreme pain. Believing that Anthony had a urinary tract infection, antibiotics were ordered along with an order for her discharge from the hospital.
That same night, a third call was made to Hawkins because of the pain Anthony was experiencing, as observed by Moore. Mr. Anthony also talked with Hawkins about his wife’s pain. Moore became concerned about Hawkins’s discharge order. Although aware of Moore’s evaluation, Hawkins prescribed morphine sulfate but was unrelenting in her order of discharge. Love, the resident physician on duty, did not see or examine the patient, although a prescription for morphine was ordered and administered pursuant to the telephoned directions of Hawkins. At approximately 2:00 AM, the morphine was administered to Anthony. She rested comfortably for several hours but awakened in pain again. At 6:00 AM, the patient was discharged in pain.
During trial testimony, Hale, a nursing supervisor, admitted that it was a deviation from the standard of nursing care to discharge a patient in significant pain. Moore, who was always concerned about the patient’s pain, had grave reservations about her discharge. She suggested that Love examine Anthony. She even consulted her supervisor, Nurse Hale.
At approximately 10:00 AM, Anthony was readmitted to the hospital. Upon readmission, Hawkins began personal supervision of her patient. It was determined that Anthony had a serious respiratory problem. The next day, the patient was transferred to the hospital’s intensive care unit.
The following day, the baby was delivered by cesarean section. It was belatedly determined at that time that Anthony’s condition was caused by a perforation of the appendix at the large bowel, a condition not detected by anyone at the hospital during her first admission. Almost 3 weeks later, while still in Norton Hospital, Anthony died of acute adult respiratory distress syndrome, a complication resulting from the delay in the diagnosis and treatment of her appendicitis.
Judgment was brought against the hospital. At trial, Dr. Fields, an expert witness for the estate of Anthony, testified that the hospital deviated from the standard of care. Every patient who presents herself to the labor and delivery area, the emergency department, or any area of the hospital should be seen by a physician before anything is undertaken and certainly before she is allowed to leave the institution. Further, to provide the patient with medication in the form of a prescription without the physician ever seeing the patient was below any standard of care with which Fields was acquainted. An award of more than $2 million was returned, with the apportionment of causation attributable to Hawkins as 65% and to the hospital as 35%. The hospital argued that the trial court erred in failing to grant its motions for directed verdict and for judgment notwithstanding the verdict because of the lack of substantial causation in linking the negligence of the hospital to Anthony’s death.
Issue
Was the negligence of the hospital superseded by the negligence of the patient’s primary care physician, and was the award excessive?
Holding
The Kentucky Court of Appeals held that negligence of the hospital was not superseded by the negligence of the patient’s primary care physician and that the award for pain and suffering was not excessive.
Reason
The hospital’s negligence is based on acts of omission, by failing to have Mrs. Anthony examined by a physician and by discharging her in pain. The hospital should have foreseen the injury to Anthony because its own staff was questioning the judgments of Hawkins while, at the same time, failing to follow through with the standard of care required of it. The defense that the hospital’s nurses were only following a “chain of command” by doing what Hawkins ordered is not persuasive. The nurses were not the agents of Hawkins. All involved had their independent duty to Anthony.
The evidence presented a woman conscious of her last days on earth, swollen beyond recognition, tubes exiting almost every orifice of her body, in severe pain, and who deteriorated to the point where she could not verbally communicate with loved ones. Among the last things she did was write out instructions about the care for her newborn child. The trial court, when confronted with a motion for a new trial on excessive damages, must evaluate the award mirrored against the facts. It is said, if the trial judge does not blush, the award is not excessive. No question, the award was monumental, but so was the injury.
Discussion
1. Was Dr. Hawkins’s telephone “assessment” of the patient appropriate?
2. How would you apportion negligence among the attending physician, resident, obstetrical nurse, nursing supervisor, and hospital?
3. What are the lessons that should be learned from this case?
4. What educational issues are apparent?
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The Court’s Decision |
The court concluded there was ample evidence to support the trial judge’s conclusion that the nursing staff breached the standard of care. Testimony indicated that Ard would have had a much better chance of survival if he had been transferred to the intensive care unit. The general damages award was raised from $50,000 to $150,000.