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Summary: With a proper Informed Consent obtained, it is accepted that a patient is aware of potential risks & complications prior to a procedure. In this case, following a cervical myelogram, a patient developed seizures and suffered an injury. The physician would blame the nursing staff for causing an "increased risk" by not following procedures.
"A myelogram is a specialized x-ray of the spine used to determine the presence of compression of the spinal canal (the cause of pain or numbness in the back, neck, arms or legs). Using a radio-opaque dye, one that shows up on x-rays, several segments of the spine can be studied.
The most common side effect of a myelogram procedure is headache, which may begin within several hours or up to several days afterwards. This symptom usually is caused by a change in cerebrospinal fluid pressure after the spinal tap - not by a reaction to the dye. The headache may be combined with nausea or dizziness, or with tightness in the shoulders, base of neck, or lower back."
The myelogram being an invasive procedure with associated risks, required an informed consent.
Seizure activity was one of the "Risks" explained to the patient in the informed consent. Shortly following the procedure, the patient had a Grand Mal seizure. During this episode the patient's shoulder would become dislocated.
"The following are the recommended first aid procedures for someone having a generalized tonic-clonic (grand mal) seizure:
Cushion the head with a pillow or soft item of clothing
Loosen tight neckwear
Clear the area of sharp objects
Turn the person on his/her side
Do not put anything in his/her mouth or attempt to make the person drink
Look for appropriate medical I.D.
Do not hold the person down or restrict their movements; the seizure cannot be stopped and must end naturally
Stay with the person until the seizure ends and time the seizure, if possible"3
When the patient awoke, his primary physician notified him of the event. The doctor stated that the seizure might have been due to a number of factors. These included the spinal injury, manipulation during the procedure, and the injection of contrast dye during procedure. He did not rule out negligence on the part of the physician performing the cervical myelogram.
The patient sued the physician performing the myelogram for negligence. The patient alleged that he had suffered additional injuries and would require even greater treatment now due to negligence on the part of the physician.
The patient initially considered only negligence arising from the actions or inactions of the physician doing the procedure. Neither the hospital nor the nursing staff were named in the initial action.
By the time of the physician's depositions, the statute of limitations for initiation of further actions had run out.
The physician in response to the claim, denied that the seizures were due to any of his actions. He instead blamed the hospital and nursing staff for "increasing the risk" of seizures post procedure.
Specifically, he stated that the protocol post-myelography called for the patient's head to be raised. He further testified that he noted the patient's head to be "flat" during the time period in question.
In the initial trial, the court held that the statute of limitations had already passed from the time of the initial event. It denied the patient's motion to name the hospital and nursing staff. It made summary judgement on the case in favor of the defendants.
The patient appealed.
Questions to be answered:
1. Could the physician through his testimony, shift the alleged claim of negligence from himself to the nursing staff and hospital.
2. Could the nursing staff be held liable for the seizure activity for allegedly not following post-procedure protocols?
It is common for physicians to attempt to scapegoat or shift blame for unfavorable outcomes to nurses, other physicians and members of the healthcare team.
The targeting of nurses and our "scapegoatability" is enhanced by the facts that nurses spend the largest amount of time with the patient, frequently work short-staffed, and are responsible for an incredible amount of documentation.
It is more likely that the single error or omission of documentation needed to make a case will be found in the nursing records.
Even if the physician suspects that no negligence on the part of the nurse will be found, there is little to prevent the nurse from being blamed regardless. Close to 90% of lawsuits against nurses are dismissed in court.
In this case, the charting and documentation of the event would need to be examined closely. If in the physician's progress notes and in the nurse's notes, the head of the patient was documented as "flat" then the physician's claim of nursing negligence may hold merit. In this case, the findings may not entirely release the physician from liability. They might reduce the amount the doctor's malpractice insurance company would need to pay out in an award or settlement.
If one set of records documented "head flat" and another documented "head elevated," the matter may not be as clear cut.
The prudent nurse in this case would have documented clearly in the nurses' notes the position of the head following the myelogram, and before, during and after the seizure activity occurred.
The court in considering the appeal noted that the nurses alleged part in the incident was not one normally considered.
It took into consideration that the possibility of the nurse's involvement had not been made known to the patient until "after" the statute had run out. It became a possibility at the time of the physician's deposition. The appeals court would consider the statute of limitations on the actions of the nursing staff to "begin" at the date of the deposition. This would allow the nursing staff and hospital to be added to the lawsuit.
It would reverse the ruling of the lower court and bring the issue to trial.
This example highlights the need for the staff nurse to follow and document protocols to the letter. It is critical that the practicing nurse chart defensively and in anticipation that her chart may be used in court.
When a patient returns from a procedure, be it the Operating Room or a Cardiac Catheterization, the nurse is responsible from that point on. As soon as report is received, the nurse is responsible for noting the post-operative orders, seeing that vital signs are taken per protocol and that a thorough assessment is completed.
It is a huge responsibility to the nurse. It can become difficult to shoulder this workload when on a typical Medical/Surgical floor the typical patient load may be up to ten patients or more per nurse.
Failure to carry out orders and protocols as defined will leave the nurse open to claims of negligence and liability. Justified or not, they can and will continue to be made against nurses simply because they can be.
The nurse's best defense against this possibility is to document nursing actions as completely and thoroughly as possible. It is to the advantage of a nurse to document short staffing and unsafe patient loads as well. State Nursing Associations and Nurse Advocacy groups have made "Assignment Despite Objection" forms available online and from resource catalogs.
State Nurse Practice Acts specify that it is illegal to take a patient load that you feel is unsafe, yet this occurs on a daily basis due to short staffing.
"The American Nurses Association (ANA) believes that nurses should reject any assignment that puts patients or themselves in serious, immediate jeopardy. ANA supports the nurses obligation to reject an assignment in these situations even where there is not a specific legal protection for rejecting such an assignment. The professional obligations of the nurse to safeguard clients are grounded in the ethical norms of the profession, the Standards of Clinical Nursing Practice and state nurse practice acts."
The nursing associations have been slow to act on this issue nationally. The actions that have been initiated have been on the state level only.
To date, only select states have enacted legislation to protect nurses who chose to refuse assignments. Even though they are acting in the best interests of the patient, there is no protection afforded by law. Employer's have carte blanche to retaliate against any individual nurse who advocates for patient safety.
It has come to the point where "short staffing" is being mentioned in Press Ganey Patient Satisfaction reports. It has been made clear in some institutions that any mention of "short staffing" to a patient or family member will result in automatic termination of that employee. We are being forbidden by our employers to let healthcare consumers and the public know that an all to obvious staffing shortage is affecting the care we can give our patients.
"What options exist for the staff nurse who finds themself in this situation? You could complain, indeed, you could refuse. Even though the nurse's license supports the right to refuse assignment to unsafe duty assignments, it is important to understand that the employer could discipline, or even fire, the nurse. In general, labor and employment laws will not protect employees who have been insubordinate. Other options exist such as completing an "assignment despite objection" form (ADO's) available through state nurses associations (SNAs) or the American Nurses Association. The ADO documents the nurse's concerns about the potentially unsafe conditions."5
See the Florence Project Website for a sample at:
Is it appropriate that a nurse told by administration to "do the best you can" in a short staffing situation will lose the right to practice for accepting the assignment? In the eyes of the law it is appropriate when patient safety or quality of care is jeopardized.
No allowance is made for undocumented "short staffing" situations in a court of law. Even in documented situations, little protections are offered against employer retaliation.
It places the staff nurse in a difficult and uncomfortable situation. It is a widespread problem that is prompting many staff nurses to leave the beside and/or cut down their hours. It is a situation that is fueling a self-induced nursing shortage. It is a situation that is clearly making hospitals dangerous places to be.
For patients, less staff means less care, means more complications, more medication errors and increased morbidity & mortality. More patients will die that could have lived.
For nurses, less staff means those left will face even greater short-staffing and higher patient loads, new nurses will not work long under dangerous/hostile conditions (they will leave the field), aware of work conditions less students will (are) enroll in nursing schools. Nurses left will burn out, the shortage will persist.
Without rapid action on the part of legislators and consumer groups, nursing "burnout" and quality of patient care will soon reach dangerous levels. There is no better resource for a sick patient than competent licensed nursing care.
It would seem that hospital administrators and the health maintenance organizations are more concerned with quality profits, than quality patient care or a safe work environment for their employees. This is evident in their further cutbacks of nursing staff continuing to this day concurrently with the replacement of nurses with unlicensed assistive personnel.
Related Link Sections:
Related Nursing Malpractice Cases:
August 15, 1999: Violent Psychiatric Patient Attacks Nurse, No Legal Recourse Against Facility or Psychiatrist?
Charleston v. Larson, 696 N.E. 2d 793 – IL 1998
Summary: It would seem absurd, that if a physician admits and facility assigns a nurse to care for a known violent patient, that it has no legal obligation to protect that nurse against violence. In this case, a psychiatric patient sought admission to facility. On admission, he threatened to attack a nurse. When the patient would follow through on his threat, the nurse was denied legal recourse against the psychiatrist who could have taken precautions against the attack.
August 8, 1999: Pregnant Prison Inmate Complains of Miscarriage, Corrections Nurse On Duty Ignores Symptoms?
Ferris v. County of Kennebec, 44 5. Supp.2d 62 –ME (1999)
Summary: Nursing assessment skills are one of our most valuable assets. They allow us to effectively evaluate our patients and communicate significant findings to physicians and other members of the healthcare team. In this case, a pregnant woman with a previous history of miscarriage complained of vaginal bleeding and abdominal discomfort. The assessment performed by the nurse fell negligently short of the required standard of care.
August 1, 1999: Nursing Duty To Patient, "Does Not Guarantee" Safety Or
Quality Of Care.
Summary: When a nurse accepts report and responsibility for the care of a patient a duty to the patient is also accepted. This duty is to provide a reasonable standard of care as defined by the Nurse Practice Act of the individual state and the facility Policy & Procedures. In this case, a post-op abdominal aneurysm repair patient was injured after falling from his bed to the floor. When a lawsuit was filed the court initially mistook expert testimony to imply the role of the nurse includes a guarantee of safety.
Downey v. Mobile Infirmary Med. Ctr. - 662 So. 2d 1152 (1995).
July 4, 1999: Diabetic Coronary Artery Bypass Patient, Septic & Noncompliant. Nursing Duty and Responsibility Questioned.
Patient noncompliance can present serious challenges to nurses and physicians providing care. If aware of the proper measures to be taken, what happens when the patient does not agree or comply with the course of treatment? In this case, a patient after having a coronary artery bypass grafting developed a sternal infection. When advised by a nurse to return for treatment, the patient refused.
Kind v. State Ex Rel. Dept. of Health, 728 S.o. 2d 1027 -LA (1999).
June 27, 1999: Elderly Patient Repeatedly Injured In Nursing Home "Accidents." Negligence, Coincidence or Abuse?
As the elderly population continues to increase, more and more families are faced with the decision to place loved ones in nursing homes. When a family member is placed in a facility, a certain standard of care is expected. In this case, a resident was injured repeatedly while under their care. When the patient died a few days after being "dropped" the family sued.
Brickey v. Concerned Care of Midwest Ince. 988 S.W. 2d 592 MO (1999)
June 6, 1999: Emergency Department Nurse Verbally Abused, Physician History Well Documented
Official tolerance for verbal abuse and sexual harassment is approaching zero. It is clear that both are still prevalent in healthcare settings today. Enforcing and reporting instances of abuse are critical to an end being put to the situation. In this case, a physician had a "history" of verbal abuse in the facility involved. It was the documentation of previous events that made formal action and administration of a suspension feasible.
Gordon v. Lewiston Hospital, 714 A.2d 539 – PA (1998)
May 30, 1999: Patient Left Unrestrained, Patient Injured. Nurses Judgement Call
The decision to use or not use restraints must be made with caution and good judgement. Their intended purpose must be to protect either the patient or others who may be injured by the patient including the staff caring for the client. The ultimate determination of necessity is left with the physician. Often, the moment to moment necessity is determined by the nurse. In this case a nurse did not feel restraining the patient was necessary. When an injury occurred, the patient sued.
Gerard v. Sacred Heart Medical Center - 937 P. 2d 1104 (1997)
1. 40 RRNL 4 (September 1999)
2. The SpineCenter. No Date Given. What Is A Myelogram? Retrieved October 3, 1999 from the World Wide Web:
4. The American Nurses Association. July 2, 1995. The Right to Accept or Reject an Assignment. Retrieved October 3, 1999 from the World Wide Web: http://www.ana.org/readroom/position/workplac/wkassign.htm
5. McLean, Terry. November/December 96. A Vision For Us All. Retrieved October 3, 1999 from the World Wide Web: http://www.aspan.org/05pres.htm
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Created on September 20, 1999
Last updated by Andrew Lopez, RN on Monday, January 25, 2010
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