March 1, 2018

Nursing Staff’s Professional Negligence Causes Death of Patient

Avoiding Liability Bulletin – March 1, 2018

Lloyd Thomas, seventy-one, underwent bypass surgery and was hospitalized for eighty-four days after the surgery due to complications. During his hospitalization, he had a feeding tube. He steadily recovered but needed additional rehabilitation so he was transferred to HCRA, a rehabilitation facility.¹

On admission, it was discovered Lloyd had colonized MSRA. Despite this development, he did well at HCRA, got along with staff, had physical therapy and he experienced increased mobility and strength.

However, after twenty-five days at HCRA, his condition “severely deteriorated” and he was taken immediately to a hospital ED. Mr. Thomas died less than twenty-four hours later.

His death certificate indicated that he died of multi-system organ failure secondary to sepsis.

The family filed a liability case against the nursing home, alleging that Mr. Thomas was: “not properly cleaned or repositioned, causing him to develop decubitus ulcers; not properly nourished; not given ordered medications; and not assessed as to his urine output and bodily temperature”.

They also alleged his room was not cleaned and documentation was inadequate in his medical record. Moreover, the allegations included some of the medical record was fabricated.

The trial court entered a judgment on behalf of the family. HCRA appealed that decision. The appellate court had several legal procedural issues and amount of compensation issues to decide, but the one issue this Bulletin is focusing upon is HCRA and its nursing staffs’ negligence that caused the death of Mr. Thomas.

Lloyd was on Lasix while in the nursing home. The Director of Nursing and several physicians at the home testified at the trial. It was essential to monitor the fluid input and output of a patient when on this medication, according to their testimony.

Because Lloyd had a feeding tube and a catheter, it should have been very easy to do so. But, the Director of Nursing admitted the patient’s fluid input and output were not properly charted as required by the nurses’ overall standard of care.¹

Mr. Thomas was also dehydrated and not well nourished when he left the home for the hospital, according to testimony from the Medical Director at the home.

Family testimony revealed that Mr. Thomas had two ulcers on his back, behind his hip bones. His medical record, however, did not indicate anything concerning the existence of, or treatment for, these ulcers.

Yet, when he was rushed to the hospital ED, the ED physicians documented two stage three decubitus ulcers on his back that were “necrotic and oozing blood”. Had Mr. Thomas been re-positioned every two hours, which is the established overall standard of care, a physician expert testified that he would have “expected him to not have any ulcers”.

Mr. Thomas also suffered from diarrhea after his condition began to deteriorate. Family testimony disclosed that when the diarrhea occurred, the family would ring the nurses but they “would not come”. Mr. Thomas was left lying in his feces.

The appellate court held that the evidence and inferences testified to at the trial level fully supported the jury’s verdict in favor of Mr. Lloyd’s family. In responding to the fact that the decubitus ulcers were not noted in Mr. Thomas’ medical record, the court stated: “The fact that these lesions were not noted in the rehab facility’s records does not dispute their existence. Instead, it tends to establish a high degree of conscious indifference by the rehab facility’s nursing staff to the patient’s rights despite awareness of an extreme risk of serious harm”.²

This case is an appalling one, in my opinion. Mr. Thomas had been making progress when admitted to the nursing home, but, due to the lack of nursing care by the nursing staff, his condition deteriorated.

In addition, other team members, physicians and/or administrators included, apparently failed to oversee the patient’s care and failed to intervene to prevent what happened to Mr. Thomas. Their respective testimony, although truthful, cemented liability for HCRA.

Clearly, the nursing staff, including the Director of Nursing, were “indifferent” to Mr. Thomas, both as a patient and as a human being. How they were able to completely ignore him and his required care is beyond comprehension.

Due to the lack of basic and overall nursing care, it would not be a surprise if the Director of Nursing and the nursing staff involved would face disciplinary proceedings before the state board of nursing for unprofessional conduct. They never came close to providing care required by their respective overall standard of care and standards of practice.

What is also interesting in this case is that those who testified about the non-care of Mr. Thomas were employees of the facility and who had a part in his care.

Whether you are practicing in a long-term care facility or other health care setting, this case underscores significant recommendations for your practice. They include:

Provide patient care that is ordered, meet your standards of practice and overall standard of care, and what is required by your legal and ethical duties;
When a patient or family member rings or asks for help for their family member, respond as quickly as possible;
Document all care provided accurately and completely;
Never fabricate or falsify a patient’s medical record;
Testimony from staff members and physicians who care for a patient may easily support a finding of negligence that leads to a patient’s death;
If a Director of Nursing or CNN, ensure that your nursing staff is providing the care required for all patients; and
Regularly review the Code of Ethics for Nurses with Interpretive Statements and incorporate the Code into your everyday practice.

FOOTNOTES

HCRA of Texas, Inc., d/b/a Heartland Health Care Center-Bedford v. Margarie Fay Johntson, Tommy Lloyd Johnston,

and others, No. 2-03-321-CV, Court of Appeals of Texas, Fort Worth, November 3, 2005.

“Decubitus Ulcers, Sepsis: Court Links Patient’s Death To Substandard Nursing Care”, Legal Eagle Eye Newsletter for the Nursing Profession, December 2005, 6.

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).

December 1, 2017

Effective Communication Among Team Members Essential in Avoiding Patient Injury or Death

Avoiding Liability Bulletin – December 1, 2017

Effective communication among nursing staff and other caregivers on the patient care team have been the subject of several previous Bulletins. When I read an article by Susan Shepard, MSN, MA, RN, describing a case of poor communication among team members that resulted in the death of a patient, I thought it would be a good focus of this Bulletin.¹

A 37-year-old female, weighing 192 pounds came to the ED complaining of nausea, vomiting, and numbness of the left side of her face and her left arm. She was also anxious, had difficulty swallowing, had a fever, experienced chills and intermittent abdominal cramps. Prior to her coming to the ED, she also reported a sudden onset of chest pain.²

The patient’s blood pressure was 190/120. She explained she had a history of hypertension but had not taken her medications for it for approximately six months due to financial reasons.

After ordered tests and blood work was completed, the ED doctor diagnosed “dehydration and renal failure”.³ A hospitalist was contacted to admit the patient and patient care orders were written.

Medications were given but no medication for hypertension was ordered by either physician. The hospitalist planned to see the patient the next day since it was late at night and she was not told of any “urgency” to see the patient right away.

Upon admission to the hospital, the ED nurse gave her report to the admitting nurse, telling her that the hospitalist was aware of the patient’s high blood pressure and he would “deal with it in the morning”.

The RN assigned to the patient was “new and inexperienced”. She took the patient’s blood pressure which was 180/100. Shortly thereafter, the patient’s skin was pale, she rated her mid-back pain level as “4 out of 10”, but she said she did not have any chest pain.

The RN contacted the hospitalist for her back pain and she ordered Tylenol. The patient’s blood pressure at this time was 190/100. The RN called the hospitalist 2 hours later concerning the patient’s continued back pain, but there was no documentation indicating that the RN reported the elevated blood pressure.

The patient’s mid-back pain continued. When an LPN who was working with the RN tried to take the patient’s blood pressure, she could not get a reading using a regular BP cuff, so she used a “blood pressure machine”. The machine recorded her blood pressure level as 212/162. The LPN reported this reading to the RN.

The RN, pursuant to hospital policy, reported this reading to the nursing supervisor. The nursing supervisor asked if the patient was “symptomatic” and was told she was not. The doctor was not notified.

At about 6:30 am, the patient was sitting in her bedside chair despite her complaints of chest tightness and back pain earlier that morning.

However, about 20 minutes later, the RN passed the patient’s room and saw her lying on the floor. The patient was unresponsive and her color was dusky. A code was called but the patient died.

The autopsy indicated that the cause of death was “cardiac tamponade caused by acute aortic dissection that had been developing over ‘hours’”.⁴ The patient’s hypertensive cardiovascular disease also contributed to the aortic dissection. Her heart was also enlarged.

Ms. Shepard’s article did not indicate who filed a lawsuit due to the patient’s death, but the allegations included the ED physician and the hospitalist failed to diagnose the aortic dissection. This breach of their duties resulted in delayed treatment and led to the patient’s death.

The allegations against the RN and the nursing supervisor identified their “miscommunication” about the patient’s highly elevated blood pressure and the RN’s “repeated failure” to report the high readings and other symptoms to the hospitalist. This breach of her duties delayed a correct diagnosis by the hospitalist and led to the patient’s death.

Ms. Shepard did not share the outcome of the case in her article. Even so, this brief description of what occurred is indicative of how important accurate, timely, and complete communication is among and between a health care team.

I think the case is so important that you should read the article for additional information about each side’s case and Ms. Shepard’s analysis of what went wrong. The link is listed below in the Footnotes.

From my perspective, the case reveals basic principles to be followed as a health team member when caring for any patient. They include:

When sharing health care information about a patient to another team member, be factual, accurate and complete;
When receiving patient care information, be an active listener;
If information is shared that is unclear, ask for clarification;
Never assume another member of a health care team will act on behalf of the patient or knows of a patient’s condition;
Never care for a patient if you are not capable and competent to care for that patient;
Nursing patient assessment is a legal and ethical obligation for which you will be held accountable;
When a patient’s condition worsens, you must share the factual information and your concern with your supervisor in a timely manner;
If your immediate supervisor does not act on your concerns, you must take them up the “chain of command”; and
All members of a health team are legally accountable for their respective breaches of their duties of care.

FOOTNOTES

Susan Shepard, “A Fatal Case of Miscommunication”, at: https://www.todayshospitalist.com/a-fatal-case-of-miscommunication/ . (The case name or its cite was not included in the article).
Id.
Id.
Id.

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June 19, 2017

Ethics and Law in Nursing: Friends or Foes?

Avoiding Liability Bulletin – June 19, 2017

You might find it difficult to reconcile how ethics and law impact nursing practice. You would not be alone in this feeling.

One approach that is quite interesting describes ethics and law as separate and “distinct” from one another, each with different concerns. This viewpoint is interesting, since often times when an ethical issue exists, resort to the judicial system occurs.1

The following case2 illustrates this model, and the complex interplay of ethics and the law. The case is based in no small part on the American Nurses Association’s Code of Ethics for Nurses3.

James Hitesman, RN, was terminated from his position at Bridgeway Care Center after he contacted various governmental agencies and the media to report his concerns about his employer’s response to high infection rates among patients at the facility. Hitesman believed that his termination was in retaliation for expressing his views to outside sources.

He filed a suit against the employer’s firing under the state’s Conscientious Employee Protection Act (CEPA) which stated that if an employee had a reasonable belief that the employer’s conduct constituted improper quality of patient care, or violated a law or public policy, a suit could be filed. That statute defined “improper quality of patient care” as including a violation of “any professional code of conduct”.4

The jury at the trial level returned a verdict in Hitesman’s favor. The jury’s decision was based on the evidence presented–that the plaintiff examined grounded his reasonable belief that improper quality of care was being given on the American Nurses Association’s Code of Ethics for Nurses, the facility’s Employee Handbook, and the Statement of Residents’ Rights policy.

No damages were awarded to Hitesman so he appealed that part of the verdict and the employer cross appealed its liability verdict.

The appeals court analyzed the specific facts of the case, including Hitesman’s “whistle blowing “conduct surrounding the concerns he raised about the quality of patient care. Hitesman sent several emails about his concerns to administration, he contacted the local Board of Health under a fictitious name, and he contacted the state department of health. Other legal issues involved in the case were also examined.

The appeals court opined that the ANA Code of Ethics or the Statement of Residents’ Rights Policy did not qualify as a law, rule, regulation or declaratory ruling adopted to law or any professional code of ethics as is required by the CEPA.

In so doing, the court pointed out that the ANA Code of Ethics does not apply to the employer, despite it being “incorporated” into the facility’s handbook. Rather, the court continued, its guidelines are for nurses about fulfilling their responsibility as patient advocates. Moreover, it does not express any policy based upon a constitutional provision, statute, rule or regulation passed pursuant to law, not does it provide a standard that clearly delineates ‘acceptable’ versus ‘unacceptable’ conduct.5

Therefore, the court continued, Hitesman’s belief that the facility acted in violation of the ANA Code of Ethics was not objectively reasonable as a matter of law. Nor was his belief objectively reasonable that the Employee Handbook and the Statement of Residents’ Rights were violated.

The trial verdict in Hitesman’s favor was reversed. Hitesman and his employer reached an agreement that he would receive $59,000.00 as compensatory damages, which equaled his lost pay.

This case probably raises more questions than it answers in regard to the relationship between ethics and the law. It becomes clear that there is no bright line between these two concepts being characterized as friends or being characterized as foes.

What it does clearly highlights is the complex interplay between ethics and law. Hitesman truly believed he faced an ethical issue and needed to bring that issue to the attention of the facility and others in order to protect the patients. Yet, the law’s legal “formula” for being able to do so was not proven by Hitesman or the situation in which he attempted to voice his ethical concerns.

If you find yourself in a situation where you are ethically and legally concerned about a patient care situation, you should consider the following:

Immediately consult a nurse attorney or attorney who concentrates his or her practice in employment law and who has represented other “whistle blowers”;
Gather all documents you consider important and bring them to your appointment with the attorney of your choice, including the ANA Code of Ethics and other applicable codes;
Strictly follow the attorney’s instructions as to how and to whom you should raise your concerns with, including those within your facility;
Know that your obligations under the state nurse practice act may require you to report any illegal, unsafe or unprofessional practice to the proper authorities, again with guidance from your attorney; and,
Regardless of any legal outcome by a court or jury, your adherence to the ANA Code of Ethics and other applicable codes is paramount.

FOOTNOTES
1. Margaret Douglas (2001), “Ethics and Nursing Practice”, in Nurses And The Law: A Guide to Applications and Principles by Nancy J. Brent, RN, MS, JD. 2nd Edition. Philadelphia: W.B. Saunders, 34-35, citing Diane Kjervick, “Legal and Ethical Issues: The Connection Between Law and Ethics”, 6 Journal of Professional Nursing (1990), 138-185.
2. Hitesman v.Bridgeway, Inc., 430 N.J. Super. 198 (2013).
3. American Nurses Association (2015). Code for Nurses With Interpretive Statements. Silver Springs, MD: author. (The specific section of the Code relied on by Hitesman was Principle 3.5, “Protection of Patient Health and Safety and Acting on Questionable Practice.)
4. Hitesman, supra note 2.
5. Id.
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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June 1, 2017

Falsification of Patient Care Record Can Lead to Criminal Convictions

Avoiding Liability Bulletin – June 1, 2017

N.B., an LPN, worked at a nursing home and was assigned to care for J.E., a Medicaid patient who suffered from seizures, dementia with behavior disturbances, COPD, and bowel problems. He was bed ridden and “characterized as a medical and behavioral high risk” due to his many health problems.1

J.E.’s wife was not sure her husband was receiving the care and medications he was ordered to have by his physician, so she contacted the FBI and consented to have a covert video surveillance camera installed in her husband’s room. The surveillance was done for 2 months.

The video of N.B.’s care of J.E. clearly showed that she did not administer some of the medications prescribed but documented them as being given. She also failed to perform nursing care she documented as being done. Vital signs were not taken but made-up results were documented. N.B. did not reposition the patient as ordered. She also fabricated several entries in his medical record.2

When the FBI showed N.B. her entries, she responded that the entries were correct.

N.B. was convicted of four counts of forgery at her trial. She appealed that judgment, alleging that the evidence upon which she was convicted was insufficient to prove intent to defraud and prejudice to another, two essential elements to prove forgery. Because her attorney was disqualified from representing her due to a conflict, N.B. alleged she was entitled to a new trial.

The Virginia Court of Appeals upheld the guilty verdict against N.B. on the four counts of forgery because the evidence at the trial level proved her guilt beyond a reasonable doubt. Moreover, the Court opined, the disqualification of N.B.’s attorney was correct and therefore no new trial was required.

The Court evaluated the applicable law in this case and N.B.’s conduct. During the trial, N.B. argued that even if she failed to accurately document what care she did or did not provide, that alone does not prove intent to defraud. She also argued that there was no proof that she “benefited” from her conduct.

The trial record below, however, indicated that N.B. made at least 50 documented false entries and therefore there was evidence of fraudulent intent. N.B.’s conduct was not an isolated event, the Appellate Court held, but was a “pattern of behavior to misrepresent the patient’s treatment and medications.”

As an LPN, N.B. knew of the importance of maintaining accurate documentation. Repercussions of her inaccurate documentation clearly “prejudiced” J.E. because he did not receive important medications and treatments as ordered.

N.B’s argument that she derived no benefit from her conduct was also struck down by the Court. To begin with, she was paid for the time she worked at the nursing home and also benefited from “masking her dereliction” of her duties to the patient.

The Court also discussed the fact that what appears in a patient’s records determines the level of Medicaid reimbursement. As a result, Medicaid was also prejudiced by N.B.’s documentation of care and medications given but not provided.

Along a similar vein, the nursing home was also prejudiced by N.B. not accurately documenting in the patient’s record. It was prejudiced in that her conduct could result in civil penalties, loss of licensure, or closure of the facility.3

N.B.’s argument as to the disqualification of her attorney was also struck down by the Court.

This case is one that bears remembering. Falsification in any record in connection with your nursing practice is unethical and violates many laws. N.B. is now a convicted felon who will most likely be unable to work in the health care field again due to the nature and the numerous incidents of her falsified entries.

The state nurse practice act is another area of liability. N.B. will most probably be required to appear before the board of nursing due to the criminal conviction. In addition, there may be grounds for violating the act or rules itself due to the numerous falsifications in the patient’s record and the non-care she had a duty to provide. Due to this conduct, she could be disciplined by the board, which could include a revocation of her license.

Another interesting point of this case bears underscoring as well. N.B.’s attorney also represented five other indicted employees at the nursing home surrounding the care of J.E. Two of those other employees were granted a plea deal if they cooperated with the prosecution and testified against N.B. and several other staff. Another was granted immunity if he testified against the others. This employees accepted the offer and were willing to testify against N.B.

So, the bottom line from this case is to document honestly, accurately, and completely and to provide the care you are required to provide to your patients.

The video surveillance is this case, along with the forged documentation, helped provide evidence beyond a reasonable doubt of N.B.’s guilt. Although you may never experience being filmed while you provide care, other means exist to prove whether nursing care was provided.

One sure way is when those with whom you work are more than willing to provide whatever details necessary– truthful or otherwise– to maintain their nursing career at the expense of sacrificing yours.

Don’t give them an opportunity to do so.

FOOTNOTES

1. Beshah v. Commonwealth, 725 S.E. 2d 144 (2012), 144.
2. Id., at 145.
3. “Forgery: Nurse Convicted For Falsifying Nursing Documentation” ( June 2012), Legal Eagle Eye Newsletter For The Nursing Profession, 4.

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May 26, 2016

“Willful Refusal” to Care for AIDS Patients

Avoiding Liability Bulletin – November 15, 2014

You may recall that the last Bulletin discussed whether or not a nurse could refuse to care for a patient with the Ebola virus. Although the potential threat of contracting Ebola is “new”, the reactions to its presence and how health care providers responded to, and in some instances, continue to respond to, its threat is reminiscent of the responses to the HIV virus and the AIDS epidemic years ago. In fact, the following case illustrates several of the concepts presented in your last Bulletin.

A certified nursing assistant, who had worked for his employer for approximately 5 ½ months with geriatric patients, was re-assigned to another unit with three patients with AIDS. The nursing assistant informed his employer that he would not work with the AIDS patients because he was afraid he would get the virus and transmit it to his children.¹ The nursing assistant was fired for the refusal and he filed for unemployment compensation.

At the hearing, the nursing assistant testified that: (1) he was not told that there were AIDS patients on the unit he was transferred to; (2) he was not told to use additional precautions in the care of these patients; (3) he had never been specifically instructed in the care of AIDS patients and had only received “Universal Precautions” training; and (4) he was only provided rubber gloves for the treatment of these patients, which he testified that none of the other nursing assistances wore. ²

The hearing referee held that the employer had met its burden of proving that the assistant’s refusal to follow the employer’s “reasonable directive” was willful conduct and therefore denied the assistant any benefits.

The assistant appealed the referee’s decision to the Pennsylvania appeals court, alleging that the ruling that his conduct was willful and therefore disqualified him for unemployment benefits.

The appeals court discussed the established legal definition of willful for purposes of unemployment benefits. The court described it as “the wanton and willful disregard of the employer’s interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from its employees, or negligence which shows culpability, wrongful intent, evil design or the intentional and substantial disregard for the employer’s interest or the employee’s duties and obligations.”³

The court emphasized its past rulings concerning an employee’s refusal to carry out an employer’s reasonable request and held that only when an employer directive threatens that person’s health or safety will a ruling occur that supports an employee’s refusal as not willful misconduct.

The court further emphasized that the assistant did receive Universal Precautions training and cited its contents as including the routine use of gloves, the transmission of the virus, the use of Personal Protective Equipment (PPE), and how to dispose of infectious waste. In addition, the training course emphasized that Universal Precautions should be used with every patient, since a health care worker could not know for sure if a patient had AIDS.

Insofar as the assistant’s claim that no face masks, aprons or protective eye wear were provided, the court held that the duties he had in working with the AIDS patients were such that these specific PPEs were not necessary (e.g., he was not exposed to droplets of blood or splashes of blood). As the employer indicated, only rubber gloves were required to be used.

The court opined that the assistant’s refusal to care for the AIDS patients was based on “unnecessary fears and misconceptions” about AIDS. This was a “subjective” belief only and, as such, does not constitute good cause for actions that would otherwise disqualify him from unemployment compensation. ⁴

The court affirmed the referee’s denial of unemployment benefits for the assistant.

Despite this case dealing with a denial of a claim for unemployment compensation and despite the year in which it was decided, it is an interesting one that has lasting principles that can be applied today in any case dealing with a refusal to care for a patient with a particular disease. One of those principles is that your subjective belief that a particular virus may be harmful to you or your family alone will not justify a refusal to care for a patient.

There must be clear support for such a refusal, such as inadequate or no PPE, a lack of training in the use of PPE, and not following guidelines from the CDC and state agencies. As was discussed in the last Bulletin, such a refusal is not only indefensible legally, it is also indefensible ethically.

A second long-standing principle is found in the dissenting opinion from one of the appellate judges. The nursing assistant testified that the employer told him he only needed rubber gloves to care for the AIDS patients. The dissenting judge emphasized that the policy in the nursing home required all PPE to be worn and all precautions to be followed with all patients, including AIDS patients. This judge would have ruled for the nursing assistant.

Although a dissent to the majority opinion, these points are well worth noting. If you are to follow CDC guidelines for Ebola, AIDS or any other infectious viruses, you must, and your employer must, expect that the guidelines are followed in full. In addition, it is the employer’s duty to make available the protective gear and training that you need.

FOOTNOTES

1. Dougherty v. Unemployment Compensation Board of Review, 686 A. 2d 53 (1996), 54.

2. Id.

3. Id.

4. Id., at 55.

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

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Nursing Care and Inmates

Avoiding Liability Bulletin – December 1, 2014

If you are a governmental employee of a federal or state correctional institution, you may enjoy certain immunities against a lawsuit being filed against you as a named defendant when an inmate alleges your nursing care was lacking. As you know, inmates do not have a right to boutique care or outstanding care. Rather, they have a right to “adequate” medical care. What you may not know is that you may be sued for nursing care given to a inmate of a federal or state prison or jail when the inmate is brought to your ER—not the prison infirmary– and your care is non-existent.

In a Texas case¹ ,an inmate woke up in his cell in a pool of blood and asked for care. The inmate was sent to an outside hospital ER, where the ER nurse placed him on oxygen and began an IV. Despite the inmate’s apparent weakness due to the loss of blood, the nurse made him walk from one bed to another and then left him alone for some time. When she returned, she told the inmate “there was nothing wrong” with him, discontinued the IV and oxygen and he was discharged without being evaluated by a physician.²

The inmate returned to the prison, was sent to another hospital where he was diagnosed with a “serious case of bleeding ulcers”. The inmate sued both the private hospital where the ER was located and the ER nurse who saw him in the ER.

The Texas District Court for the Southern District of Texas held that the inmate could sue both the hospital and the nurse. Inmates have a U.S. Constitutional protection against cruel and unusual punishment under the 8^th Amendment and supported in the United States Supreme Court decision,Estelle v. Gamble.³When an inmate is denied adequate medical care, it is called “deliberate indifference”, a violation of the 8^th Amendment’s prohibition against cruel and unusual punishment. Therefore, the Court opined, if health care providers within the prison can be sued for deliberate indifference, a private health care provider who works for an institution that contracts with the correctional institution to provide care to inmates can be sued as well.

Deliberate indifference can occur in many ways other than just the example in the case under discussion. Other examples of purposely avoiding a “serious medical need” of an inmate include ignoring an obvious condition, delaying treatment, interfering with access to treatment, and failing to provide treatment for diagnosed conditions.^4,5 It is fairly clear that at the very least the first three examples nicely describe the nurse’s conduct in this case.

You may think that the law is “on the inmate’s side” when it comes to alleging deliberate indifference by you or others. However, it is not as easy as it may at first sound. The US Supreme Court, in a 1994 case⁶set the test for what constitutes deliberate indifference:

There must be an excessive risk of harm to the inmate, based on the specific facts of each case;
Actual knowledge by prison officials of the risk of harm or, at least the obviousness of the risk of harm; and
A conscious disregard of the risk of harm an inmate claims.⁷

The implications of this case for you are numerous, regardless of whether you work in a correctional facility or work with inmates when they are sent to your private facility:

Don’t assume you enjoy immunity from a suit by an inmate;
Don’t willfully or consciously disregard an inmate’s health complaints;
Don’t conduct yourself as is described in the examples given of deliberate indifference;
At a minimum, evaluate the inmates complaints;
When an inmate has a known condition, you must act with “adequate” medical care, based on the situation;
Never ignore an inmate’s voiced concerns;
Document any interventions you do undertake and notify those who need to be notified in the system in which you work; and
Remember your ethical responsibilities to provide adequate and humane care to all persons.

FOOTNOTES

1. Carter v. Benavides, 2007 WL 676686 (S.D. Texas, March 1, 2007).

2. “Constitutional Rights: Inmate Can Sue Private Hospital Nurse”, ( April 2007) Legal Eagle Eye Newsletter For The Nursing Profession. Available at www.nursinglaw.com (subscription required).

3. 429 U.S. 97 (1976).

4. “Your Right To Adequate Medical Care” (2009), A Jail House Lawyer’s Manual, Columbia Human Rights Law Review. Available at: https://www.scribd.com/document/132500388/Jailhouse-Law-Book. Accessed 11/30/14;

5. Brandi Harper (2010), “Deliberate Indifference”. Available at: https://wagnerpelayes.wordpress.com/2010/11/15/deliberate-indifference/. Accessed 11/30/14.

6. Farmer v. Brennan, 511 U.S. 825 (1994).

7. “Deliberate Indifference”, supra note 5.

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