Maternal Child support

T he fifteen year-old patient was scheduled for surgery on the right side of his brain to remove a right tem-

poral lobe lesion that was believed to be

causing his epileptic seizures.

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The surgery began with the sur-

geon making an incision on the left

side, opening the skull, penetrating the

dura and removing significant portions

of the left amygdala, hippocampus and

other left-side brain tissue before it was

discovered that they were working on

the wrong side.

The left-side wound was closed,

the right side was opened and the pro-

cedure went ahead on the right, correct

side.

The error in the O.R. was revealed

to the parents shortly after the surgery,

but only as if it was a minor and incon-

sequential gaffe.

The patient recuperated, left the

hospital, returned to his regular activi-

ties and graduated from high school

before his parents could no longer deny

he was not all right. After a thorough

neurological assessment he had to be

placed in an assisted living facility for

brain damaged individuals.

When the full magnitude of the

consequences came to light a lawsuit

was filed which resulted in a $11 mil-

lion judgment which was affirmed by

the Supreme Court of Arkansas.

A circulating nurse has a le- gal duty to see that surgery does not take place on the wrong side of the body. The preoperative documents failed to identify on which side the surgery was to be done. It was below the standard of care for the circulating nurse not to notice that fact and not to seek out the correct infor- mation.

SUPREME COURT OF ARKANSAS December 13, 2012

Operating Room: Surgical Error Blamed, In Part, On Circulating Nurse’s Negligence.

Surgical Error Blamed, In Part, On

Circulating Nurse’s Negligence

The Court accepted the testimony

of the family’s nursing expert that a

circulating nurse has a fundamental

responsibility as a member of the surgi-

cal team to make sure that surgery is

done on the correct anatomical site,

especially when it is brain surgery.

The circulating nurse is supposed

to understand imposing terms like se-

lective amygdala hippocampectomy

and know the basics of how it is sup-

posed to be done.

Hospital policy called for the sur-

geon, the anesthesiologist, the circulat-

ing nurse and the scrub nurse or tech to

take a “timeout” prior to starting a sur-

gical case for final verification of the

correct anatomical site.

The circulating nurse should have

available three essential documents, the

surgical consent form, the preoperative

history and the O.R. schedule.

The full extent of the error, that is,

a full list of the parts of the brain that

were removed from the healthy side,

should have been documented by the

circulating nurse, and failure to do so

was a factor that adversely affected the

patient’s later medical course, the pa-

tient’s nursing expert said. Proassur- ance v. Metheny, __ S.W. 3d __, 2012 WL 6204231 (Ark., December 13, 2012).

January 2013 Volume 21 Number 1

Inside this month’s issue…

January 2013 New Subscriptions See Page 3

Operating Room/Circulating Nurse – Nursing Home Admission Labor & Delivery Nursing/Pitocin/Fetal Monitor Labor & Delivery Nursing/High Risk Patient/Fetal Monitor Medication Error/Nursing Negligence – Correctional Nursing Age Discrimination – Race Discrimination/Minority Nurses Skilled Nursing/Blood Draws/PT/INR/Reporting To Physician Flu Immunization/Public Health Emergency – Nursing Assessment Nurse Practitioner/Pre-Signed Prescriptions – Threat Of Violence

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 2

Labor & Delivery, Pitocin, Fetal Monitors: Court Finds Evidence Of Nursing Negligence.

T he mother was admitted to the labor and delivery unit at 10:10 p.m. for induction of labor.

The baby was delivered vaginally at

5:27 p.m. the next afternoon with the um-

bilical cord around her neck. She did not

start breathing on her own for almost seven

minutes and then began having seizures.

A pediatric neuroradiologist, who per-

formed ultrasound scans on the child’s

brain and who would later submit an expert

report for the family in their lawsuit

against the hospital, related the child’s

problems to asphyxia consistent with bra-

dycardic events prior to her delivery.

The Court of Appeals of Texas ac-

cepted reports prepared by the family’s

experts, an ob/gyn physician, a labor and

delivery nurse and the pediatric neurora-

diologist which pointed directly at the neg-

ligence of the labor and delivery nurses.

Family’s Medical Expert

When Cytotec has been used for cervi-

cal ripening followed by IV Pitocin for

induction of labor, the labor and delivery

nurses have the responsibility to maintain

readable tracings of the fetal heart tones

and the maternal contraction patterns. The

nurses should not start or continue Pitocin

when there are non-reassuring fetal heart

tracings, when the contractions cannot be

monitored or with uterine hyperstimula-

tion. The physician must be notified of

non-reassuring fetal heart tracings.

Family’s Nursing Expert

When Pitocin is in use the nurse must

see to it that the equipment that monitors

uterine contractions is recording the

mother’s contractions, the family’s nursing

expert said.

Review of the fetal heart monitor trac-

ings showed several lengthy intervals of

non-reassuring heart rates. The records

further revealed that a nurse increased the

Pitocin even with late decelerations with

decreased variability, until it was eventu-

ally decreased and then stopped a few

hours before birth by a different nurse, but

then restarted again until the birth with

ominous tracings showing on the monitor. Abilene Reg. Med. Ctr. v. Allen, __ S.W. 3d __, 2012 5951982 (Tex. App., November 29, 2012).

The patient’s nursing ex- pert explained that the Pito- cin drip is usually con- trolled by the labor and de- livery nurse. It is increased to increase contractions and decreased or stopped altogether if the contractions get too strong, too long or too close to- gether. The Pitocin is to be ad- justed based on whether the baby’s fetal heart trac- ings are reassuring or non- reassuring. It is only in- creased if the tracings are reassuring. The nursing expert’s re- view of the chart revealed that the tocotransducer which identifies the begin- ning and end of each of the mother’s contractions was not working for the first three hours after the mother was admitted to the labor and delivery unit. There were also numerous intervals evident from the fetal monitor tracings of non-reassuring tones that should have been but were not reported. If the physician had been notified of the non- reassuring tones a cesar- ean could have been done early on to save the child from brain damage.

COURT OF APPEALS OF TEXAS November 29, 2012

The Court of Appeals of Mississippi

ruled there was no deviation from the stan-

dard of care by the patient’s labor and de-

livery nurses. Norris v. Southwest Miss. Reg. Med. Ctr., __ So. 3d __, 2012 6118005 (Miss. App., December 11, 2012).

The labor and delivery nurse’s assessment was correct that the mother was not actually in labor. When the fetal heart tone was lost a nurse promptly began trying to reach the physician while another nurse kept trying to get a fetal heartbeat.

COURT OF APPEALS OF MISSISSIPPI December 11, 2012

T he patient was admitted to the hospital through the E.R. for what were at the time believed to be labor pains.

She was thirty-one years old and thirty

-three weeks pregnant and was considered

high-risk due to obesity, insulin-dependent

diabetes, four previous cesareans and hav-

ing given birth to very large twins.

The labor and delivery nurse immedi-

ately started a fetal heart monitor and a

tocodynamometer and performed a vaginal

exam which showed no dilation of the cer-

vix. The patient’s ob/gyn who had deliv-

ered her other children likewise found no

dilation and gave orders for monitoring her

blood sugars and giving insulin.

Later that morning the patient’s ab-

dominal pain increased and so the nurse

paged her physician. The nurse was get-

ting no heart tones on the monitor so she

asked another nurse to keep checking for a

fetal heartbeat while she kept paging the

physician. A few minutes later the physi-

cian called and said he was on his way.

The nurse documented all this in the chart.

The physician was there within min-

utes and delivered the baby by cesarean,

but there had been a complete uterine rup-

ture and separation of the placenta.

Labor & Delivery: Nurses Ruled Not Negligent.

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 3

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Legal eagle eye newsletter

For the Nursing Profession

ISSN 1085-4924 © 2012/2013 Legal Eagle Eye Newsletter

 

Indexed in

Cumulative Index to Nursing & Allied

Health Literature TM

 

Published monthly, twelve times per year.

Mailed First Class Mail at Seattle, WA.

E. Kenneth Snyder, BSN, RN, JD

Editor/Publisher

PO Box 4592

Seattle, WA 98194–0592

Phone (206) 440-5860

Fax (206) 440-5862

kensnyder@nursinglaw.com

www.nursinglaw.com

The law strongly favors alternative

methods of dispute resolution such as arbi-

tration rather than jury trials in civil court

to resolve claims and disputes, but only if

both sides have agreed.

An agreement to arbitrate is basically

a civil contract. For a contract is to be

binding both parties must have the capacity

and the authority to enter into the contract.

The patient did not have the capacity

to enter into a binding contract on his own

behalf because he was quite confused.

The daughter-in-law had no actual

authority to sign a contract as her father-in-

law’s agent. There was nothing to support

the nursing facility’s argument that the

patient somehow communicated to the

facility that he wanted his daughter-in-law

to sign for him or even had the mental ca-

pacity to make such a communication.

A year earlier he had signed a durable

power of attorney naming his son as his

attorney in fact. The son was the spouse of

the daughter-in-law who signed the arbitra-

tion agreement, but that fact was irrelevant.

The nursing facility, the Court said,

made no good faith effort to determine

who was authorized to sign or to request

that that person discuss the arbitration

agreement and make the decision whether

or not to sign.

The patient did sign at least one more

admission contract upon readmission after

a subsequent hospitalization, when he ap-

parently was lucid enough to do so, but the

arbitration agreement was not included. Koch v. Keystone Pointe Health & Rehab, 2012 WL 6098358 (Ohio App., December 10, 2012).

T he patient was transported by ambu-lance from the hospital to a nursing facility and was met there by his daughter-

in-law.

The daughter-in-law signed the facil-

ity’s admission contract because the patient

was quite confused at the time and was not

lucid enough to sign any papers.

The daughter-in-law also signed an

arbitration agreement separate from the

admission contract. The arbitration agree-

ment stipulated that all legal claims includ-

ing negligence, malpractice and violation

of the resident’s rights, but not non-

payment of nursing home fees, would not

be decided in a court of law but would be

resolved through binding arbitration.

The patient fell in the nursing home

and then passed away four months later.

After his death his daughter as personal

representative of his probate estate sued

the nursing facility for negligence.

The nursing facility petitioned the

court to dismiss the lawsuit so the case

could be decided by arbitration as stipu-

lated in the arbitration agreement signed by

the patient’s daughter-in-law.

The Court of Appeals of Ohio ruled

the case did not belong in arbitration but

should stay on the jury trial docket of the

local county court of common pleas.

Nursing Home Admission: Daughter-In-Law Had No Authority To Sign, Arbitration Agreement Void.

The patient’s daughter-in- law informed the nursing facility staff that she did not have power of attorney to act on the patient’s behalf, but the nursing facility dis- regarded that fact and told her that it would not admit the patient if she did not sign all the forms, including the arbitration agreement. Under these circum- stances there is no evi- dence the nursing facility acted in good faith having reason to believe that the daughter-in-law had author- ity to enter into a legally binding contract on the pa- tient’s behalf. The nursing facility’s de- mand that she sign the forms lest her father-in-law be denied admission for necessary rehabilitation did not create any apparent au- thority for her to bind the patient to a contract.

COURT OF APPEALS OF OHIO December 10, 2012

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 4

Medication Error: Court Upholds Verdict For Nursing Negligence.

Two physicians testified that in their opinion, to a reasonable degree of medi- cal probability, the nursing facility erroneously admin- istered anti-diabetic medi- cation to the deceased, which caused a severe drop in her blood sugar. Two other physicians, the nursing facility’s experts, could only speculate that malnutrition or a urinary tract infection could have caused the problem. The physicians’ testimony, taken along with the testi- mony of two former nursing home employees as to the chaotic conditions at the facility, supports the jury’s verdict against the facility. The nursing facility had complete control of the anti -diabetic medication at the facility that was being taken by residents who used such medication, that is, none of the four residents who ad- ministered their own medi- cations were on such medi- cation. It is not a realistic explana- tion that anti-diabetic medi- cation was given to this resident by a third party. Even if that did happen it would amount to lax super- vision of the residents’ en- vironment which itself would be negligence.

UNITED STATES COURT OF APPEALS SIXTH CIRCUIT

December 19, 2012

T he eighty year-old nursing home resi-dent suffered from Parkinson’s dis- ease, dementia and the aftereffects of a

stroke at age seventy-four.

She had no history whatsoever of dia-

betes or hypoglycemia.

She was found unresponsive in her

room in the middle of the morning and was

rushed to the hospital where her blood glu-

cose was discovered to be 12.

The patient was diagnosed with en-

cephalopathy due to hypoglycemia which

the physicians suspected came from oral

ingestion of anti-diabetic medication.

The patient came out of her coma but

never regained her semi-independent func-

tioning and died within fifteen months.

The jury awarded the family $1,250,000 as

punitive damages, $400,000 for her pain

and suffering and $554,000 attorney fees

and costs. The US Court of Appeals for the

Sixth Circuit (Ohio) upheld the verdict.

Disturbing Conditions At The

Nursing Home

Two former employees of the nursing

home described disturbing conditions at

the facility, including disorganized medica-

tion carts, pre-pouring of medications and

falsification of medical records.

There were only two LPNs assigned

for the care of eighty residents. The LPNs

were often rushed and as a result of their

haste regularly engaged in the practice of

pre-pouring medications. The medication

cart was “a mess” most of the time. The

wrong pills were in the medication trays.

The nurses would borrow medication from

one resident and give it to another. At the

time of her death more than fifty of this

resident’s pills were found to be missing.

A supervisor altered records to cover

up a medication error. Staff and supervi-

sors routinely filled in “holes” in residents’

medication administration records retroac-

tively at the end of the month.

In the Court’s judgment, the whole

situation went beyond simple negligence

and justified the jury’s decision to award

punitive damages for conscious and mali-

cious disregard of the resident’s well estab-

lished legal right to a safe environment free

from significant medication errors. Freude- man v. Landing, __ F. 3d __, 2012 WL 6600356 (6th Cir., December 19, 2012).

W hen the inmate was booked into the jail his medical history included the fact he was being treated by a local spe-

cialist for autoimmune chronic hepatitis,

esophageal varices, anemia, jaundice and

splenomegaly.

Early in the a.m. the day after being

booked he vomited a large puddle of blood

in his cell. He explained to a jail officer

that he had gastric ulcers for which he took

numerous medications and that he had had

twenty-seven units of blood transfusions

during the previous month.

The officer phoned one of the jail

nurses at home and explained the situation.

She told the officer to give him some liq-

uid antacid. He threw up lots more blood

again. When she was phoned again the

nurse told the officer to give him a Phener-

gan suppository. When they phoned her

again the nurse finally decided to come in

to the jail. She had the inmate moved to

medical solitary and continued the supposi-

tories. The next day the inmate died from

a massive gastrointestinal hemorrhage.

Correctional Nursing: Court Says Nurse Was Deliberately Indifferent.

The nurse violated the in- mate’s Constitutional rights through deliberate indiffer- ence to his serious medical needs.

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

December 12, 2012

The US Court of Appeals for the Fifth

Circuit (Texas) placed blame on the nurse

for failing at least to alert the physician and

for not sending the inmate to the hospital

due to the seriousness of his condition.

Deputies working for the county sher-

iff who was responsible for the jail did all

they were expected to do and the jail phy-

sician was never informed by the nurse

what was actually going on with this in-

mate. Bolin v. Wichita County, 2012 WL 6194359 (5th Cir., December 12, 2012).

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 5

Age Bias: Court Sees Grounds For CNA’s Lawsuit.

A n Hispanic CNA in her mid-fifties had consistently positive performance reviews and was rewarded with pay raises

for more than sixteen years and was recog-

nized for her service by being selected for

the Resident Care Specialist Leadership

Council at the nursing home.

Then a new director of nursing took

over. A few months later the CNA was

suspended and then fired over an incident

involving alleged substandard care of a

total-care patient.

The CNA sued for race and age dis-

crimination.

The US District Court for the District

of Colorado found evidence to support the

allegations of age discrimination.

As soon as she came on board as in-

terim DON the person who would eventu-

ally become the new permanent DON

started making remarks to the CNA point-

ing out that she was the oldest CNA in the

facility and was “as old as the wood-

works,” asking her when she was going to

retire, telling her that she was too old for

her job and telling her that she was “like an

old penny that keeps coming back.”

As interim DON she also reportedly

threatened the CNA that she was going to

be watching her closely and would fire her

as soon as she became permanent DON.

The CNA was told this well before the

occurrence of the patient-care incident that

was used ostensibly to justify her firing. Alfonso v. SCC Pueblo, 2012 WL 6568468 (D. Colo., December 17, 2012).

A discriminatory motive can be seen in the DON’s derogatory remarks about the CNA’s age. These remarks raise seri- ous questions whether the patient-care incident was merely a pretext to move the CNA out because of her age.

UNITED STATES DISTRICT COURT COLORADO

December 17, 2012

Race Discrimination: Nurses Did Not Prove Their Case.

A fter complaining about various as-pects of their working conditions over a span of several years, two minority

nurses sued their employer for race dis-

crimination.

The lawsuit alleged they were victims

of discrimination as well as victims of re-

taliation for their complaints about what

they considered to be discrimination.

The US Court of Appeals for the Sev-

enth Circuit (Illinois) dismissed their case.

More Favorable Treatment Alleged

For Non-Minority Nurses

The two African-American nurses,

before filing their lawsuit, had delivered a

written petition to human resources at the

hospital complaining that Filipino nurses

were being given easier assignments, more

training and more leadership opportunities.

These allegations were apparently

investigated by human resources and dis-

missed as unfounded.

The Court said that these allegations,

if they could be proven, would certainly be

adequate grounds for a civil rights lawsuit.

However, a lawsuit cannot be based simply

on vague assertions and innuendo.

For a successful discrimination lawsuit

the alleged victim must identify a specific

person or persons who were treated more

favorably, specify the manner in which

they were treated more favorably and show

that they were similar to the victim in all

relevant respects except for not being a

racial minority. There was no specific

person or persons identified for purposes

of comparison in the nurses’ lawsuit.

Alleged Harassment

Was Not Racially Motivated

The two nurses were criticized and

given negative performance evaluations for

lack of teamwork. One of them was called

a “trouble maker,” a “cry baby” and a

“spoiled child” in one particular meeting

with a supervisor and had to leave the

meeting in tears.

Even if all this was true, the Court was

not able to find any discriminatory racial

motivation behind the nurses’ supervisors’

actions, which is a necessary element for

them to be able to go forward with a civil

rights lawsuit against their employer. Brown v. Advocate, __ F. 3d __, 2012 WL 5870725 (7th Cir., November 21, 2012).

The alleged victims con- tend that the Court can infer racial bias from the fact that their employer did not re- spond to their complaints as they would have liked. The fact that someone dis- agrees with you or declines to take your advice, without anything more, does not suggest that they are dis- criminating against you. All of the supervisors’ criticisms used non-racial language and there was nothing in the context to suggest the criticisms were racially motivated. Perhaps their supervisors’ criticisms were unfair, but there is no evidence that the criticisms were moti- vated by race. The civil rights laws pro- tect against discrimination, not personal animosity or juvenile behavior. Over a two-year period the alleged victims made nu- merous complaints to man- agement, some involving racial issues and others in- volving general workplace disputes. The complaints were in- vestigated. Action was taken on some of them and declined as to others. The alleged “harassment” was only negative feedback about lack of teamwork.

UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT November 21, 2012

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 6

Flu Immunization: Public Health Emergency, Nurse Cannot Be Sued.

I n 2009 in response to an outbreak of H1N1 influenza the US Secretary of Health and Human Services made a formal

declaration that a public health emergency

existed and recommended administration

of a specific antiviral vaccination.

The Secretary’s authority came from

the US Public Readiness and Emergency

Preparedness (PREP) Act of 2005.

The Governor of New York then is-

sued an executive order authorizing state

and local authorities to take steps to dis-

tribute and administer the vaccine.

A local county health department held

a vaccination clinic in a local school where

a nurse gave a kindergartener the flu vac-

cine without either parent’s consent.

The child’s mother sued the county

health department for negligence and civil

battery. The New York Supreme Court,

Appellate Division, dismissed the case. Continued on page 7.

The US Public Readiness and Emergency Prepared- ness Act protects licensed health professionals who are authorized to administer or dispense countermea- sures in response to a pub- lic health or bioterrorism emergency. The Act does not detract from a licensed healthcare professional’s legal immu- nity when a countermea- sure is administered with- out consent. As a Federal law the Act takes precedence over any state statute or rule of the common law that goes con- trary.

NEW YORK SUPREME COURT APPELLATE DIVISION

November 21, 2012

Skilled Nursing: Court Finds Substandard Procedures, Upholds Civil Monetary Penalty.

A fter the death of a seventy-eight year-old patient who had been on Cou- madin for a blood clot in her leg, survey

inspectors decided that the facility’s proce-

dures for laboratory work were out of com-

pliance with Federal standards.

A civil monetary penalty was levied of

$3050 per day for more than half a year,

the period of time during which the facil-

ity’s procedures were deemed out of com-

pliance, more than $587,000, which was

upheld by the US Court of Appeals for the

Fourth Circuit (North Carolina).

Resident’s Death Sparks Investigation

A nurse saw and charted swelling in

the patient’s lower leg and reported it to

the patient’s physician. He ordered a Dop-

pler test which found a blood clot. The

physician ordered 10 mg of Coumadin plus

Lovenox daily and daily PT/INR tests.

The care plan was “badly mishandled”

according to the Court and the PT/INR

testing did not begin for over a month.

The first result showed a critically high

Coumadin level.

After the same result two days later

the physician scaled back the Coumadin to

6 mg. The order for a follow up PT/INR

was not properly transcribed and the PT/

INR was delayed two more days until an-

other nurse caught the mistake.

The blood sample was sent back by

the lab as too small to test so a nurse tried

to draw another the next day. The patient

refused the blood draw, which was her

right, but any such refusal has to be re-

ported promptly to the physician, which

was not done.

The nurse did see and charted unusual

bruising around the breast and shoulder,

possible signs of a Coumadin overdose, but

that also was not reported to the physician

as it should have been.

Finally a sample was drawn which

showed a critically high Coumadin level

and the patient was sent to the hospital.

The hospital administered one dose of Vi-

tamin K, but the family then decided to

decline further treatment and the patient

passed away the next day. Universal Healthcare v. Sebelius, 2012 WL 6217619 (4th Cir., December 14, 2012).

A skilled nursing facility is required by Federal regula- tions to ensure that each resident’s drug regimen is free from drugs given in ex- cessive doses, for exces- sive duration or without adequate monitoring in the presence of adverse conse- quences which indicate the dose should be reduced or discontinued. A skilled nursing facility must have a system in place to ensure that labs are drawn when ordered, drawn correctly, processed correctly and the results re- ported to the patients’ phy- sicians. Residents on anticoagu- lant therapy require not only lab tests but also pro- tocols for monitoring and observation by direct care- givers. Special instructions for Coumadin should be placed in care plans that any sub- tle signs of injury should be recorded. At this facility there was a systematic failure to antici- pate and plan for the risk of bleeding, to monitor for ad- verse reactions and to in- struct rank-and-file staff on touching and handling resi- dents on Coumadin.

UNITED STATES COURT OF APPEALS FOURTH CIRCUIT December 14, 2012

 

 

Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 7

Nursing Assessment: Damages Awarded For Negligence.

There was no error by the judge who assigned fault 100% to the night nurse and held the agency that sup- plied her to the hospital 100% liable for the $1.4 mil- lion judgment. The day nurse, the hospi- tal and the treating physi- cian were properly dis- missed from the lawsuit. There was no evidence the day nurse breached the standard of care in her nursing assessments or her nursing care of the patient. There was nothing wrong with the treating physi- cian’s initial diagnosis and plan of care for the patient. The patient was already irreversibly paralyzed by the time the hospital’s resi- dent was alerted to the pa- tient’s condition by the night charge nurse. The medical review panel criti- cized him for delay in ob- taining the diagnostic scans, but even if the scans were done and the neuro- surgeon came in and oper- ated earlier the outcome would not have changed. When the treating physi- cian was finally contacted during the night by the resi- dent at the hospital, there was likewise nothing he could have done at that point that would have changed the outcome.

COURT OF APPEAL OF LOUISIANA December 5, 2012

Continued from page 6.

Legal Immunity

Healthcare Professionals

Countermeasures in a Declared

Public Health Emergency

The PREP Act states that a covered

person shall be immune from suit and li-

ability under Federal and state law with

respect to all claims for loss caused by,

arising out of, relating to or resulting from

the administration of a covered counter-

measure to an individual.

The definition of a covered person

includes licensed health professionals or

other individuals who are licensed by the

state in which the countermeasure was

prescribed and authorized to administer

and dispense such countermeasures.

The only exception to the broad sweep

of immunity granted to covered persons

with respect to administration of counter-

measures is for death or serious injury

caused by willful misconduct.

Congress also enacted the Counter-

measures Injury Compensation Program

creating an administrative agency to handle

claims for certain injuries stemming from

countermeasures taken in response to the

declaration of a public-health emergency,

which was intended to be the exclusive

legal remedy for persons with such claims.

Lack of Consent Does Not Create

Basis for Legal Action

The Court was not persuaded that an

exception should be read into the PREP

Act, as argued by the mother in her law-

suit, for situations involving a duly de-

clared public health emergency where a

countermeasure is administered without

informed consent. A healthcare provider

could be held liable if an immunization

was given without consent under normal,

everyday circumstances.

The Act itself and supporting Federal

regulations and an Executive Order from

the President make no mention of any in-

tent by Federal lawmakers for the courts to

read in such an exception. Parker v. St. Lawrence County Public Health Department, __ N.Y.S.2d __, 2012 WL 5869773 (N.Y. App., November 21, 2012).

T he patient was an insulin-dependent diabetic with a history of drug abuse. During the night he was admitted to

the hospital suffering from abdominal pain,

back pain and vomiting which had caused

severe dehydration.

The diagnosis was diabetic ketoacido-

sis which his physician intended to treat by

gradually restoring hydration and correct-

ing his blood sugars through careful insulin

management.

At 9:00 a.m. the physician determined

that his condition was improving and or-

dered his IV hydration, antibiotics and

blood sugar testing continued.

The day nurse performed two head-to-

toe assessments of the patient. She charted

that the abdomen was soft, that there were

active bowel sounds and that the patient

was voiding yellow urine. He had equal

range of motion in his upper and lower

extremities, equal and strong extremity

strength and a steady gait.

Night Nurse’s Assessments

Significant Findings Not Reported

At 7:00 p.m. the night nurse who was

an agency nurse took over the patient’s

care. Right away the patient’s wife in-

formed the nurse that his legs were numb

and that one leg had flopped out of the bed.

The nurse told the wife this was caused by

his fever. The nurse did not report this to

the charge nurse or to a physician.

At 8:15 p.m. the night nurse did her

first head-to-toe assessment. She charted

that the abdomen was firm and strength

was weak in all the extremities. There was

no charting as to weakness being equal or

unequal and her note for sensation was

“unable to assess.” There was no report to

the charge nurse or to a physician.

At 3:40 a.m. the patient told the nurse

he could not move his legs at all. He had

not voided since 1:30 p.m. the previous

afternoon, so the nurse inserted a Foley

and obtained a large amount of dark urine.

Finally the nurse notified the charge

nurse who called in a resident. By this

time the patient was irreversibly paraplegic

from an epidural abscess in the thoracic

spine which could not be corrected surgi-

cally. The Court of Appeal of Louisiana

approved a $1.4 million judgment. John- son v. Ray, __ So. 3d __, 2012 WL 6055584 (La. App., December 5, 2012).

Flu Immunization: Public Health Emergency, Nurse Cannot Be Sued.

 

 

Threat Of Violence: Nurse’s Termination Upheld, Allegations Of Sexual Harassment Dismissed.

A nurse was fired after she made a remark to one coworker that was interpreted as a threat to shoot another

coworker over a remark he made to her

about her husband leaving her.

After being fired she sued the hos-

pital for sexual harassment and for re-

taliation for reporting sexual harass-

ment. The sexual harassment, she said,

involved the coworker whom she later

threatened being a little too friendly,

smiling and staring at her too much and

making one vulgar sexually-oriented

remark to her.

The US Court of Appeals for the

Tenth Circuit (Oklahoma) dismissed the

nurse’s case.

A lawsuit for a sexually hostile

work environment can only be based on

conduct that permeates the workplace

with intimidation, ridicule and insult.

Garden-variety boorish, immature,

juvenile and annoying behavior is not

uncommon in the American workplace

and does not give grounds for a lawsuit

for sexual harassment, the Court said.

Another important factor was that

the nurse was the perpetrator’s supervi-

sor, not the other way around.

The most important factor in the

Court’s mind was that the hospital had

legitimate, non-discriminatory and non-

retaliatory grounds to terminate the

nurse, her threat of violence against a

coworker.

She reportedly told a coworker she

owned a .357 magnum handgun and

knew how to use it and stated that the

kind of remark another coworker

voiced to her about her marriage was

the kind of thing that gets people shot. Gaff v. St. Mary’s Reg. Med. Ctr., 2012 WL 6604579 (10th Cir., December 19, 2012).

The reason given by the hospital for the nurse’s ter- mination, that she made a threat of violence against a fellow employee, was not a pretext to cover up a plot to fire her for her complaint about sexual harassment. The nurse told a coworker that she owned a gun and knew how to use it and said that what her coworker said to her was the kind of thing that gets people shot.

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 19, 2012

Stolen Prescription Form: Nurse Practitioner Implicated In Narcotic-Overdose Death.

A physician and a nurse practitioner em-ployed in a Federally-funded community health clinic were originally named as defen-

dants in a wrongful-death lawsuit arising out of

the death of the nurse practitioner’s daughter’s

friend from acute fentanyl poisoning.

The deceased was found dead with a par-

tially dissolved 1600 mcg Actiq lozenge in her

mouth. Post-mortem toxicology also found

Xanax in her system.

The Actiq lozenge was apparently the last of

six obtained by the deceased from a community

pharmacy using a prescription form signed in

blank by the physician and given to the nurse

practitioner and then stolen by the deceased or

given to the deceased by the nurse practitioner’s

daughter.

The daughter was charged with criminal

offenses in connection with the death but died

herself before her case went to court.

The investigation revealed that the deceased

had previously come into possession of three

other blank prescription forms from the same

clinic signed by the same doctor and had used

them to get drugs before she met her end.

The US District Court for the Middle Dis-

trict of Georgia ruled the physician and the nurse

practitioner were negligent because their conduct

in signing and handling blank prescription forms

violated the clear letter of state law.

Civil liability was appropriate because it is

foreseeable that illegally pre-signed prescription

forms can be stolen, passed on, forged and used

to obtain controlled substances to be used in an

illicit manner which can cause a person’s death.

However, the physician and nurse practitio-

ner were employees of a Federally funded com-

munity health clinic. Under Federal law the US

Government has had to step in as the defendant

and try to defend their actions as they cannot be

sued individually even if they were negligent

and their negligence caused harm, a legal techni-

cality not available to caregivers in the private

sector or in many state-run healthcare settings.

The Government’s argument will be that the

nurse practitioner’s daughter’s criminal act sup-

plying the form to her friend was an intervening

cause that relieves the Government from liabil-

ity, but the Court has not yet ruled on that issue. Eaton v. US, 2012 WL 6203002 (M.D. Ga., December 12, 2012).