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Read the two case summaries provided below. The case summaries are on page 2. Once you read the two case summaries, follow the instructions below.

Compare the appropriate nursing interventions by the nurse completed in Mississippi to the inappropriate nursing interventions by the nurse in the Texas case. Provide rationale supporting your comparison citing at least four scholarly sources.

PART 2

· One page Explain why you agree or disagree with these two case summaries

· Provide at least two examples and T

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O credible resource to support each

NO CONS

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DERATION FOR PLAGIARISM

APA FORMAT AND INDEX CITATION

PLEASE WRITE FROM NURSING PROSPECTIVE

DUE Wednesday 01/5/2022 AT 10AM

January 2013

Volume 21 Number 1

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

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

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

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he fifteen year-old patient was scheduled for surgery on the right

side of his brain to remove a right temporal lobe lesion that was believed to be causing his epileptic seizures.

The surgery began with the surgeon making an incision on the left side, opening the skull, penetrating the dura and removing significant portions of the left amygdala, hippocampus and other left-side brain tissue before it was discovered that they were working on the wrong side.

The left-side wound was closed, the right side was opened and the procedure went ahead on the right, correct side.

The error in the O.R. was revealed to the parents shortly after the surgery, but only as if it was a minor and inconsequential gaffe.

The patient recuperated, left the hospital, returned to his regular activities and graduated from high school before his parents could no longer deny he was not all right. After a thorough neurological assessment he had to be placed in an assisted living facility for brain damaged individuals.

Inside this month’s

Issue …

January 2013

New Subscriptions

See Page 3

Operating Room/Circulating Nurse – Nursing Home Admission

Labor & Delivery Nursing/Pitocin/Fetal Monitor

Labor & Delivery Nursing/High Risk Patient/Fetal Monitor

Medication Error/Nursing Negligence – Correctional Nursing

Age Discrimination – Race Discrimination/Minority Nurses

Skilled Nursing/Blood Draws/PT/INR/Reporting To Physician

Flu Immunization/Public Health Emergency – Nursing Assessment Nurse Practitioner/Pre-Signed Prescriptions – Threat Of Violence

When the full magnitude of the consequences came to light a lawsuit was filed which resulted in a $11 million judgment which was affirmed by the Supreme Court of Arkansas.

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

SUPREME COURT OF ARKANSAS December 13, 2012

Surgical Error Blamed, In Part, On Circulating Nurse’s Negligence

The Court accepted the testimony of the family’s nursing expert that a circulating nurse has a fundamental responsibility as a member of the surgical team to make sure that surgery is done on the correct anatomical site, especially when it is brain surgery. The circulating nurse is supposed to understand imposing terms like selective amygdala hippocampectomy and know the basics of how it is supposed to be done.

Hospital policy called for the surgeon, the anesthesiologist, the circulating nurse and the scrub nurse or tech to take a “timeout” prior to starting a surgical case for final verification of the correct anatomical site.

The circulating nurse should have available three essential documents, the surgical consent form, the preoperative history and the O.R. schedule. The full extent of the error, that is, a full list of the parts of the brain that were removed from the healthy side, should have been documented by the circulating nurse, and failure to do so was a factor that adversely affected the patient’s later medical course, the patient’s nursing expert said.
Proassurance v. Metheny, __ S.W. 3d __, 2012 WL 6204231 (Ark., December 13, 2012).

Labor & Delivery, Pitocin, Fetal Monitors: Court Finds Evidence Of Nursing Negligence. he mother was admitted to the labor and delivery unit at 10:10 p.m. for
The patient’s nursing ex
induction of labor.

T

pert explained that the Pi-

The baby was delivered vaginally at

5:27 p.m. the next afternoon with the um-
tocin drip is usually con
bilical cord around her neck. She did not
trolled by the labor and de
start breathing on her own for almost seven
livery nurse.
minutes and then began having seizures.

It is increased to increase

A pediatric neuroradiologist, who per-

formed ultrasound scans on the child’s
contractions and decreased
brain and who would later submit an expert
or stopped altogether if the
report for the family in their lawsuit
contractions get too strong,

against the hospital, related the child’s
too long or too close to
problems to asphyxia consistent with bradycardic events prior to her delivery.
gether.

The Court of Appeals of Texas accept-
The Pitocin is to be adjust
ed reports prepared by the family’s experts,
ed based on whether the
an ob/gyn physician, a labor and delivery
baby’s fetal heart tracings
nurse and the pediatric neuroradiologist

which pointed directly at the negligence of
are reassuring or non
the labor and delivery nurses.
reassuring. It is only in-

Family’s Medical Expert creased if the tracings are
When Cytotec has been used for cervi-
reassuring.
cal ripening followed by IV Pitocin for

The nursing expert’s re-

induction of labor, the labor and delivery

nurses have the responsibility to maintain
view of the chart revealed
readable tracings of the fetal heart tones
that the tocotransducer

and the maternal contraction patterns. The
which identifies the begin-

nurses should not start or continue Pitocin
ning and end of each of the

when there are non-reassuring fetal heart

tracings, when the contractions cannot be
mother’s contractions was
monitored or with uterine hyperstimula-
not working for the first
tion. The physician must be notified of
three hours after the mother
non-reassuring fetal heart tracings.
was admitted to the labor

Family’s Nursing Expert

When Pitocin is in use the nurse must
and delivery unit.
see to it that the equipment that monitors
There were also numerous
uterine contractions is recording the moth-
intervals evident from the
er’s contractions, the family’s nursing ex-
fetal monitor tracings of
pert said.

Review of the fetal heart monitor trac-
non-reassuring tones that
ings showed several lengthy intervals of
should have been but were
non-reassuring heart rates. The records
not reported.
further revealed that a nurse increased the
If the physician had been

Pitocin even with late decelerations with

notified of the non-

decreased variability, until it was eventual-

ly decreased and then stopped a few hours
reassuring tones a cesare
before birth by a different nurse, but then
an could have been done
restarted again until the birth with ominous
early on to save the child
tracings showing on the monitor.
Abilene from brain damage.

Reg. Med. Ctr. v. Allen, __ S.W. 3d __, 2012

5951982 (Tex. App., November 29, 2012). COURT OF APPEALS OF TEXAS

November 29, 2012

Labor & Delivery: Nurses Ruled Not Negligent.

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he patient was admitted to the hospital through the E.R. for what were at the

time believed to be labor pains. She was thirty-one years old and thirty -three weeks pregnant and was considered high-risk due to obesity, insulin-dependent diabetes, four previous cesareans and having given birth to very large twins. The labor and delivery nurse immediately started a fetal heart monitor and a tocodynamometer and performed a vaginal exam which showed no dilation of the cervix. The patient’s ob/gyn who had delivered her other children likewise found no dilation and gave orders for monitoring her blood sugars and giving insulin.

Later that morning the patient’s abdominal pain increased and so the nurse paged her physician. The nurse was getting no heart tones on the monitor so she asked another nurse to keep checking for a fetal heartbeat while she kept paging the physician. A few minutes later the physician called and said he was on his way. The nurse documented all this in the chart.

The physician was there within

minutes and delivered the baby by cesarean, but there had been a complete uterine rupture and separation of the placenta.

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

COURT OF APPEALS OF MISSISSIPPI December 11, 2012

The Court of Appeals of Mississippi ruled there was no deviation from the standard of care by the patient’s labor and delivery nurses.
Norris v. Southwest Miss.

Reg. Med. Ctr., __ So. 3d __, 2012 6118005 (Miss. App., December 11, 2012).

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

facility and was met there by his daughterin-law.

The daughter-in-law signed the facility’s admission contract because the patient was quite confused at the time and was not lucid enough to sign any papers.

The daughter-in-law also signed an arbitration agreement separate from the admission contract. The arbitration agreement stipulated that all legal claims including negligence, malpractice and violation of the resident’s rights, but not nonpayment of nursing home fees, would not be decided in a court of law but would be resolved through binding arbitration.

The patient fell in the nursing home

law informed the nursing facility staff that she did not have power of attorney to act on the patient’s behalf, but the nursing facility disregarded that fact and told her that it would not admit the patient if she did not sign all the forms, including the arbitration agreement. Under these circumstances there is no evidence the nursing facility acted in

After his death his daughter as personal

representative of his probate estate sued the nursing facility for negligence.

The nursing facility petitioned the court to dismiss the lawsuit so the case could be decided by arbitration as stipulated in the arbitration agreement signed by the patient’s daughter-in-law.

The Court of Appeals of Ohio ruled the case did not belong in arbitration but should stay on the jury trial docket of the local county court of common pleas.

believe that the daughter-inlaw had authority to enter into a legally binding contract on the patient’s behalf. The nursing facility’s demand that she sign the forms lest her father-in-law be denied admission for necessary rehabilitation did not create any apparent authority for her to bind the

he patient was transported by ambulance from the hospital to a nursing
The patient’s daughter-in
and then passed away four months later.
good faith having reason to

Legal eagle eye newsletter
patient to a contract.

For the Nursing Profession
COURT OF APPEALS OF OHIO

ISSN 1085-4924 December 10, 2012

© 2013/2022 Legal Eagle Eye Newsletter

Indexed in

Cumulative Index to Nursing & Allied

TM

The law strongly favors alternative methods of dispute resolution such as arbitration rather than jury trials in civil court to resolve claims and disputes, but only if both sides have agreed. An agreement to arbitrate is basically a civil contract. For a contract is to be binding both parties must have the capacity and the authority to enter into the contract. The patient did not have the capacity to enter into a binding contract on his own behalf because he was quite confused. The daughter-in-law had no actual

authority to sign a contract as her father-inlaw’s agent. There was nothing to support the nursing facility’s argument that the patient somehow communicated to the facility that he wanted his daughter-in-law to sign for him or even had the mental capacity to make such a communication. A year earlier he had signed a durable power of attorney naming his son as his attorney in fact. The son was the spouse of the daughter-in-law who signed the arbitration agreement, but that fact was irrelevant. The nursing facility, the Court said, made no good faith effort to determine who was authorized to sign or to request that that person discuss the arbitration agreement and make the decision whether or not to sign.

The patient did sign at least one more admission contract upon readmission after a subsequent hospitalization, when he apparently was lucid enough to do so, but the arbitration agreement was not included.

Koch v. Keystone Pointe Health & Rehab,

2012 WL 6098358 (Ohio App., December 10, 2012).

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Correctional

Nursing: Court

Says Nurse Was Deliberately Indifferent.

Two physicians testified that in their opinion, to a

Medication Error: Court Upholds Verdict For Nursing Negligence.

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he eighty year-old nursing home resident suffered from Parkinson’s dis-

ease, dementia and the aftereffects of a stroke at age seventy-four.

She had no history whatsoever of diabetes or hypoglycemia.

She was found unresponsive in her room in the middle of the morning and was rushed to the hospital where her blood glucose was discovered to be 12.

The patient was diagnosed with encephalopathy due to hypoglycemia which the physicians suspected came from oral ingestion of anti-diabetic medication. The patient came out of her coma but never regained her semi-independent functioning and died within fifteen months. The jury awarded the family $1,250,000 as punitive damages, $400,000 for her pain and suffering and $554,000 attorney fees and costs. The US Court of Appeals for the Sixth Circuit (Ohio) upheld the verdict.

Disturbing Conditions At The

Nursing Home

Two former employees of the nursing home described disturbing conditions at the facility, including disorganized medication carts, pre-pouring of medications and falsification of medical records.

There were only two LPNs assigned

for the care of eighty residents. The LPNs

were often rushed and as a result of their haste regularly engaged in the practice of pre-pouring medications. The medication cart was “a mess” most of the time. The wrong pills were in the medication trays. The nurses would borrow medication from one resident and give it to another. At the time of her death more than fifty of this resident’s pills were found to be missing. A supervisor altered records to cover up a medication error. Staff and supervisors routinely filled in “holes” in residents’ medication administration records retroactively at the end of the month.

In the Court’s judgment, the whole situation went beyond simple negligence and justified the jury’s decision to award punitive damages for conscious and malicious disregard of the resident’s well established legal right to a safe environment free from significant medication errors.
Freudeman v. Landing, __ F. 3d __, 2012 WL 6600356 (6th Cir., December 19, 2012).

reasonable degree of medical probability, the nursing facility erroneously administered anti-diabetic medication to the deceased, which caused a severe drop in her blood sugar. Two other physicians, the nursing facility’s experts, could only speculate that malnutrition or a urinary tract infection could have caused the problem. The physicians’ testimony, taken along with the testimony of two former nursing home employees as to the chaotic conditions at the facility, supports the jury’s verdict against the facility. The nursing facility had complete control of the anti -diabetic medication at the facility that was being taken by residents who used such medication, that is, none of the four residents who administered their own medications were on such medication.

It is not a realistic explanation that anti-diabetic medication was given to this resident by a third party. Even if that did happen it would amount to lax supervision of the residents’ environment which itself would be negligence.

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

December 19, 2012

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hen the inmate was booked into the jail his medical history included the

fact he was being treated by a local specialist for autoimmune chronic hepatitis, esophageal varices, anemia, jaundice and splenomegaly.

Early in the a.m. the day after being booked he vomited a large puddle of blood in his cell. He explained to a jail officer that he had gastric ulcers for which he took numerous medications and that he had had twenty-seven units of blood transfusions during the previous month.

The officer phoned one of the jail nurses at home and explained the situation. She told the officer to give him some liquid antacid. He threw up lots more blood again. When she was phoned again the nurse told the officer to give him a Phenergan suppository. When they phoned her again the nurse finally decided to come in to the jail. She had the inmate moved to medical solitary and continued the suppositories. The next day the inmate died from a massive gastrointestinal hemorrhage.

The nurse violated the inmate’s Constitutional rights through deliberate indifference to his serious medical needs.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 12, 2012

The US Court of Appeals for the Fifth Circuit (Texas) placed blame on the nurse for failing at least to alert the physician and for not sending the inmate to the hospital due to the seriousness of his condition. Deputies working for the county sheriff who was responsible for the jail did all they were expected to do and the jail physician was never informed by the nurse what was actually going on with this inmate.
Bolin v. Wichita County, 2012 WL 6194359 (5th Cir., December 12, 2012).

Age Bias: Court Race Discrimination: Nurses Did Sees Grounds For Not Prove Their Case.

CNA’s Lawsuit.

had consistently positive performance n Hispanic CNA in her mid-fifties

reviews and was rewarded with pay raises for more than sixteen years and was recognized for her service by being selected for the Resident Care Specialist Leadership Council at the nursing home.

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Then a new director of nursing took over. A few months later the CNA was suspended and then fired over an incident involving alleged substandard care of a total-care patient.

The CNA sued for race and age discrimination.

The alleged victims contend that the Court can infer racial bias from the fact that their employer did not respond to their complaints as they would have liked. The fact that someone disagrees with you or declines to take your advice, without anything more, does not suggest that they are discriminating against you.

All of the supervisors’ criticisms used non-racial language and there was nothing in the context to suggest the criticisms were racially motivated.

Perhaps their supervisors’ criticisms were unfair, but there is no evidence that the criticisms were motivated by race.

The civil rights laws protect against discrimination, not personal animosity or juvenile behavior.

Over a two-year period the alleged victims made numerous complaints to management, some involving racial issues and others involving general workplace disputes.

The complaints were investigated. Action was taken on some of them and declined as to others. The al-

leged “harassment” was

only negative feedback about lack of teamwork.

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

November 21, 2012

A discriminatory motive can be seen in the DON’s derogatory remarks about the CNA’s age.

These remarks raise serious questions whether the patient-care incident was merely a pretext to move the CNA out because of her age.

UNITED STATES DISTRICT COURT

COLORADO

December 17, 2012

The US District Court for the District of Colorado found evidence to support the allegations of age discrimination.

As soon as she came on board as interim DON the person who would eventually become the new permanent DON started making remarks to the CNA pointing out that she was the oldest CNA in the facility and was “as old as the woodworks,” asking her when she was going to retire, telling her that she was too old for her job and telling her that she was “like an old penny that keeps coming back.”

As interim DON she also reportedly threatened the CNA that she was going to be watching her closely and would fire her as soon as she became permanent DON. The CNA was told this well before the occurrence of the patient-care incident that was used ostensibly to justify her firing.

Alfonso v. SCC Pueblo, 2012 WL 6568468 (D.

Colo., December 17, 2012).

fter complaining about various as-

A pects of their working conditions over

a span of several years, two minority nurses sued their employer for race discrimination.

The lawsuit alleged they were victims of discrimination as well as victims of retaliation for their complaints about what they considered to be discrimination.

The US Court of Appeals for the Seventh Circuit (Illinois) dismissed their case.

More Favorable Treatment Alleged

For Non-Minority Nurses

The two African-American nurses, before filing their lawsuit, had delivered a written petition to human resources at the hospital complaining that Filipino nurses were being given easier assignments, more training and more leadership opportunities. These allegations were apparently investigated by human resources and dismissed as unfounded.

The Court said that these allegations, if they could be proven, would certainly be adequate grounds for a civil rights lawsuit. However, a lawsuit cannot be based simply on vague assertions and innuendo. For a successful discrimination lawsuit the alleged victim must identify a specific person or persons who were treated more favorably, specify the manner in which they were treated more favorably and show that they were similar to the victim in all relevant respects except for not being a racial minority. There was no specific person or persons identified for purposes of comparison in the nurses’ lawsuit. Alleged Harassment

Was Not Racially Motivated

The two nurses were criticized and given negative performance evaluations for lack of teamwork. One of them was called a “trouble maker,” a “cry baby” and a “spoiled child” in one particular meeting with a supervisor and had to leave the meeting in tears.

Even if all this was true, the Court was not able to find any discriminatory racial motivation behind the nurses’ supervisors’ actions, which is a necessary element for them to be able to go forward with a civil rights lawsuit against their employer.

Brown v. Advocate, __ F. 3d __, 2012 WL 5870725 (7th Cir., November 21, 2012).

Skilled Nursing: Court Finds Substandard Procedures,

Flu Immunization: Public Health

Emergency, Nurse Upholds Civil Monetary Penalty.

A skilled nursing facility is required by Federal regulations to ensure that each resident’s drug regimen is free from drugs given in excessive doses, for excessive duration or without adequate monitoring in the presence of adverse consequences which indicate the dose should be reduced or discontinued.

A skilled nursing facility must have a system in place to ensure that labs are drawn when ordered, drawn correctly, processed correctly and the results reported to the patients’ physicians.

Residents on anticoagulant therapy require not only lab tests but also protocols for monitoring and observation by direct caregivers.

Special instructions for Coumadin should be placed in care plans that any subtle signs of injury should be recorded.

At this facility there was a systematic failure to anticipate and plan for the risk of bleeding, to monitor for adverse reactions and to instruct rank-and-file staff on touching and handling residents on Coumadin.

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

December 14, 2012

n 2009 in response to an outbreak of H1N1 influenza the US Secretary of Health and Human Services made a formal declaration that a public health emergency existed and recommended administration of a specific antiviral vaccination.

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The Secretary’s authority came from the US Public Readiness and Emergency Preparedness (PREP) Act of 2005.

The Governor of New York then is-

sued an executive order authorizing state and local authorities to take steps to distribute and administer the vaccine.

A local county health department held a vaccination clinic in a local school where a nurse gave a kindergartener the flu vaccine without either parent’s consent.

The child’s mother sued the county health department for negligence and civil battery. The New York Supreme Court, Appellate Division, dismissed the case.

Continued on page 7.

The US Public Readiness and Emergency Preparedness Act protects licensed health professionals who are authorized to administer or dispense countermeasures in response to a public health or bioterrorism emergency.

The Act does not detract from a licensed healthcare professional’s legal immunity when a countermeasure is administered without consent.

As a Federal law the Act takes precedence over any state statute or rule of the common law that goes contrary.

NEW YORK SUPREME COURT

APPELLATE DIVISION November 21, 2012

Cannot Be Sued. old patient who had been on Coumafter the death of a seventy-eight year-

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din for a blood clot in her leg, survey inspectors decided that the facility’s procedures for laboratory work were out of compliance with Federal standards.

A civil monetary penalty was levied of $3050 per day for more than half a year, the period of time during which the facility’s procedures were deemed out of compliance, more than $587,000, which was upheld by the US Court of Appeals for the Fourth Circuit (North Carolina).

Resident’s Death Sparks Investigation

A nurse saw and charted swelling in the patient’s lower leg and reported it to the patient’s physician. He ordered a Doppler test which found a blood clot. The physician ordered 10 mg of Coumadin plus Lovenox daily and daily PT/INR tests. The care plan was “badly mishandled” according to the Court and the PT/INR testing did not begin for over a month. The first result showed a critically high Coumadin level.

After the same result two days later the physician scaled back the Coumadin to 6 mg. The order for a follow up PT/INR was not properly transcribed and the PT/ INR was delayed two more days until another nurse caught the mistake.

The blood sample was sent back by the lab as too small to test so a nurse tried to draw another the next day. The patient refused the blood draw, which was her right, but any such refusal has to be reported promptly to the physician, which was not done.

The nurse did see and charted unusual bruising around the breast and shoulder, possible signs of a Coumadin overdose, but that also was not reported to the physician as it should have been.

Finally a sample was drawn which showed a critically high Coumadin level and the patient was sent to the hospital. The hospital administered one dose of Vitamin K, but the family then decided to decline further treatment and the patient passed away the next day.
Universal

Healthcare v. Sebelius, 2012 WL 6217619 (4th Cir., December 14, 2012).

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

Nursing Assessment: Damages Awarded For Negligence.

he patient was an insulin-dependent diabetic with a history of drug abuse. During the night he was admitted to the hospital suffering from abdominal pain, back pain and vomiting which had caused severe dehydration.

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The diagnosis was diabetic ketoacidosis which his physician intended to treat by gradually restoring hydration and correcting his blood sugars through careful insulin management.

At 9:00 a.m. the physician determined that his condition was improving and ordered his IV hydration, antibiotics and blood sugar testing continued.

The day nurse performed two head-totoe assessments of the patient. She charted that the abdomen was soft, that there were active bowel sounds and that the patient was voiding yellow urine. He had equal range of motion in his upper and lower extremities, equal and strong extremity strength and a steady gait.

Night Nurse’s Assessments

Significant Findings Not Reported At 7:00 p.m. the night nurse who was an agency nurse took over the patient’s care. Right away the patient’s wife informed the nurse that his legs were numb and that one leg had flopped out of the bed. The nurse told the wife this was caused by his fever. The nurse did not report this to the charge nurse or to a physician.

At 8:15 p.m. the night nurse did her first head-to-toe assessment. She charted that the abdomen was firm and strength was weak in all the extremities. There was no charting as to weakness being equal or unequal and her note for sensation was “unable to assess.” There was no report to the charge nurse or to a physician.

At 3:40 a.m. the patient told the nurse he could not move his legs at all. He had not voided since 1:30 p.m. the previous afternoon, so the nurse inserted a Foley and obtained a large amount of dark urine. Finally the nurse notified the charge nurse who called in a resident. By this time the patient was irreversibly paraplegic from an epidural abscess in the thoracic spine which could not be corrected surgically. The Court of Appeal of Louisiana approved a $1.4 million judgment.
Johnson v. Ray, __ So. 3d __, 2012 WL 6055584 (La. App., December 5, 2012).

There was no error by the judge who assigned fault 100% to the night nurse and held the agency that supplied her to the hospital 100% liable for the $1.4 million judgment.

The day nurse, the hospital and the treating physician were properly dismissed from the lawsuit.

There was no evidence the day nurse breached the standard of care in her nursing assessments or her nursing care of the patient. There was nothing wrong with the treating physician’s initial diagnosis and plan of care for the patient. The patient was already irreversibly paralyzed by the time the hospital’s resident was alerted to the patient’s condition by the night charge nurse. The medical review panel criticized him for delay in obtaining the diagnostic scans, but even if the scans were done and the neurosurgeon came in and operated earlier the outcome would not have changed. When the treating physician was finally contacted during the night by the resident at the hospital, there was likewise nothing he could have done at that point that would have changed the outcome.

COURT OF APPEAL OF LOUISIANA

December 5, 2012

Continued from page 6.

Legal Immunity

Healthcare Professionals

Countermeasures in a Declared

Public Health Emergency

The PREP Act states that a covered person shall be immune from suit and liability under Federal and state law with respect to all claims for loss caused by, arising out of, relating to or resulting from the administration of a covered countermeasure to an individual.

The definition of a covered person includes licensed health professionals or other individuals who are licensed by the state in which the countermeasure was prescribed and authorized to administer and dispense such countermeasures. The only exception to the broad sweep of immunity granted to covered persons with respect to administration of countermeasures is for death or serious injury caused by willful misconduct.

Congress also enacted the Countermeasures Injury Compensation Program creating an administrative agency to handle claims for certain injuries stemming from countermeasures taken in response to the declaration of a public-health emergency, which was intended to be the exclusive legal remedy for persons with such claims.

Lack of Consent Does Not Create

Basis for Legal Action

The Court was not persuaded that an exception should be read into the PREP Act, as argued by the mother in her lawsuit, for situations involving a duly declared public health emergency where a countermeasure is administered without informed consent. A healthcare provider could be held liable if an immunization was given without consent under normal, everyday circumstances.

The Act itself and supporting Federal regulations and an Executive Order from the President make no mention of any intent by Federal lawmakers for the courts to read in such an exception.
Parker v. St.

Lawrence County Public Health Department, __ N.Y.S.2d __, 2012 WL 5869773 (N.Y. App., November 21, 2012).

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

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ployed in a Federally-funded community trict of Georgia ruled the physician and the nurse physician and a nurse practitioner em- The US District Court for the Middle Dis-

health clinic were originally named as defend- practitioner were negligent because their conduct ants in a wrongful-death lawsuit arising out of in signing and handling blank prescription forms the death of the nurse practitioner’s daughter’s violated the clear letter of state law.

friend from acute fentanyl poisoning. Civil liability was appropriate because it is The deceased was found dead with a partial- foreseeable that illegally pre-signed prescription ly dissolved 1600 mcg Actiq lozenge in her forms can be stolen, passed on, forged and used mouth. Post-mortem toxicology also found to obtain controlled substances to be used in an Xanax in her system. illicit manner which can cause a person’s death. The Actiq lozenge was apparently the last of However, the physician and nurse practisix obtained by the deceased from a community tioner were employees of a Federally funded pharmacy using a prescription form signed in community health clinic. Under Federal law the blank by the physician and given to the nurse US Government has had to step in as the defendpractitioner and then stolen by the deceased or ant and try to defend their actions as they cannot given to the deceased by the nurse practitioner’s be sued individually even if they were negligent

legal eagle eye Newsletter

For the Nursing Profession

daughter. and their negligence caused harm, a legal techni-

The daughter was charged with criminal cality not available to caregivers in the private offenses in connection with the death but died sector or in many state-run healthcare settings. herself before her case went to court. The Government’s argument will be that the The investigation revealed that the deceased nurse practitioner’s daughter’s criminal act suphad previously come into possession of three plying the form to her friend was an intervening other blank prescription forms from the same cause that relieves the Government from liabilclinic signed by the same doctor and had used ity, but the Court has not yet ruled on that issue. them to get drugs before she met her end.
Eaton v. US, 2012 WL 6203002 (M.D. Ga., December

12, 2012).

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

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remark to one coworker that was nurse was fired after she made a

interpreted as a threat to shoot another coworker over a remark he made to her about her husband leaving her.

After being fired she sued the hospital for sexual harassment and for retaliation for reporting sexual harassment. The sexual harassment, she said, involved the coworker whom she later threatened being a little too friendly, smiling and staring at her too much and making one vulgar sexually-oriented remark to her.

The US Court of Appeals for the Tenth Circuit (Oklahoma) dismissed the nurse’s case.

A lawsuit for a sexually hostile work environment can only be based on conduct that permeates the workplace with intimidation, ridicule and insult.

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

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

December 19, 2012

Garden-variety boorish, immature, juvenile and annoying behavior is not uncommon in the American workplace and does not give grounds for a lawsuit for sexual harassment, the Court said. Another important factor was that the nurse was the perpetrator’s supervisor, not the other way around. The most important factor in the Court’s mind was that the hospital had legitimate, non-discriminatory and nonretaliatory grounds to terminate the nurse, her threat of violence against a coworker.

She reportedly told a coworker she owned a .357 magnum handgun and knew how to use it and stated that the kind of remark another coworker voiced to her about her marriage was the kind of thing that gets people shot.

Gaff v. St. Mary’s Reg. Med. Ctr., 2012 WL 6604579 (10th Cir., December 19, 2012).

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