May 26, 2016

What if I Object to a Patient Care Situation?

Avoiding Liability Bulletin – May 2014

You have probably been in at least one patient care situation that made you uncomfortable for a particular reason or one in which you did not want to participate. Not knowing what to do about your discomfort, you probably kept quiet and provided the nursing care required of you in the situation.

Afterward, you may have felt distressed and also angry at yourself for not speaking up about your feelings concerning the patient care situation at the time. You may not have any previous information to help guide you in the situation. However, federal laws and in some states, a right of conscience act or statute, may be of some help to you when you face another patient care situation that you object to.

On the federal level, there are a number of health care provider conscience protection laws. Although a thorough discussion of each of them is beyond the scope of this Bulletin, they include Section 245 of the Public Health Service Act, and several amendments to the United States Code (U.S.C.).¹ Basically, these laws provide protection for health care workers who have religious beliefs or a moral objection to performing or assisting in a sterilization or abortion.²

A federal employer or a state or local governmental employer receiving federal financial funds cannot discriminate against the health care provider in terms of employment, promotion, termination of the health care worker’s position or the extension of staff privileges when such a refusal occurs based on religious beliefs or a moral objection. The Office of Civil Rights, U.S. Department of Health and Human Services enforces the laws.³

Like its federal counterpart, state “right of conscience” laws provide protection from discrimination by an employer when an employee refuses to participate in a procedure that is contrary to his or her religious beliefs. These state laws can vary.

In Illinois, for example, both public and private employers are prohibited from discriminating against an employee, including hiring, promotion or terminating employment, whose objection is based on the health care provider’s “conscience”. Conscience is defined as sincerely held moral convictions “from a belief in and relation to God”, but if not so based, arising from a “parallel place to that filled by God among adherents to religious faiths”. ⁴

Moreover, in Illinois, the act provides protection for an objection to any patient procedure, not just to sterilization or abortion.

Although the laws briefly presented here are controversial and continue to raise issues, from employers, health care providers, and lawyers, and particularly so recently in regard to the Affordable Care Act, you need to be aware that you may have protection in your workplace if you believe you cannot participate in a patient procedure that violates your religious or moral convictions. So, consider the following:

Review your state right of conscience act, if one exists;
If you work in a public facility or one that receives funds from the Federal government, know the applicable laws and your rights under them;
Review your employer’s policy on employees’ objections to patient care situations;
Carefully consider how to handle your objection to both current and future patient care issues;
Follow the guidelines in your applicable state law, applicable federal laws, and employer policies as to your rights;
Consider discussing your concerns during the application and hiring process rather than waiting for a situation to arise and then stating your objections for the first time;
Never abandon a patient who needs your care, particularly in an emergency;
Do not apply for a position at a hospital that you know regularly performs patient procedures that you object to; and
Seek an opinion from a nurse attorney or attorney in relation to any moral or religious objections to patient care issues and how best to handle your concerns in order to protect your rights.

FOOTNOTES

1. Enforcement of the Federal Health Care Provider Conscience Protection Laws

(no date given). Available at http://www.hhs.gov/ocr/civilrights/provider_conscience_ppt.pdf . Accessed 4/15/14.

2. Id.

3. The Department of Health and Human Services Office of Civil Rights has a Civil Rights Discrimination Complaint Form Package on its website at www.hhs.gov/ocr/civilrights/complaints/index.html .

4. Health Care Right of Conscience Act , 745 ILCS 73 (e) (1998).

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Circulating Nurse Has Duty to Ensure Surgery Done on the Correct Anatomical Site

Avoiding Liability Bulletin – 2013

Although there were many issues on appeal to the Arkansas Supreme Court in a 2012 case out of Arkansas¹, the focus of the case for this Bulletin is on the circulating nurse’s negligence which contributed to surgery being done on the wrong side of a 15- year-old patient’s brain.

The patient was scheduled to have elective brain surgery on the right side of his brain in order to excise a right temporal lobe lesion to eliminate epileptic seizures occurring on the right side of the patient’s brain². The procedure is known as a selective amygdale hippocampectomy (SAH). A “timeout” occurred before the surgery, which is to serve as a final verification of the correct procedure site. It included the surgeon, the anesthesiologist, a scrub nurse, and the circulating nurse.

However, during the timeout before the surgery, the procedure was not designated as a sided procedure. Instead, all the relevant paperwork listed it as a “crainiotomy for SAH”.³

The procedure was begun by the surgeon on the left side of the patient’s brain where he cut through the skull, penetrated the dura, and removed significant portions of the left amygdala, hippocampus and other tissue before it was discovered that the surgeon was operating on the wrong side of the brain. ⁴ The left side wound was closed and the procedure began on the correct side of the patient’s brain, the right side.

The family was informed of the mistake but it was characterized as a minor and inconsequential error. Others in the hospital were told the same thing. The patient was discharged home after a short stay in the hospital and continued with his education, graduating from high school. But his parents noticed that he was not the same as he was before the surgery. In fact, neurological exams revealed that he was brain damaged and the patient was admitted to an assisted living facility for brain damaged individuals.⁵

The parents, who were also co-conservators of their son, filed a lawsuit against the hospital, the surgeon and others. A settlement occurred with all of the defendants but the hospital and the case went to trial. The circulating nurse’s conduct, an employee of the hospital, was an essential focus at trial.

At the trial, in addition to testifying about the timeout, the circulating nurse also admitted that she did not know what a SAH was until after the surgery. She further testified that even if she knew that the surgeon was operating on the wrong side of the patient’s brain, she would not have been able to stop the surgery because he was the surgeon.⁶She also testified that she did not make a note in the operative report that the wrong-sided surgery took place because she only documented what the surgeon told her to document.

The Vice President of Patient Care Services testified at the trial about the hospital’s policy during timeouts. She indicated that during the timeout, which was to confirm the correct procedural site, the circulating nurse on the team is to have three documents available prior to the timeout: the consent form, the preoperative history and physical, and the schedule of the procedure. Moreoever, she testified that it was the nurse’s responsibility to record in detail that a wrong –sided surgery took place.⁶

A nurse practitioner in neurosurgery testified as an expert for the plaintiffs that the circulating nurse should have known whether this type of surgery was to be performed on the right or left side of the brain. This type of surgery, she continued, cannot be performed “midline”. Because the documents used in the timeout did not specify which side the surgery was to occur, the circulating nurse’s conduct did not meet the standard of care, as it was his/her duty to make sure any surgery, but certainly brain surgery, is not performed on the wrong side “of anything”.⁷ The nurse expert also testified that not documenting the wrong-sided surgery affected the young patient’s care after the surgery.

The trail jury awarded a $20 million verdict for the plaintiffs, but this was amount was reduced through various legal challenges to $11 million. The Supreme Court of Arkansas upheld the $11 million verdict. Despite the reduction, the circulating nurse’s professional negligence added, in part, to the patient’s injury.

This case clearly illustrates what is known in the PeriOperative setting: the circulating nurse’s role in essential in the surgical process and extremely essential in ensuring the safety and well-being of the patient. The circulating nurse must:

Know facility policy and his/her role as a circulating nurse;
Utilize timeouts as they are intended to be used;
Analyze any and all documents utilized for each surgery and speak up when any form is not complete, accurate, and factual;
When observing something “wrong” in the surgical process, or when hospital procedures are not followed, notify all who need to be notified, documenting what is observed and who was notified;
Remember that it is the circulating nurse’s overall duty to protect the surgical patient from any risk of harm and take whatever action is needed to avoid that risk of harm;
Know each procedure you are participating in as a circulating nurse;
Document accurately, completely, and factually all that you are responsible for as the circulating nurse;
As an employee who is involved in a lawsuit, keep in mind that your employer can testify as to what you did not do pursuant to policy (as in this case) in order to make its liability for the injury appear less under the theory of respondeat superior ; and
Always remember that your license as a registered nurse requires you to legally exercise independent judgment and function in your role without bending to limitations or instructions forced upon you by others or by their title or role in the hospital setting.

FOOTNOTES

1. Proassurance Indemnity Company v. Pemal and Kenny Metheny, 2012 Ark. 461.

2. Id., at 2 (page number of printout of case).

3. Id.

4. Id., at 3 (page number of printout of case).

5. Id.

6. Id., at 8 (page number of printout of case).

7. Id.

GENERAL REFERENCE

Legal Eagle Eye Newsletter For The Nursing Profession, Operating Room: Surgical Error Blamed, In Part, On Circulating Nurse’s Negligence 21(1), 2013, 1.

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What is Precedent?

Avoiding Liability Bulletin – June 2014

In the legal world, the term precedent is an extremely important one. Defined as “a decided case that furnishes a basis for determining later cases involving similar facts or issues” ¹ , it aids your lawyer to analyze the legal principle or principles upon which the case was decided and compare it/them to your case and predict what decision should occur in your particular lawsuit.

Precedent has also been called “binding precedent”. Because all subsequent decisions must follow the initial decision, all higher courts in the same jurisdiction (e.g., state appellate courts) are bound by the lower court holding (e.g., trial court). In addition, if a federal trial court renders a decision that becomes binding, all higher federal courts in that jurisdiction must follow the holding as well.

If you or the other party is unhappy with a decision based on prior precedent, the party can appeal to the higher court for a review of the decision. The appeal allows your attorney to challenge the fact that your case is not the same or similar as those cases decided earlier. The higher court may uphold the decision of the trial court or may overturn the decision. If the court overturns the decision, “new law” is made.

Sometimes lawyers use what is called “persuasive precedent”. Persuasive precedent is a case decision that is not “binding” but one that should be given consideration, thoughtful analysis and application to the case before the court². As an example, if a matter before a court in one state has not yet ruled on a legal principle, but another or several other state courts have done so, a lawyer might argue those decisions should apply in the instant case in an attempt to have the court his or her case make the same determination.

Precedential decisions are important for you as a nursing professional. As an example, if you are named in a lawsuit that alleges you were professionally negligent, and the plaintiff’s (patient’s) attorney alleges your conduct and it is contrary to precedential decisions in your state concerning what is considered professional negligence of a nurse, your attorney can argue, among other points, that there are no binding precedential decisions in the state and therefore the case against you should not apply to you. Conversely, if there were binding precedential decisions that mirror your conduct that resulted in a verdict against other nurse defendants, the court will most probably allow the case to proceed and a decision against you would be quite possible.

When a case is filed against you alleging professional negligence, one of the first things your attorney will do is to review professional negligence case decisions in your state that are similar to yours in order to determine if there is binding precedent. Likewise, your attorney will also look to some other states to determine if the issue before the court in your case has been decided in other states, and although non-binding holdings, might be used to argue that the case should be dismissed.

FOOTNOTES

Bryan A. Garner, Editor (1999).Black’s Law Dictionary. 8^th Edition. St. Paul, MN: West, 1214-1215.
Id.

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What is Personal Jurisdiction?

Avoiding Liability Bulletin

Jurisdiction is generally defined as the authority by which a court recognizes and decides cases.¹ The regulations defining the many types of jurisdiction are established by state and federal constitutions and statutes respectively. These regulations set out what cases can be heard by what courts and which court is the best forum for a particular matter (e.g., family court, mental health court). Jurisdiction can be applied to one court (e.g., the state criminal court) or to the specific judicial system as a whole (e.g., the federal court system).²

One type of jurisdiction that is important for you to be knowledgeable about is personal jurisdiction. Personal jurisdiction is a court’s power to bring an individual into the judicial process. It is jurisdiction over the individual’s person or personal rights.³Both federal and state courts’ authority includes personal jurisdiction. It is also known as in personam jurisdiction.⁴

Personal jurisdiction is extremely important to you for a number of reasons. First, no court can take action against you unless personal jurisdiction over you exists. Suppose that you are an RN licensed in several states but you currently only practice in Wyoming and have done so for several years. You get notice that a professional negligence suit has been filed in California naming you as a defendant, one of the states you are licensed in, but in which you have not practiced for three years. The court in California has no personal jurisdiction over you in this suit in Wyoming.

Or, it may be that a suit is filed in Wyoming also naming you as a defendant. However, the suit, which should have been filed within two (2) years of the injury the plaintiff (patient) is claiming, has been filed four (4) years after the injury. The Wyoming court has no personal jurisdiction over you because its power to hear the case has expired.

In the first instance, the attorney for the plaintiff can attempt to open the case in Wyoming so that the Wyoming court has personal jurisdiction and then serve you with the summons and complaint for the California case. If that were to occur, the court system—state courts—would have personal jurisdiction over you and you would have to defend yourself in the California case. This is a costly endeavor for the plaintiff and for you but it can be done.

In the second instance, your attorney in Wyoming could appear before the court on your behalf, with a special and limited appearance (or a similar special motion), informing the court that there is no personal jurisdiction over you because the cause of action was not timely filed. This often happens as well and is usually successful if no legal exceptions allow the later filing.

Personal jurisdiction of any court over you is something that you cannot assume until you have spoken with your attorney who can advise you about this legal principle and what course of action or actions can be taken. Therefore, if you receive a summons and complaint, either by mail or served upon you in person, you should read it carefully and contact your attorney before speaking with anyone about the summons and complaint. Your attorney will then advise you of how he or she will handle the matter.

Do not, under any circumstances, contact the attorney who filed the matter and sent you the summons and complaint, or speak with the plaintiff or his or her family, or speak to your former employer. In addition, never appear in a court proceeding about the matter. Appearing in court and saying anything about the current case automatically meets the requirement of personal jurisdiction. Once personal jurisdiction exists, the matter can legally proceed against you.

It bears repeating in relation to the issue of personal jurisdiction and to relation to receiving any summons and complaint: immediately contact your attorney or your insurance agent only.

FOOTNOTES:

1. Brian A. Garner, Editor (2004). Black’s Law Dictionary. 8^th Edition. St. Paul, MN: Thomson West, 867.

2. Lawrence Baum (2013). American Courts: Process and Policy. 7^th Edition. Boston, MA: Wadsworth, Chapter 2.

3. Black’s Law Dictionary, supra note 1, at 870.

4. Id.

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Delegation of Medical Administration

Avoiding Liability Bulletin

Delegation of patient care is a constant requirement when caring for patients. Doing so within the parameters of the “Five Rights of Delegation” is essential, as a nurse in Michigan learned the hard way.

In Varughese v. William Beaumont Hospital ¹, a 59 year old Indian nurse on a TB isolation unit needed to administer medications to a particular patient who was being transferred from the unit to another hospital department for a diagnostic procedure.

When the nurse reached the patient’s room, the patient transporter was waiting for her. She realized she did not have an isolation mask required to enter the patient’s room. Instead of going to get the mask, she asked the patient transporter, who was not a doctor, nurse or UAP but who was wearing a mask, to take the medications into the patient and give them to the patient.

The patient transporter did not want to carry out the nurse’s request, but at her insistence and with her assurance that it would be OK because she would be watching him do so on a video monitor, he did administer the medications.² The transporter later reported the incident to his supervisor.

Despite a glowing evaluation a few days after this incident occurred, hospital administration learned of the medication incident, and she was terminated for a violation of hospital policy which amounted to gross neglect.³

The nurse attempted to change the termination to a resignation but was not successful. She also requested a copy of her personnel file and a copy of employee benefits. Shortly thereafter, she filed a grievance with the hospital which stated that its non-acceptance of her resignation in lieu of termination was in retaliation for asking for her personnel file and a copy of her employee benefits. These requests were also denied.⁴

The nurse then filed an age and national origin discrimination suit against the hospital under Title VII, The Age Discrimination in Employment Act (ADEA) and Michigan antidiscrimination laws due to her termination. The hospital filed a summary judgment motion, stating that the undisputed facts showed no discrimination or retaliation, and that the firing was justified by hospital policy.

After a hearing was held on that motion, the federal district court granted the hospital’s motion, holding that it was entitled to the judgment as a matter of law. No discrimination or retaliation occurred. The court dismissed the nurse’s case.

In its opinion, the court discusses at length the hospital policy and the Michigan Nurse Practice Act and Regulations. The hospital policy clearly stated that only physicians, dentists, registered nurses, licensed practical nurses, nursing students and respiratory therapists (the latter two under supervision) are authorized to administer medications. In addition, procedural requirements are required (e.g., verify the medication is stable, check expiration date, know the medication being administered), and when administering a medication, verify the patient’s identity using at least two patient identifiers.⁵

The court also emphasized that the Michigan Board of Nursing’s Rule on Delegation⁶ specifically requires, among other things, that before delegating any nursing duty, the nurse must “determine the qualifications of the delegatee” and “determine whether the delegatee has the necessary knowledge and skills for the acts, functions or tasks to be carried out safely and completely”.⁷ In her deposition, the nurse admitted she did not ask any questions of the transporter in order to determine his experience with giving medications, did not ask him if he was comfortable giving the medications, and also stated; “[a]nybody can give a couple [of] pills to a patient or anybody else”, and “to administer a few pills to a patient won’t take too much task”.⁸

This case illustrates the extreme importance of never letting a “short cut” result in a breach of your professional responsibilities as a licensed nurse. As a nurse licensee, you are always accountable and responsible for your actions. Delegation is an essential part of nursing practice and must be done in accordance with hospital policy, the state nurse practice act and rules, and the meticulous exercise of professional judgment.

FOOTNOTES

1. 2014 Westlaw 3361897 (E.D. Michigan, July 8, 2014).

2. “Improper Delegation of Nursing Responsibility: Discrimination Lawsuit Dismissed”( August 2014), 22(8) Legal Eagle Eye Newsletter For The Nursing Profession , 1.

3. Varughese v. William Beaumont Hospital, supra note 1, 2-4.

4. Id., at 3-5.

5. Id., at 2.

6. Id., at 4-5; Michigan Board of Nursing General Rules, “Delegation”, Rule 338.10104(1)(a)-(e), (2).

7. Id.

8. Id., at 4-5.

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In Memory of A.D.*

Avoiding Liability Bulletin

I recently received information of the passing of a dear colleague and friend with whom I taught years and years ago in a nursing educational program at an eastern university. She was quite a personality: feisty, extremely bright, fun-loving and caring, not only of friends and family, but students and patients alike.

We team taught in this nursing educational program and it was really an exciting and wonderful experience for me. A.D. helped me develop my style of teaching and was always ready to provide more challenges and adventures for me as I developed as a faculty member.

Unfortunately, A.D’s health did not keep up with her energetic love of life. After she returned to the country of her birth and initial licensure as a nurse, she was diagnosed with a rare neurologic disease and slowly, but surely, deteriorated.

The last years of her life were in a nursing home, taken care of by individuals who may have tried to provide good care to her, but from A.D.’s perspective, the care was far from “good.” I was appalled at some of the stories she e-mailed me about her nursing care. Minimal things, such as a bath, were a “joke,” in her words. Other care was minimal or forgotten. Her small requests for help with this or that, or for a medication, went unheeded. Since I was not with her, nor could visit her, there was little I could do to change those conditions.

I am sharing this with you because I want to emphasize to those of you who work in long term care-or in any setting, really– that the individuals to whom you provide care are human beings. They also most often come to the facility with a life once lived in a much fuller, healthier, and happier way.

As you know, legally providing poor nursing care can be problematic and if an injury or death is alleged to be due to your poor nursing care, such as decubiti, a fall, or the neglect of voiced needs, you may be held responsible for that conduct. Likewise, a failure to heed a resident’s need for pain medication is negligent if the patient suffers injury or death and that is alleged by the patient’s family in a lawsuit.

In one such lawsuit¹ an RN failed to fully tell the patient’s physician of the nature and severity of the patient’s abdominal pain that was due to an undiagnosed infection and intestinal necrosis. The patient died, the family filed a wrongful death suit, and the jury verdict in favor of the family was affirmed on appeal.

In another case², an RN didn’t follow the plan of care established for the administration of a dying patient’s narcotic medication, including not administering adequate amounts of the liquid narcotic ordered for the patient. The patient’s increased pain and suffering was included in the allegations of professional negligence in the suit against the RN (named as a defendant in the suit) and the facility that employed here. The verdict against facility and RN was upheld on appeal.

I am hopeful that something can be gained by A.D.’s death, if nothing else than reminding you to continue to be respectful to every client with whom you provide nursing care. I think she would be somewhat pleased that her passing helped you to continue that approach with patients, teacher that she was.

A.D., like all patients who suffer from one ailment or another, did not deserve this ending to her life. Providing excellent nursing care to all, with “..compassion and respect for the inherent dignity, worth and uniqueness of each individual”³ is a challenge you must not ignore.

FOOTNOTES

1. Mobile Infirmary Association v. Tyler, 981 So. 2d 1077 (2007).

2. American Nurses Association (2001). Code of Ethics For Nurses With Interpretive Statements. Silver Spring, MD: Nurses Books.org, Provision 1.

3. Tolliver v. VNA, Midlands, No. 5-08-357 (Supreme Court of Nebraska 2009).

*Not her real initials.

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