Fluent Essays

Directions: Read the two case summaries provided  here . The case summaries are on page 2. Once you read the two case summaries, follow the instructions below. Initial Post 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 two scholarly sources. T he fifteen year-old patient was scheduled for surgery on the right side of his brain to remove a right tem- poral lobe lesion that was believed to be causing his epileptic seizures. The surgery began with the sur- geon 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 pro- cedure 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 incon- sequential gaffe. The patient recuperated, left the hospital, returned to his regular activi- ties 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. When the full magnitude of the consequences came to light a lawsuit was filed which resulted in a $11 mil- lion judgment which was affirmed by the Supreme Court of Arkansas. A circulating nurse has a le- gal 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 infor- mation. SUPREME COURT OF ARKANSAS December 13, 2012 Operating Room: Surgical Error Blamed, In Part, On Circulating Nurse’s Negligence. 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 surgi- cal 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 se- lective amygdala hippocampectomy and know the basics of how it is sup- posed to be done. Hospital policy called for the sur- geon, the anesthesiologist, the circulat- ing nurse and the scrub nurse or tech to take a “timeout” prior to starting a sur- gical 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 pa- tient’s nursing expert said. Proassur- ance v. Metheny, __ S.W. 3d __, 2012 WL 6204231 (Ark., December 13, 2012). January 2013 Volume 21 Number 1 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 Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 2 Labor & Delivery, Pitocin, Fetal Monitors: Court Finds Evidence Of Nursing Negligence. T he mother was admitted to the labor and delivery unit at 10:10 p.m. for induction of labor. The baby was delivered vaginally at 5:27 p.m. the next afternoon with the um- bilical cord around her neck. She did not start breathing on her own for almost seven minutes and then began having seizures. A pediatric neuroradiologist, who per- formed ultrasound scans on the child’s brain and who would later submit an expert report for the family in their lawsuit against the hospital, related the child’s problems to asphyxia consistent with bra- dycardic events prior to her delivery. The Court of Appeals of Texas ac- cepted reports prepared by the family’s experts, an ob/gyn physician, a labor and delivery nurse and the pediatric neurora- diologist which pointed directly at the neg- ligence of the labor and delivery nurses. Family’s Medical Expert When Cytotec has been used for cervi- cal ripening followed by IV Pitocin for induction of labor, the labor and delivery nurses have the responsibility to maintain readable tracings of the fetal heart tones and the maternal contraction patterns. The nurses should not start or continue Pitocin when there are non-reassuring fetal heart tracings, when the contractions cannot be monitored or with uterine hyperstimula- tion. The physician must be notified of non-reassuring fetal heart tracings. Family’s Nursing Expert When Pitocin is in use the nurse must see to it that the equipment that monitors uterine contractions is recording the mother’s contractions, the family’s nursing expert said. Review of the fetal heart monitor trac- ings showed several lengthy intervals of non-reassuring heart rates. The records further revealed that a nurse increased the Pitocin even with late decelerations with decreased variability, until it was eventu- ally decreased and then stopped a few hours before birth by a different nurse, but then restarted again until the birth with ominous tracings showing on the monitor. Abilene Reg. Med. Ctr. v. Allen, __ S.W. 3d __, 2012 5951982 (Tex. App., November 29, 2012). The patient’s nursing ex- pert explained that the Pito- cin drip is usually con- trolled by the labor and de- livery nurse. It is increased to increase contractions and decreased or stopped altogether if the contractions get too strong, too long or too close to- gether. The Pitocin is to be ad- justed based on whether the baby’s fetal heart trac- ings are reassuring or non- reassuring. It is only in- creased if the tracings are reassuring. The nursing expert’s re- view of the chart revealed that the tocotransducer which identifies the begin- ning and end of each of the mother’s contractions was not working for the first three hours after the mother was admitted to the labor and delivery unit. There were also numerous intervals evident from the fetal monitor tracings of non-reassuring tones that should have been but were not reported. If the physician had been notified of the non- reassuring tones a cesar- ean could have been done early on to save the child from brain damage. COURT OF APPEALS OF TEXAS November 29, 2012 The Court of Appeals of Mississippi ruled there was no deviation from the stan- dard of care by the patient’s labor and de- livery nurses. Norris v. Southwest Miss. Reg. Med. Ctr., __ So. 3d __, 2012 6118005 (Miss. App., December 11, 2012). 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 T 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 hav- ing given birth to very large twins. The labor and delivery nurse immedi- ately started a fetal heart monitor and a tocodynamometer and performed a vaginal exam which showed no dilation of the cer- vix. The patient’s ob/gyn who had deliv- ered her other children likewise found no dilation and gave orders for monitoring her blood sugars and giving insulin. Later that morning the patient’s ab- dominal pain increased and so the nurse paged her physician. The nurse was get- ting 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 physi- cian called and said he was on his way. The nurse documented all this in the chart. The physician was there within min- utes and delivered the baby by cesarean, but there had been a complete uterine rup- ture and separation of the placenta. Labor & Delivery: Nurses Ruled Not Negligent. Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 3 Clip and mail this form. Or if you prefer, order online at www.nursinglaw.com. Print $155/year _____ Online $95/year _____ Phone 1-877-985-0977 Check enclosed _____ Bill me _____ Credit card _____ Fax (206) 440-5862 Visa/MC/AmEx/Disc No. ________________________________________ Signature _____________________________ Expiration Date __________ Name _______________________________________________________ Organization _________________________________________________ Address _____________________________________________________ City/State/Zip _________________________________________________ Email (If you want Online Edition*) _______________________________ *Print subscribers also entitled to Online Edition at no extra charge. Mail to: Legal Eagle Eye PO Box 4592 Seattle WA 98194-0592 Legal eagle eye newsletter For the Nursing Profession ISSN 1085-4924 © 2012/2013 Legal Eagle Eye Newsletter Indexed in Cumulative Index to Nursing & Allied Health Literature TM Published monthly, twelve times per year. Mailed First Class Mail at Seattle, WA. E. Kenneth Snyder, BSN, RN, JD Editor/Publisher PO Box 4592 Seattle, WA 98194–0592 Phone (206) 440-5860 Fax (206) 440-5862 [email protected] www.nursinglaw.com The law strongly favors alternative methods of dispute resolution such as arbi- tration 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-in- law’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 ca- pacity 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 arbitra- tion 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 ap- parently 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). T he patient was transported by ambu-lance from the hospital to a nursing facility and was met there by his daughter- in-law. The daughter-in-law signed the facil- ity’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 agree- ment stipulated that all legal claims includ- ing negligence, malpractice and violation of the resident’s rights, but not non- payment 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 and then passed away four months later. 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 stipu- lated 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. Nursing Home Admission: Daughter-In-Law Had No Authority To Sign, Arbitration Agreement Void. The patient’s daughter-in- 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 dis- regarded 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 circum- stances there is no evi- dence the nursing facility acted in good faith having reason to believe that the daughter-in-law had author- ity to enter into a legally binding contract on the pa- tient’s behalf. The nursing facility’s de- mand that she sign the forms lest her father-in-law be denied admission for necessary rehabilitation did not create any apparent au- thority for her to bind the patient to a contract. COURT OF APPEALS OF OHIO December 10, 2012 Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 4 Medication Error: Court Upholds Verdict For Nursing Negligence. Two physicians testified that in their opinion, to a reasonable degree of medi- cal probability, the nursing facility erroneously admin- istered anti-diabetic medi- cation 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 testi- mony 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 ad- ministered their own medi- cations were on such medi- cation. It is not a realistic explana- tion that anti-diabetic medi- cation was given to this resident by a third party. Even if that did happen it would amount to lax super- vision of the residents’ en- vironment which itself would be negligence. UNITED STATES COURT OF APPEALS SIXTH CIRCUIT December 19, 2012 T he eighty year-old nursing home resi-dent suffered from Parkinson’s dis- ease, dementia and the aftereffects of a stroke at age seventy-four. She had no history whatsoever of dia- betes or hypoglycemia. She was found unresponsive in her room in the middle of the morning and was rushed to the hospital where her blood glu- cose was discovered to be 12. The patient was diagnosed with en- cephalopathy 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 func- tioning 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 medica- tion 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 supervi- sors routinely filled in “holes” in residents’ medication administration records retroac- tively 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 mali- cious disregard of the resident’s well estab- lished legal right to a safe environment free from significant medication errors. Freude- man v. Landing, __ F. 3d __, 2012 WL 6600356 (6th Cir., December 19, 2012). W hen the inmate was booked into the jail his medical history included the fact he was being treated by a local spe- cialist 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 liq- uid antacid. He threw up lots more blood again. When she was phoned again the nurse told the officer to give him a Phener- gan 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 supposi- tories. The next day the inmate died from a massive gastrointestinal hemorrhage. Correctional Nursing: Court Says Nurse Was Deliberately Indifferent. The nurse violated the in- mate’s Constitutional rights through deliberate indiffer- ence 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 sher- iff who was responsible for the jail did all they were expected to do and the jail phy- sician was never informed by the nurse what was actually going on with this in- mate. Bolin v. Wichita County, 2012 WL 6194359 (5th Cir., December 12, 2012). Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 5 Age Bias: Court Sees Grounds For CNA’s Lawsuit. A n Hispanic CNA in her mid-fifties had consistently positive performance reviews and was rewarded with pay raises for more than sixteen years and was recog- nized for her service by being selected for the Resident Care Specialist Leadership Council at the nursing home. 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 dis- crimination. 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 in- terim DON the person who would eventu- ally become the new permanent DON started making remarks to the CNA point- ing out that she was the oldest CNA in the facility and was “as old as the wood- works,” 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). A discriminatory motive can be seen in the DON’s derogatory remarks about the CNA’s age. These remarks raise seri- ous 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 Race Discrimination: Nurses Did Not Prove Their Case. A fter complaining about various as-pects of their working conditions over a span of several years, two minority nurses sued their employer for race dis- crimination. The lawsuit alleged they were victims of discrimination as well as victims of re- taliation for their complaints about what they considered to be discrimination. The US Court of Appeals for the Sev- enth 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 dis- missed 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). The alleged victims con- tend that the Court can infer racial bias from the fact that their employer did not re- spond to their complaints as they would have liked. The fact that someone dis- agrees with you or declines to take your advice, without anything more, does not suggest that they are dis- criminating 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 moti- vated by race. The civil rights laws pro- tect against discrimination, not personal animosity or juvenile behavior. Over a two-year period the alleged victims made nu- merous complaints to man- agement, some involving racial issues and others in- volving general workplace disputes. The complaints were in- vestigated. Action was taken on some of them and declined as to others. The alleged “harassment” was only negative feedback about lack of teamwork. UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT November 21, 2012 Legal Eagle Eye Newsletter for the Nursing Profession January 2013 Page 6 Flu Immunization: Public Health Emergency, Nurse Cannot Be Sued. I 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. 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 dis- tribute 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 vac- cine 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 Prepared- ness Act protects licensed health professionals who are authorized to administer or dispense countermea- sures in response to a pub- lic health or bioterrorism emergency. The Act does not detract from a licensed healthcare professional’s legal immu- nity when a countermea- sure is administered with- out consent. As a Federal law the Act takes precedence over any state statute or rule of the common law that goes con- trary. NEW YORK SUPREME COURT APPELLATE DIVISION November 21, 2012 Skilled Nursing: Court Finds Substandard Procedures, Upholds Civil Monetary Penalty. A fter the death of a seventy-eight year-old patient who had been on Cou- madin for a blood clot in her leg, survey inspectors decided that the facility’s proce- dures for laboratory work were out of com- pliance 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 facil- ity’s procedures were deemed out of com- pliance, 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 Dop- pler 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 an- other 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 re- ported 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 Vi- tamin 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). A skilled nursing facility is required by Federal regula- tions to ensure that each resident’s drug regimen is free from drugs given in ex- cessive doses, for exces- sive duration or without adequate monitoring in the presence of adverse conse- quences 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 re- ported to the patients’ phy- sicians. Residents on anticoagu- lant therapy require not only lab tests but also pro- tocols for monitoring and observation by direct …