Nurse Advises "Reconsider Choice of Physicians" An Nurse's Ethical Dilemma. Robert W. Stein, III, RN, MSHA, CHE, #nurseup

Nurse Advises "Reconsider Choice of Physicians" An Nurse's Ethical Dilemma. Robert W. Stein, III, RN, MSHA, CHE, LNC:"In this case the nurse providing patient care noted a decline in the patient's condition, evidenced by weight loss, hallucinations, psychiatric symptoms, and acute distress. The findings were documented and attempts were made to contact the attending physician. The attending physician, however, failed to return any of telephone messages.
As the patient's condition continued to deteriorate, the patient's family asked for the nurse's advice about what should be done for the patient. The nurse suggested that they "reconsider the choice of physicians."
The facility promptly fired the nurse after learning of the advice she had given to the patient's family. The nurse brought suit for wrongful termination arguing that as a Registered Nurse she was obligated to provide "teaching and counseling" to her patients and their families."
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Elderly Patient Repeatedly Injured In Nursing Home "Accidents." Negligence, Coincidence or Abuse? #nursefriendly #nursecasestudy #elderly #geriatrics

See also: Medical, Legal Nurse Consultants, Clinical Nursing Case of the Week, Clinical Charting and Documentation, Nurses Notes, Courtrooms, Disability, Discrimination, Employment, Expert Witnesses, Informed Consent, Medical Malpractice, Nursing Practice Acts, Pensions, Search Engines, Torts and Personal Injury, Unemployment, Workers Compensation, Workplace Safety:

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Summary:  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.

The patient was a 95 year old woman who was placed in a Missouri nursing home when the family was no longer able to care for her needs.

"Approximately 1.5 million people live in the nation's 17,000 nursing care facilities. . .The typical nursing home resident is a woman in her 80s displaying a mild form of memory loss and dementia. Although physically healthy for a woman her age, she needs help with approximately 4 of 5 activities of daily living (eating, transferring, toiletting, dressing, and bathing)."2

During her admission the patient would sustain  multiple injuries over the course of her stay.  In 1993, on two occasions, the patient's legs were broken with fractures diagnosed.  Each time the patient was transferred to the hospital for treatment and then returned to the nursing home.

Each time the documentation would show that the family had been "made aware."  This was reflected in incident reports that had been filed.  The incident reports did not specify which family members had been notified.

A third injury took place in 1995 when the patient was being transferred from her bed.  Documentation of the incident stated that the patient had been "dropped" during a transfer.  The charted notes documented that a head injury was sustained and that family members were notified.

The patient was again transferred to the hospital and was evaluated in the Emergency Department.  Interestingly, when examined by a physician, the day after the incident, the physician stated that there was no evidence of head injury.  Five days following this examination, the patient died.

The family would sue the nursing home.  They would allege that standards of care had not been met.  They would accuse the nursing home of rendering negligent care.

It is no secret that nursing home abuse occurs.  It can take many different forms and have devastating consequences on residents and their families.

"The United States Department of Health and Human Services researchers identified seven categories of abuse. Ninety-five percent of those surveyed said they felt that all seven are problems for nursing home residents:

Physical abuse --infliction of physical pain or injury.

Misuse of restraints --chemical or physical control of a resident beyond physician's order or outside accepted medical practice.

Verbal/emotional abuse --infliction of mental or emotional suffering.

Physical neglect --disregard for the necessities of daily living.

Medical neglect --lack of care for existing medical problems.

Verbal/emotional neglect --creating situations harmful to the resident's self-esteem.

Personal property abuse --illegal or improper use of a resident's property for personal gain."3

The basis of the family's lawsuit centered on the assumption that a certain standard of care, and a "duty" is owed to nursing home residents.   This duty it was assumed, included safe living conditions, freedom from harm and timely medical treatment.  They alleged that these standards had not been observed by the nursing home.

In the initial trial, a review of the charting and documentation showed that in each "incident," facility protocols had been followed.  Upon discovery of the injuries, medical treatment and family notification had been provided.

The Defense moved to have the charges dismissed.  The court agreed.

The family appealed.

Questions to be answered.

1. Was there clear evidence of either neglect or abuse on the part of the nursing home staff in either of the three documented incidents of injury?

2. Had standards of care been met in regard to treating an injured patient and providing safe and reasonable care.

Chiefly due to the timely documentation of the incidents, the records were used to demonstrate adequate care being given.

The family's lawsuit chiefly targeted the "handling" of the incidents rather than the "cause" of injury.  The documented interventions and notifications on the part of the nursing staff provided sufficient proof that standards were upheld.

It is common knowledge that documented nurses' notes and the medical chart are legal records.  They should be written and treated at all times as if a jury will later examine them.

Had the incident not been documented as thoroughly or had incident reports not been filled out, it might have been a different story.  It was the clear and concise charting of the nursing homes staff's handling of the incidents that saved the facility from a potentially costly lawsuit and trial.

This was particularly evident when the family accused the nursing home staff of "failure to notify" the family members.  As long as efforts were documented in the notes to notify the family, the facility was covered.

It is a bit strange that the specifics as to "who" was notified was not included in the chart.  Under a different set of opinions, this could easily be interpreted as a "red flag."  In this case it was not.

This documentation of  "notification" could have been seen as the nursing home staff charting to cover themselves regardless of whether a family member had been contacted.

To minimize suspicions of impropriety it is suggested that when a family member is contacted, the name and phone number also be documented.  All evidence is subject to interpretation.  This can be applied to physician notification as well.

When a patient has an attending, consulting physicians and residents responsible for their care, "MD made aware" leaves much room for debate as to who was notified.  If the name of the physician is noted, the guesswork is removed and accountability easier to establish.

What was not addressed in this case was the nature of the "accidental" injuries.  It is not difficult to imagine a 95-year-old patient falling as she tries to get out of bed.  It is common for patients to fall on their way to or from the bathroom.  The pertinent question is "could the injuries have been avoided."

It is clear from published studies that indeed many can be.

""We found that neither complaint investigations nor enforcement practices are being used effectively to assure adequate care for Nursing Homes residents and the prevention of nursing home abuse and neglect. As a result, allegations or incidents of serious problems, such as inadequate prevention of pressure sores, failure to prevent accidents, and failure to assess residents' needs and provide appropriate care, often go uninvestigated and uncorrected."4

Lawsuits against nursing homes are common and on the rise.  If you are working in a nursing home, you need to be aware that you are responsible for documenting adequate care.  You are equally responsible for prevention.  If a dangerous condition or "accident waiting to happen" is identified, steps must be taken and documented to correct it.

If a patient is at risk for falling they may refuse to call for assistance.  If they try to get out of bed anyway, it should be documented that the patient was instructed to "call for assistance," and did not.

If a patient is clearly a danger to himself or herself and others, restraints may be indicated.  The family or the physician may refuse to allow or write an order for them.  The nurse must document that the need for them was communicated, to whom and the response.

Even with adequate care being given accidents can happen with legal consequences.  Nursing homes are currently the focus of intense governmental supervision and regulation.  The effectiveness of the regulation is debatable.  There are many that feel that the only "solution" to correcting problems are legal actions against nursing homes.

If this approach is to be paralleled to eliminating medical malpractice, a solution may be a long way off.  What can be anticipated is increased pressure from the government, from consumers and the courts.  This will result in increased litigation and increased pressure on nursing home staff and facilities.  Each member of the nursing staff would be wise to document carefully daily care and especially incidents that result in injury.

Related Case Studies:

June 13, 1999: Felony Child Abuse Conviction, Made Possible Thanks to Nurse's Documentation.
State v. Gillard, 936 S.W. 2d 194 - MO (1999).
http://www.nursefriendly.com/nursing/clinical.cases/061399.htm

June 6, 1999: Emergency Department Nurse Verbally Abused, Physician History Well Documented
Gordon v. Lewiston Hospital, 714 A.2d 539 - PA (1998)
http://www.nursefriendly.com/nursing/clinical.cases/060699.htm

May 30, 1999: Patient Left Unrestrained, Patient Injured. Nurses Judgement Call
Gerard v. Sacred Heart Medical Center - 937 P. 2d 1104 (1997)
http://www.nursefriendly.com/nursing/clinical.cases/053099.htm

Related Link Sections:

Abuse:
http://www.nursefriendly.com/nursing/directpatientcare/abuse.htm

Clinical Charting and Documentation, Nurses Notes:
http://www.nursefriendly.com/nursing/linksections/directpatientcarelinks.htm

Emergency Department Nurses on the Nurse Friendly:
http://www.nursefriendly.com/nursing/directory/spec/ed.html

Ethics:
http://www.nursefriendly.com/nursing/directpatientcare/ethics.htm

Head Injuries:
http://www.nursefriendly.com/nursing/directpatientcare/head.injuries.htm

Mechanical & Physical Restraints:
http://www.nursefriendly.com/nursing/directpatientcare/mechanical.physical.re...

Medical Legal Consulting Nurse Entrepreneurs:
http://www.nursefriendly.com/nursing/ymedlegal.htm

Nursing Homes, Long Term Care Links:
http://www.nursefriendly.com/nursing/nursing.homes.long.term.care.htm
 

Sources:

1. 40 RRNL 1 (June 1999)

2. American Health Care Association.  September 1998. Profile: Nursing Facility Resident: Retrieved June 27, 1999 from the World Wide Web:  http://www.ahca.org/secure/nfres.htm

3. Seniors-Site.  No date given.  Nursing Home Abuses to Senior Citizens.   Retrieved June 27, 1999 from the World Wide Web: http://seniors-site.com/nursing/abuses.html

4. United States Senate.  March '99. Excerpts from Committee On Aging Hearings.  Retrieved June 27, 1999 from the World Wide Web: http://www.jeffdanger.com/

The Uniform Resource Locator (URL) or Internet Street Address of this page is
http://www.nursefriendly.com/nursing/clinical.cases/062799.htm

Send comments and mail to Andrew Lopez, RN

Created on Saturday May 23, 1999

Last updated by Andrew Lopez, RN on Saturday, September 17, 2011

via nursefriendly.com

Patient Left Unrestrained, #Patient Injured. #Nurses Judgement Call, #nursing #malpractice #nursefriendly #epatient #negligence

See also: Medical, Legal Nurse Consultants, Clinical Nursing Case of the Week, Clinical Charting and Documentation, Nurses Notes, Courtrooms, Disability, Discrimination, Employment, Expert Witnesses, Informed Consent, Medical Malpractice, Nursing Practice Acts, Pensions, Search Engines, Torts and Personal Injury, Unemployment, Workers Compensation, Workplace Safety:

Each week a case will be reviewed and supplemented with clinical and legal resources from the web. Attorneys, Legal Nurse Consultants and nursing professionals are welcome to submit relevant articles. Please contact us if you'd like to reproduce our material.

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Summary: 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.

The patient was involved in a motor vehicle accident. A head injury was suffered leaving him in a state of confusion and prone to agitation.

"Each year, an estimated 2 million people sustain a head injury. About 500,000 to 750,000 head injuries each year are severe enough to require hospitalization. Head injury is most common among males between the ages of 15-24, but can strike, unexpectedly, at any age. Many head injuries are mild, and symptoms usually disappear over time with proper attention. Others are more severe and may result in permanent disability." 2

Following the head injury, the patient was visibly confused and frequently became agitated. During the course of his admission, an order for "soft" wrist restraints was obtained and implemented to protect the patient from injury related to mental status (personality) changes.

"Personality Changes-Apathy and decreased motivation. Emotional lability, irritability, depression. Disinhibition which may result in temper flare-ups, aggression, cursing, lowered frustration tolerance, and inappropriate sexual behavior."2

On the day of the incident, the nurse on duty had assessed the patient. In her professional opinion restraints were not needed.

"What Is Restraint?

"Restraint" is physical force, mechanical devices, chemicals, seclusion, or any other means which unreasonably limit freedom of movement. hospital staff may use four types of restraint to restrict patients who are acting, or threatening to act, in a violent way towards themselves or others.

Physical restraint--holding a patient for over five minutes in order to prevent freedom of movement.

Mechanical restraint--using a device, such as 4-point or full sheet restraint, to restrict a patient's movement (excludes devices prescribed for medical purposes).

Chemical restraint--medicating a patient against her will for the purpose of restraint rather than treatment.

Seclusion--placing a patient alone in a room so that she cannot see or speak with patients or staff and the patient cannot leave or believes she cannot leave."3

She based this decision on her observation of the patient's mental, physical state and level of consciousness. It is common procedure and protocol in facilities for patient's to be released from restraints when the danger of violence is felt to have passed.

"How Long May Restraint Continue?

When an emergency no longer exists, the patient should be released. Thus, staff should release a patient who, upon examination, appears calm. The total time which a patient may be restrained is limited:"3

Later in the shift, the same nurse was helping the patient get up. In the course of this maneuver, the patient fell and claimed that an injury was sustained.

A lawsuit would be filed against the facility alleging negligence on the part of the nurse. The patient contended that the removal of the restraints breached standards of care.

In the initial trial, the jury was instructed to view the nurse's role as an "error in judgement." Based on this and on testimony on the proper use of restraints, standards of care, the court found for the facility.

The patient appealed.

Questions to be answered:

1. Was the nurse in error to remove the restraints from a patient when she felt they were no longer needed.

2. Did the removal of the restraints directly contribute to the "injury" that the patient claimed to sustain?

3. Were the standards of care governing restraint use adequately maintained?

The plaintiff's arguments sought to convince the jury that poor judgement was exercised by the nurse. It was contended that removal of the restraints and ambulation of the patient put him in harm's way.

With the patient assessed to be calm, the purpose of the restraints, "to prevent the patient from harming himself or others," had been achieved.

The purpose of the restraints had not been to "keep the patient from falling out of bed." The removal of the restraints then, could not be deemed as negligent. There was no duty of care breached in allowing the calm patient to remain unrestrained.

The order was in place to ambulate the patient when stable. In the nurse's opinion, the patient was ready. Another nurse may not have agreed with her actions. The patient under a different nurse's care might have been kept in restraints. A nurse could have "held off" on the order to ambulate.

There was no causative relationship between removing the restraints and the patient's fall. In carrying out orders for ambulation, the nurse was providing proper nursing care.

It's not difficult to picture a lone nurse with an unsteady patient losing control and having the patient slip away. Would this be a breach of duty owed to the patient?

One could argue that the nurse had no business trying to move a patient by herself. One might also observe the staffing patterns at the time and realize the nurse was doing "the best she could."

The decision to remove the restraints was clearly a nursing decision. Often the decision to use them in the first place lies with the nurse too.

This illustrates the leeway and discretion given nurses when carrying out physician's orders. It also shows the typical catch 22 situation some nurses may find themselves in regarding restraint use.

"Historically, conventional wisdom supported using physical restraints, including bed side rails, to "protect and safeguard" residents. Ironically, little documented evidence exists that restraints prevent falls and risk of injury from falls. Clinical studies demonstrate that restraints, conversely, in some instances, precipitate or exacerbate fall risk."4

Both nurses in the above situation would be acting within their scope of practice. Each would be adhering to standards of care.

For the plaintiff to have a case, it would need to proven that either the removal of the restraints or the ambulation of the patient was premature.

This was clearly not the case. The actions of the nurse were in good faith and exercised reasonable concern for the well being of the patient. The fact that the patient suffered a fall is unfortunate, and reasonably unforseeable.

It can be compared to the actions of a physician when dealing with an acute patient. Depending on which course of treatment that physician chooses, the patient might or might not have a favorable outcome.

In either case, as long as the physician exercises reasonable judgement based on established principles of practice, a finding of negligence is unlikely.

It has been well established that Medicine is not an exact science. Outcomes are not guaranteed when prescribing courses of treatment.

They are the result of standard medical practices and individual patient responses. These responses are not always predictable. Basically, the caregiver can only hope for the best.

The same principle applies to Nursing care. Regardless of how accurate assessments are and how diligently orders are carried out, patients may or may not experience favorable outcomes.

When outcomes are unfavorable, it is the constitutional right of the patient or patient's estate to sue anyone felt to be involved.

The court reviewed the facts of the case and a nursing expert's testimony on restraint use. The appeals court agreed that standards of care had been maintained.

There exists today intense pressure from family members, governmental agencies and regulatory agencies to limit restraint use to "only when absolutely necessary." As soon as they are put in use, the plan of care must include provisions for their removal.

Link Sections:

Head Injuries:
http://www.nursefriendly.com/nursing/directpatientcare/head.injuries.htm

Ethics:
http://www.nursefriendly.com/nursing/directpatientcare/ethics.htm

Mechanical & Physical Restraints:
http://www.nursefriendly.com/nursing/directpatientcare/mechanical.physical.re...

Medical Legal Consulting Nurse Entrepreneurs
http://www.nursefriendly.com/nursing/ymedlegal.htm

Sources:

1. RRNL 2 (July 1997)

2. Family Caregivers Alliance Clearinghouse. Revised November 1996. Fact Sheet: Head Injury. Retrieved May 30, 1999 from the World Wide Web: http://www.caregiver.org/factsheets/head_injury.html

3. Mental Health Legal Advisors Committee. No date given. Your Rights in Hospitals Regarding Restraining and Seclusion. Retrieved May 30, 1999 from the World Wide Web: http://www.psychiatry.com/mhlac/basicrights/restraintandseclusion.html

4. Braun, Julie A. & Quish, Clare J. 11/10/98. Illinois Institute for Continuing Legal Education. Physical Restraints And Fall-Related Injuries. Retrieved May 30, 1999 from the World Wide Web: http://www.iicle.com/articles/braun11_10_98b.html

The Uniform Resource Locator (URL) or Internet Street Address of this page is
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#Elderly #Patient Repeatedly Injured In #NursingHome "Accidents." #Negligence, Coincidence? http://bit.ly/sFOyRe #nursefriendly

See also: Medical, Legal Nurse Consultants, Clinical Nursing Case of the Week, Clinical Charting and Documentation, Nurses Notes, Courtrooms, Disability, Discrimination, Employment, Expert Witnesses, Informed Consent, Medical Malpractice, Nursing Practice Acts, Pensions, Search Engines, Torts and Personal Injury, Unemployment, Workers Compensation, Workplace Safety:

Each week a case will be reviewed and supplemented with clinical and legal resources from the web. Attorneys, Legal Nurse Consultants and nursing professionals are welcome to submit relevant articles. Please contact us if you'd like to reproduce our material.

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Summary:  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.

The patient was a 95 year old woman who was placed in a Missouri nursing home when the family was no longer able to care for her needs.

"Approximately 1.5 million people live in the nation's 17,000 nursing care facilities. . .The typical nursing home resident is a woman in her 80s displaying a mild form of memory loss and dementia. Although physically healthy for a woman her age, she needs help with approximately 4 of 5 activities of daily living (eating, transferring, toiletting, dressing, and bathing)."2

During her admission the patient would sustain  multiple injuries over the course of her stay.  In 1993, on two occasions, the patient's legs were broken with fractures diagnosed.  Each time the patient was transferred to the hospital for treatment and then returned to the nursing home.

Each time the documentation would show that the family had been "made aware."  This was reflected in incident reports that had been filed.  The incident reports did not specify which family members had been notified.

A third injury took place in 1995 when the patient was being transferred from her bed.  Documentation of the incident stated that the patient had been "dropped" during a transfer.  The charted notes documented that a head injury was sustained and that family members were notified.

The patient was again transferred to the hospital and was evaluated in the Emergency Department.  Interestingly, when examined by a physician, the day after the incident, the physician stated that there was no evidence of head injury.  Five days following this examination, the patient died.

The family would sue the nursing home.  They would allege that standards of care had not been met.  They would accuse the nursing home of rendering negligent care.

It is no secret that nursing home abuse occurs.  It can take many different forms and have devastating consequences on residents and their families.

"The United States Department of Health and Human Services researchers identified seven categories of abuse. Ninety-five percent of those surveyed said they felt that all seven are problems for nursing home residents:

Physical abuse --infliction of physical pain or injury.

Misuse of restraints --chemical or physical control of a resident beyond physician's order or outside accepted medical practice.

Verbal/emotional abuse --infliction of mental or emotional suffering.

Physical neglect --disregard for the necessities of daily living.

Medical neglect --lack of care for existing medical problems.

Verbal/emotional neglect --creating situations harmful to the resident's self-esteem.

Personal property abuse --illegal or improper use of a resident's property for personal gain."3

The basis of the family's lawsuit centered on the assumption that a certain standard of care, and a "duty" is owed to nursing home residents.   This duty it was assumed, included safe living conditions, freedom from harm and timely medical treatment.  They alleged that these standards had not been observed by the nursing home.

In the initial trial, a review of the charting and documentation showed that in each "incident," facility protocols had been followed.  Upon discovery of the injuries, medical treatment and family notification had been provided.

The Defense moved to have the charges dismissed.  The court agreed.

The family appealed.

Questions to be answered.

1. Was there clear evidence of either neglect or abuse on the part of the nursing home staff in either of the three documented incidents of injury?

2. Had standards of care been met in regard to treating an injured patient and providing safe and reasonable care.

Chiefly due to the timely documentation of the incidents, the records were used to demonstrate adequate care being given.

The family's lawsuit chiefly targeted the "handling" of the incidents rather than the "cause" of injury.  The documented interventions and notifications on the part of the nursing staff provided sufficient proof that standards were upheld.

It is common knowledge that documented nurses' notes and the medical chart are legal records.  They should be written and treated at all times as if a jury will later examine them.

Had the incident not been documented as thoroughly or had incident reports not been filled out, it might have been a different story.  It was the clear and concise charting of the nursing homes staff's handling of the incidents that saved the facility from a potentially costly lawsuit and trial.

This was particularly evident when the family accused the nursing home staff of "failure to notify" the family members.  As long as efforts were documented in the notes to notify the family, the facility was covered.

It is a bit strange that the specifics as to "who" was notified was not included in the chart.  Under a different set of opinions, this could easily be interpreted as a "red flag."  In this case it was not.

This documentation of  "notification" could have been seen as the nursing home staff charting to cover themselves regardless of whether a family member had been contacted.

To minimize suspicions of impropriety it is suggested that when a family member is contacted, the name and phone number also be documented.  All evidence is subject to interpretation.  This can be applied to physician notification as well.

When a patient has an attending, consulting physicians and residents responsible for their care, "MD made aware" leaves much room for debate as to who was notified.  If the name of the physician is noted, the guesswork is removed and accountability easier to establish.

What was not addressed in this case was the nature of the "accidental" injuries.  It is not difficult to imagine a 95-year-old patient falling as she tries to get out of bed.  It is common for patients to fall on their way to or from the bathroom.  The pertinent question is "could the injuries have been avoided."

It is clear from published studies that indeed many can be.

""We found that neither complaint investigations nor enforcement practices are being used effectively to assure adequate care for Nursing Homes residents and the prevention of nursing home abuse and neglect. As a result, allegations or incidents of serious problems, such as inadequate prevention of pressure sores, failure to prevent accidents, and failure to assess residents' needs and provide appropriate care, often go uninvestigated and uncorrected."4

Lawsuits against nursing homes are common and on the rise.  If you are working in a nursing home, you need to be aware that you are responsible for documenting adequate care.  You are equally responsible for prevention.  If a dangerous condition or "accident waiting to happen" is identified, steps must be taken and documented to correct it.

If a patient is at risk for falling they may refuse to call for assistance.  If they try to get out of bed anyway, it should be documented that the patient was instructed to "call for assistance," and did not.

If a patient is clearly a danger to himself or herself and others, restraints may be indicated.  The family or the physician may refuse to allow or write an order for them.  The nurse must document that the need for them was communicated, to whom and the response.

Even with adequate care being given accidents can happen with legal consequences.  Nursing homes are currently the focus of intense governmental supervision and regulation.  The effectiveness of the regulation is debatable.  There are many that feel that the only "solution" to correcting problems are legal actions against nursing homes.

If this approach is to be paralleled to eliminating medical malpractice, a solution may be a long way off.  What can be anticipated is increased pressure from the government, from consumers and the courts.  This will result in increased litigation and increased pressure on nursing home staff and facilities.  Each member of the nursing staff would be wise to document carefully daily care and especially incidents that result in injury.

Related Case Studies:

June 13, 1999: Felony Child Abuse Conviction, Made Possible Thanks to Nurse's Documentation.
State v. Gillard, 936 S.W. 2d 194 - MO (1999).
http://www.nursefriendly.com/nursing/clinical.cases/061399.htm

June 6, 1999: Emergency Department Nurse Verbally Abused, Physician History Well Documented
Gordon v. Lewiston Hospital, 714 A.2d 539 - PA (1998)
http://www.nursefriendly.com/nursing/clinical.cases/060699.htm

May 30, 1999: Patient Left Unrestrained, Patient Injured. Nurses Judgement Call
Gerard v. Sacred Heart Medical Center - 937 P. 2d 1104 (1997)
http://www.nursefriendly.com/nursing/clinical.cases/053099.htm

Related Link Sections:

Abuse:
http://www.nursefriendly.com/nursing/directpatientcare/abuse.htm

Clinical Charting and Documentation, Nurses Notes:
http://www.nursefriendly.com/nursing/linksections/directpatientcarelinks.htm

Emergency Department Nurses on the Nurse Friendly:
http://www.nursefriendly.com/nursing/directory/spec/ed.html

Ethics:
http://www.nursefriendly.com/nursing/directpatientcare/ethics.htm

Head Injuries:
http://www.nursefriendly.com/nursing/directpatientcare/head.injuries.htm

Mechanical & Physical Restraints:
http://www.nursefriendly.com/nursing/directpatientcare/mechanical.physical.re...

Medical Legal Consulting Nurse Entrepreneurs:
http://www.nursefriendly.com/nursing/ymedlegal.htm

Nursing Homes, Long Term Care Links:
http://www.nursefriendly.com/nursing/nursing.homes.long.term.care.htm
 

Sources:

1. 40 RRNL 1 (June 1999)

2. American Health Care Association.  September 1998. Profile: Nursing Facility Resident: Retrieved June 27, 1999 from the World Wide Web:  http://www.ahca.org/secure/nfres.htm

3. Seniors-Site.  No date given.  Nursing Home Abuses to Senior Citizens.   Retrieved June 27, 1999 from the World Wide Web: http://seniors-site.com/nursing/abuses.html

4. United States Senate.  March '99. Excerpts from Committee On Aging Hearings.  Retrieved June 27, 1999 from the World Wide Web: http://www.jeffdanger.com/

The Uniform Resource Locator (URL) or Internet Street Address of this page is
http://www.nursefriendly.com/nursing/clinical.cases/062799.htm

Send comments and mail to Andrew Lopez, RN

Created on Saturday May 23, 1999

Last updated by Andrew Lopez, RN on Saturday, September 17, 2011

via nursefriendly.com

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Andrew Lopez, RN
Nursefriendly, Inc. A New Jersey Corporation.
38 Tattersall Drive, Mantua New Jersey 08051
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856-415-9617, (fax) 415-9618

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Jocularity.com (Former home to the Journal of Nursing Jocularity (JNJ)):"Nursing & Medical Humor. Find hundreds of jokes and links to sites that will make you smile. Therapeutic Humor Associations, Battle of the Sexes, Bedside Nursing Humor, Brain Teasers, Clowning, Clowns, Therapeutic Humor & Comedy Links, Dental Humor, Emergency Department Humor, General Nursing Humor, Geriatrics, Senior Citizen, etc."
http://www.jocularity.com

Legalnursingconsultant.com:"This website is intended to be a resource for Legal Nurse Consultants, Attorneys looking to use their services, and nurses looking to enter the field of Legal Nurse Consulting. On our site you'll find a directory of LNCs by state and specialty."
http://www.legalnursingconsultant.com

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Nursingdiabetics.com:"Welcome to NursingDiabetics.com. Here you will find information on all aspects of Diabetes, a disease that afflicts millions of people world wide. I'll be adding pages as fast as I can research the information so remember to bookmark this page and return."
http://www.nursingdiabetics.com

Nursingdiscussions.com:"This website will be a portal to Nursing Discussion boards throughout the Web. If your site has a discussion board we don't have listed here, please contact us."
http://www.nursingdiscussions.com

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http://www.nursingentrepreneurs.com

Nursinghumor.com:"Nursing & Medical Humor. Find hundreds of jokes and links to sites that will make you smile. Therapeutic Humor Associations, Battle of the Sexes, Bedside Nursing Humor, Brain Teasers, Clowning, Clowns, Therapeutic Humor & Comedy Links, Dental Humor, Emergency Department Humor, General Nursing Humor, Geriatrics, Senior Citizen, etc."
http://www.nursinghumor.com

Good Samaritan Laws & Acts. Do They Cover Nurses Volunteering Nursing Care When A Citizen Goes Anaphylactic.

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See also: Medical, Legal Nurse Consultants, Courtrooms, Disability, Discrimination, Employment, Expert Witnesses, Informed Consent, Medical Malpractice, Nursing Practice Acts, Pensions, Search Engines, Torts and Personal Injury, Unemployment, Workers Compensation, Workplace Safety:

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Summary:  "Off-duty" healthcare professionals rendering
Emergency aid are in most cases "covered" by the Good
Samaritan Acts.  These are laws enacted in each state
that provide some degree of immunity from liability for
good faith efforts in giving emergency care.  In this
case, a nurse and physician were sued for providing
assistance in a volunteer function at a "first-aid" station.
Good Samaritan "immunity" was not recognized by the
courts.

A nurse, physician and several others volunteered to help
out with a first-aid station at a food festival being held locally.
 During the festivities one attendee would suffer an anaphylactic
attack.

The man had a known allergy to fish and helped himself to a
"gumbo" mix that contained the allergen.  He proceeded to experience
an anaphylactic allergic reaction.  The event "first aid squad" was
notified only of a "problem" and the person's location.

"Anaphylactic Shock

is the most severe form of allergy which is a medical emergency,
is a type I reaction in Gell And Coombs Classification .An often
severe and sometimes fatal systemic reaction in a susceptible
individual upon exposure to a specific antigen (as wasp venom
or penicillin) after previous sensitization that is characterized
especially by respiratory symptoms, fainting, itching, urticaria,
swelling of the throat or other mucous membranes and a sudden
decline in blood pressure."2

Of those present, all but a nurse remained at the station.  With the
physician and others on the way to assist the victim, clearly someone
had to stay at the station in case there were other emergencies.  The
question would arise of whether or not their actions were covered
under existing Good Samaritan Laws.  A key consideration is whether
or not a legal "duty to assist" the victim was created when the
responsibility to "volunteer" was accepted.

"Flynn v. United States, 681 F. Supp. 1500, 1506 (D. Utah 1988),
modified in part, 902 F.2d 1524 (10th Cir. 1990). Good Samaritan
laws responded to the common law rule that made one liable for
negligently rendering voluntary emergency assistance by extending
immunity from suit, thereby encouraging humanitarian acts by
licensed medical providers."3

Arriving on the scene, not knowing what to expect, they found
the person symptomatic, still conscious and standing on his own.
He indicated that he'd had a reaction and was in need of "a shot."

"Symptoms of anaphylactic shock include dizziness, loss of
consiousness, labored breathing, swelling of the tongue and
breathing tubes, blueness of the skin, low blood pressure, and
death bronchospasm"1

The physician recognizing the anaphylactic nature of the situation
requested one of the others obtain "epinephrine," while she stayed
with the patient.

When the other member of the squad returned with a single "Epi pen."
 The physician administered a dose.  The patient claimed to not have
obtained any relief.  A second shot was requested.  The pen was a
single dose unit only.  Having already used the available dose, the
physician explained it would be nearly empty.  There was no other
immediate source of epinephrine available at the time.  Unable to
offer an alternative, the physician gave the patient a second shot with
the same injector hoping it might still contain "some" medication.

Again the patient did not obtain relief.  With symptoms persisting,
the patient's condition deteriorated.  At this point an ambulance was
on the way, the nurse had been relieved at the station and came up
to assist, still unaware of what the problem had been.

When she came upon the patient, the best she could do was stay
with him until the emergency medical personnel arrived.  The
patient would complain of increasing shortness of breath.  En route
to the hospital, he would slip into a coma.  He would die the next day.

A lawsuit was filed naming both the physician and the nurse alleging
a "wrongful death."  Both the nurse and physician fought this in court.
 In the initial trial, the complaint was dismissed.

They argued for protection under the Good Samaritan Acts of the state.
  This legislation was enacted to encourage health professionals to
render aid at the roadside.  Previously, professionals had and still do
hesitate to assist for fear of being sued by the injured party.

"Because of the pervasive myth of liability in the medical professions,
most states have enacted some form of Good Samaritan law prohibiting
a patient from suing a physician or other health care professional for
injuries from a Good Samaritan act. To trigger the protection of such
an act, two conditions must be satisfied: it must be a volunteer act, and
the actions must be a good-faith effort to help. Displacing a neck fracture
in an effort to do rescue breathing might be malpractice in the Emergency
Room, but it is not bad faith on the roadside."4

While a Good Samaritan Act may protect you in state-specific circumstances
from being found and held liable, it will not protect you (nor will an
employer's malpractice insurance policy) from being sued in the first place.

In most states there is no obligation for a bystander to render aid or
legislation to penalize those that do not decide to get involved.
Minnesota, Vermont and Wisconsin are exceptions to this rule.
Minnesota statutes follow:

"A person at the scene of an emergency who knows that another person
is exposed to or has suffered grave physical harm shall, to the extent
that the person can do so without danger or peril to self or others, give
reasonable assistance to the exposed person. Reasonable assistance
may include obtaining or attempting to obtain aid from law enforcement
or medical personnel. A person who violates this subdivision is guilty
of a petty misdemeanor. "5

A common thread in each of the Good Samaritan laws is that no
immunity will be afforded for specific exceptions.

"The most commonly stated exception to immunity is for conduct that
is willful and wanton. Many jurisdictions also exclude other categories
of conduct, such as conduct that is grossly negligent, reckless, malicious,
in bad faith, fraudulent, or intentionally tortious or that is a knowing
violation of law. A few even included ordinary negligence, which arguably
negates the protection afforded."6

In the state of Rhode Island, in which this event occurred, there are
no specific laws requiring that a bystander give assistance.

Interestingly, immunity by the state laws is granted in the following
which do not specify volunteer medical and first aid activities.

"Rhode Island law also grants immunity from civil damages to:

(1) Persons rendering service as, or assisting, a manager, coach, instructor,
umpire, referee or official in certain interscholastic or intramural
sports programs;

(2) Any uncompensated person voluntarily serving as or assisting a
manager, coach, instructor, umpire, referee or official in a youth
sports program organized and conducted by or under the auspices
of a nonprofit corporation; or

(3) Directors, officers, trustees or employees of any nonprofit
organization, authorized to do business in the state, that organizes,
conducts or sponsors a youth sports program.208"6

It is debatable whether the initial trial led to a dismissal on grounds
of protection under existing Good Samaritan laws, or simply a lack
of evidence to prove negligence.  Of these, the latter is more likely.

With the complaint initially dismissed, the patient's estate appealed.

Questions to be answered.

1. In rendering care to the patient in a state of anaphylaxis, did
both the nurse and physician perform to the best of their abilities
with the resources available to them.

2. In rendering emergency aid to the patient, were they covered by
the state's existing "Good Samaritan" laws.

The plaintiff's attorneys would argue that negligence had been
a factor in the patient's death.  They accused the physician and
nurse of arriving on the scene "unprepared" to deal with the situation.

Interestingly, the plaintiff could offer no expert witness testimony
to support this.

In deciding the second question, the court explicitly stated that
"it assumed the defendants were not covered under Good Samaritan Laws."

This is alarming in that if the plaintiff had been able to produce
sufficient expert testimony to prove negligence, the nurse and
physician may well have been held liable.

In light of these circumstances,  the ruling of the lower court was
affirmed.

It sends a frightening message to nurses, medical and health care
personnel who chose to "volunteer" their expertise in times of need.
Some state laws do require action in specific circumstances:

It is unclear whether this opinion was offered because the assistance
was "organized."  Is an exception made to the Good Samaritan Acts
for First Aid Squads and Organized Emergency Medical Personnel
regardless of whether or not they charge the patient for their services?

Troubling questions for the individual when deciding whether or not
to render aid.  The answers and exceptions are defined in individual
state laws that vary widely.

Many nurses rely on malpractice insurance provided by their
employers to cover them at work.  It is highly unlikely that such
a policy would cover them while performing volunteer duties.

If you accept responsibility to perform expected duties either on
a paid or volunteer basis, for a profit or non-profit organization, you
may not be covered under otherwise applicable Good Samaritan Statutes.
If you chose to protect yourself by carrying malpractice insurance
policy, it would be wise to make sure this coverage is specifically included.

Related link Sections:

Direct Patient Care Links
http://www.nursefriendly.com/nursing/linksections/directpatientcarelinks.htm

Emergency Department Nurses on the Nurse Friendly:
http://www.nursefriendly.com/nursing/directory/spec/ed.html

Good Samaritan Laws & Acts:
http://www.legalnursingconsultant.org/legal.nurse.consultants.lnc/good.samari...

Ethics:
http://www.nursefriendly.com/nursing/directpatientcare/ethics.htm

Medical Legal Consulting Nurse Entrepreneurs:
http://www.nursefriendly.com/nursing/ymedlegal.htm

Sources:

1. 38 RRNL 4 (September 1997)

2. Health on The Net Foundation. July 2, 1998.  HON Allergy Glossary Anaphylactic Shock. Retrieved July 18, 1999 from the World Wide Web:  http://wolfgang.hcuge.ch/Library/Theme/Allergy/Glossary/shock.html

3. Utah State Courts. Filed November 14, 1997.  Hirpa v. IHC Hospitals, Inc., No. 960180.  Retrieved July 18, 1999 from the World Wide Web:  http://courtlink.utcourts.gov/opinions/supopin/hirpa.htm

4. Law and the Physician Homepage.  No Date Given.  Good Samaritan Laws. Retrieved July 18, 1999 from the World Wide Web:   http://plague.law.umkc.edu/Xfiles/x894.htm

5. LawGuide.  1998.  Minnesota Good Samaritan Law.  Retrieved July 18, 1999 from the World Wide Web:  http://www.lawstreet.com/lawguide/sigsgomn.HTML

6. Carter-Yamauchi, Charlotte A. 1996.  Volunteerism - A Risky Business? Retrieved July 18, 1999 from the World Wide Web:  http://www.hawaii.gov/lrb/vol/volchp3.html
 

The Uniform Resource Locator (URL) or Internet Street Address of this page is
http://www.nursefriendly.com/nursing/clinical.cases/071899.htm

Send comments and mail to Andrew Lopez, RN

Created on July 14, 1999

Last updated by Andrew Lopez, RN on Monday, February 28, 2011

via nursefriendly.com

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Andrew Lopez, RN
Nursefriendly, Inc. A New Jersey Corporation.
38 Tattersall Drive, Mantua New Jersey 08051
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856-415-9617, (fax) 415-9618

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