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Heroin Overdose Death: Court Rules Hospital Emergency Department Was Not At Fault.    

  The fact the hospital did not have a policy at the time specifically for the care of post-naloxone patients in the emergency department did not cause this patient’s death. It was only speculation that keeping this patient a few minutes longer or monitoring her more closely would have pre-vented the tragic outcome of her case.

  After this incident the hospital adopted a new protocol for the care of post-naloxone patients in the emergency department. Post-naloxone patients are now to be kept at least two hours for observation and must attain and maintain at least 90% O2 saturation on room air for at least thirty minutes before discharge.

  However, it is only speculation that having such a policy before the fact would have saved this patient’s life, and speculation is not sufficient grounds to hold a healthcare provider liable in a negligence lawsuit.  In addition, the law cannot look upon a subsequent re-medial measure as a statement of the standard of care before the fact.  There was no problem with the nurse’s discharge instructions. UNITED STATES DISTRICT COURT NEW MEXICO October 24, 2017

  A young woman was discharged into the custody of a police officer after treatment in the hospital’s emergency department for a heroin overdose. The officer took her to the county juvenile detention facility. No nurse was on duty at the facility during the night. When she stopped breathing and became unresponsive several hours into her incarceration staff called 911. Paramedics brought the patient back to the hospital but she died within several hours. The medical examiner established the cause of death as heroin toxicity.

  Under the direction of the emergency department physician the patient was given Narcan/naloxone and Ativan/ lorazepam as treatment for a heroin overdose.  She was at the hospital about an hour and forty minutes.

  The emergency department nurse manager could recall during her pretrial deposition testimony that she personally went over the discharge instructions with this patient and the police officer who was taking her into custody.  However, the nurse manager could not specifically recall exactly what she said to the patient before allowing her to leave the department.  Nevertheless, the printed discharge instructions that the nurse manager showed and explained to the patient and the police officer were a matter of record in the patient’s chart.  The discharge instructions were titled "Heroin Abuse and Withdrawal."  The instructions indicated that respiratory depression progressing to cessation of breathing and death were possible complications after heroin use.

  Shallow breathing was identified as a sign to watch for that the patient was still affected by having taken heroin. The patient was told to return or to be returned to the emergency department if the signs of a heroin overdose reappeared after she left the hospital.  

  The nurse had made a note on the copy in the file that the patient herself had verbalized an understanding of the discharge instructions.

  For the case against the hospital the family’s lawyers hired a physician as their medical expert.  However, his testimony was not accepted by the US District Court for the District of New Mexico and the Court affirmed a summary judgment of dismissal in favor of the hospital.

  First and foremost the family’s medical expert stated, erroneously in the Court’s judgment, that the hospital should be held liable for failing to have a policy for treatment of emergency department heroin overdose cases.  It was only speculation, the patient’s expert had to admit, that having a policy for treatment of heroin overdose cases would have had any real effect on this patient’s outcome.  Keeping this patient a specific number of minutes longer per a hospital policy would not necessarily have changed the outcome.  20/20 hindsight is not the legal standard for judging the reasonableness of a healthcare provider’s judgment and actions under the circumstances that existed at the time of the provider’s interaction with the patient.

  In her pretrial deposition, in addition to her testimony about her personal inter-action with this patient as a nursing care-giver, the emergency department nurse manager testified that after this incident the hospital adopted a new protocol for the care of post-naloxone patients in the emergency department.  Such patients are now to be kept in the emergency department for observation for at least two hours. They must also attain and maintain an O2 saturation of at least 90% on room air for at least thirty minutes before they can be discharged.

  A centuries-old principle of the common law disallows as evidence of negligence so-called subsequent remedial measures taken after the fact. The policy of the law has been for ages not to allow fear of potential implications in a civil negligence lawsuit to inhibit beneficial changes being made after the fact of an adverse incident.  In this case, in the context of a summary judgment hearing, the Court did consider the fact the hospital changed its ways after the fact, evidence that would not have been brought before a jury in a civil trial.  The Court considered that evidence only to point out that it was basically not relevant. Even if the new post-naloxone protocol was a correct statement of the standard of care, it would still be pure speculation to conclude that not keeping and monitoring this patient nineteen minutes longer was the cause of her death.

  The bottom line was that the nurse manager’s discharge instructions fully in-formed the patient and the officer of the potential risks and what to look for. It was not the hospital’s fault the patient did not return or was not promptly returned to the hospital. Bevan v. Valencia, 2017 WL 4797788 (D. N.M., October 24, 2017).

Coumadin Overdose: Court Finds No Negligence By Physician’s Office Nurse.

  The patient apparently continued her 5 mg Coumadin daily after the dosage was changed to 4 mg every other day, allegedly leading to abnormal spinal cord bleeding that ultimately caused her demise.

  There was no violation of the standard of care by the physician’s office nurse in communicating the medication change to the patient. The nurse documented in the chart that the new prescription was sent to the pharmacy. The nurse documented in the chart that she contacted the patient, explained the new dosing and got a verbalization back from the patient that she understood.

  It would not have been appropriate to contact a family member to help with the patient’s medications. Her mediations were confidential information that could not be shared with others without the patient’s expressed permission  The patient was fully competent mentally and had proven she could manage her own medications, including at least eleven prior changes in the Coumadin dosage without any problem. APPELLATE COURT OF ILLINOIS November 9, 2017

  The eighty year-old patient died in the hospital with a spinal cord hematoma and paralysis of the lower extremities five months after her physician’s office nurse allegedly failed to get the patient started on a lowered dose of her Coumadin blood-thinning medication.   The patient had been on the Coumadin for years as prophylaxis for recurring blood clots in her lungs.  The patient also had medical diagnoses of hypertension, coronary artery disease, congestive heart failure, chronic restrictive lung disease, chronic kidney disease and hip-joint osteoarthritis.

   The Appellate Court of Illinois found no reason to disturb the jury’s verdict of no negligence by the nurse in the physician’s office and the physician himself.  The Court’s ruling was based in part on weaknesses in the proof the family had to support their wrongful death lawsuit.  Specifically the Court was not impressed with the family’s physician expert witness's sparse background in the management of patients on Coumadin.

  However, the most persuasive evidence in the nurse’s favor was the testimony of the defense nursing expert. The expert herself had communicated with patients hundreds of times in her professional nursing career regarding changes in their medications.  It was within the legal standard of care, the defense nursing expert testified, for the physician’s nurse to phone the patient and explain that a lower dose had been ordered by the doctor based on the latest INR result, that a new prescription had been sent to the pharmacy and that the patient was to start taking the new pills and stop taking the old ones.

  Having the patient repeat the instructions the nurse had just given over the phone was sufficient to satisfy the standard of care. This patient was mentally competent, independent with her medications and had proven herself able to manage eleven prior dosage changes with the Coumadin. Howard v. Memorial, 2017 WL 5202948 (Ill. App., November 9, 2017).


E.R. Nursing: Court Sees No Liability.

  The emergency physician was fully aware of the patient’s complaints of abdominal pain. The nurses did not have to reiterate that to the physician.  Even if the nurses had pursued the nursing chain of command to try to block the patient’s discharge while she was still in pain, there is no proof the nurse’s actions would have changed the outcome. COURT OF APPEALS OF GEORGIA October 26, 2017

  The patient was found dead in her apartment three days after two separate visits the same morning to the same emergency department.  Severe abdominal pain had brought her to the emergency department.   She had a history of gastric bypass surgery years before.  

  The cause of death was ruled small intestine ischemia due to volvulus or twisting of the small intestine.   The family sued the hospital and the physicians for negligence and for violation of the US Emergency Medical Treatment and Active Labor Act.

  The Court of Appeals of Georgia dismissed the case as to the hospital’s nurses.  The nurses fulfilled their duty by eliciting reports from the patient as to her current pain levels and documenting her pain reports in her chart. The physician was fully aware that the patient was still reporting a high level of pain when the physician discharged her.

  Even if the nurses had tried to stop or delay the patient’s discharge by going up the nursing chain of command, there is no solid proof that the emergency physician or another physician at the hospital would have kept her in the hospital longer and that that would have changed the outcome. Kidney v. Med. Ctr., __ S.E. 2d __, 2017 WL 4837392 (Ga. App., October 26, 2017).


Chemical Dependency, Psych Issues: Court Lets Nurse’s Disability Case Go Forward.

  The law sees an employee’s chemical dependency and/or psychiatric issues as disabilities for which the employer may be required to provide reasonable accommodation.  An employer must accommodate an employee’s disability, if a reasonable accommodation is feasible, and cannot discriminate against an employee because the employee has chemical dependency or psychiatric issues.

  Nevertheless, unprofessional or criminal behavior by an employee that can be traced to chemical dependency or psychiatric problems is not something an employer is required to tolerate or accommodate.

  It is not clear in this nurse’s case from individuals’ personal recollections or from the nurse’s personnel file that the decision to fire her was based on her behavior rather than her admissions of drug and emotional problems and her attempts to get help.  The decision to fire her in fact may have predated her last binge of inappropriate acting out, which would support her legal case. UNITED STATES DISTRICT COURT ILLINOIS November 8, 2017  

  A nurse had been working in the hospital’s emergency department about two years before she had to take a month off work for treatment for dependency on pain medication.  Her supervisor was under the impression she took this time off for emotional problems.  The real reason was not documented in her personnel file at the time.  She returned to work for another year without incident, but then after a series of personal and family crises the nurse started acting out with a gambling problem that ruined her finances.

  She asked for and got time off for treatment for a gambling addiction but never actually entered treatment.  When she returned to work this time she was still gambling, actually placing bets while on duty, and started making suicidal statements to coworkers.  Then she went on a cocaine binge, was stopped for driving under the influence and was arrested for illegal drug and drug paraphernalia possession.

  Her supervisors made her get a psych evaluation. She was diagnosed with a major depressive disorder and pathological gambling.  Her supervisors told her she was going to be fired for unprofessional conduct.  She responded that she was in outpatient treatment and would agree to inpatient treatment as a "last chance" before being fired.  She was eventually fired, ostensibly for off-duty conduct unbecoming a registered nurse, that is, possession of crack cocaine and driving under the influence.

  The US District Court for the Northern District of Illinois refused the hospital’s request for summary judgment of dismissal of the nurse’s disability discrimination suit.  The real reason for the nurse’s firing is still not clear. Her right to treatment for chemical dependency or psychiatric issues without employer reprisals is protected by the disability discrimination laws, while her inappropriate behavior is not protected by law even if it was caused by chemical dependency or psychiatric problems. Needham v. McDonald, 2017 WL 5171197 (N.D. Ill., November 8, 2017).


Workers Comp: Partial Disability Rating Does Not Rule Out Disability Discrimination.

  The nurse received a permanent partial disability rating and a settlement of her workers compensation case for an on-the-job lumbar sprain at the hospital.  As to her rehiring the hospital was still required to consider whether the actual lifting restrictions from her physician were incompatible with the demands of the positions as floor nurse for which she had applied. UNITED STATES COURT OF APPEALS SIXTH CIRCUIT November 20, 2017  

  When the nurse was ready to return to work at the hospital after time off for a lumbar sprain injury at the hospital she submitted applications for more than sixty available floor nursing positions.   However, unit nursing managers were sent an email by human resources directing them not to consider her for rehiring because she had a partial permanent disability rating from her workers compensation case from the lumbar sprain.  

  The US Court of Appeals for the Sixth Circuit (Tennessee) ruled the nurse’s disability discrimination case against the hospital could go forward.  It was not appropriate to rule out rehiring her as a floor nurse categorically on the basis of a workers compensation permanent partial disability rating.

  The hospital should have looked at the lifting restrictions imposed by the nurse’s physician in light of the hospital’s expectations and the actual physical demands of the floor nursing positions for which the nurse had applied for rehiring. Vaughn v. Med. Ctr., __ Fed. Appx. __, 2017 WL 5564677 (6th Cir., November 20, 2017).


Diversion Of Narcotics: Nurse Disqualified From Direct Care Employment.  

  There is no eyewitness who can testify that the nurse consumed the narcotic pills or sold them or even took them away from the facility.  There is proof she misappropriated residents’ property by fraudulently ordering and receiving more than 900 pain killers that were never given to residents. MISSOURI COURT OF APPEALS October 31, 2017  

  A technician from the pharmacy testified that the customary practice was for the nursing home’s nurses to phone or fax prescriptions to the pharmacy.  The technician said he spoke with and received faxes from a nurse named Melissa for prescription orders for more than nine-hundred painkiller pills. There was only one Melissa working as a nurse at the nursing home.

  A certified medication aide at the nursing home also testified.  He said it was the customary practice at the nursing home after a medication order was discontinued for him to take the card out of the medication cart and give it to the charge nurse to send to the pharmacy to destroy.  The pharmacy could not account for that being done with the cards for a number of residents.

  The Missouri Court of Appeals ruled the evidence was sufficient that the nurse ordered medications in residents’ names that were never given to the residents. That alone amounted to misappropriation of residents’ property, an offense for which the perpetrator can be reported to the State as someone to be listed as disqualified from further care-giving employment. Stewart v. Dept., __ S.W. 3d __, 2017 WL 49308687 (Mo. App., October 31, 2017).


Contraception: Nurse Has No Religious Discrimination Case.  

  When an employee has a genuine religious practice that conflicts with a requirement of employment, the employer, after being notified of the conflict, must offer the employee reasonable accommodation, unless providing the accommodation sought by the employee would cause the employer to experience an undue hardship.

  To sue for religious discrimination based on failure to offer reasonable accommodation, an employee must show the court that he or she holds a certain bona fide religious belief of which he or she informed the employer but was nevertheless disciplined for failing to comply with the employer’s requirement in conflict with the employee’s religious beliefs.  The employee is entitled to a reasonable accommodation that does away with the conflict with his or her religious beliefs, but not necessarily the accommodation the employee wants.

  In any discrimination case the alleged victim must also be able to show that he or she was meeting the employer’s reasonable performance expectations for the employee’s position. UNITED STATES DISTRICT COURT NEW YORK November 9, 2017  

  A staff nurse was promoted to charge nurse after six years at the clinic.  Soon after her promotion her performance appraisals in her new position called for improvement in dealing with subordinates and interacting with patients as well as planning and carrying out her new supervisory responsibilities. After she failed several times to meet goals that had been set for her improvement she was demoted back to staff nurse. The nurse found employment elsewhere and quit.

  After she quit her job she sued for religious discrimination.  At the same time as the nurse’s new position was not working out for her her employer had added family planning and contraceptive services at her clinic.  As an evangelical Christian the nurse had religious objections to personally advising patients about or providing patients with contraceptives. She handed in a formal request that she not be required to be involved in these activities.

  The US District Court for the Southern District of New York dismissed her case. The Court said she was in the right to fault her superiors for never giving her a formal response to her formal request for accommodation to her religious beliefs.  However, the Court ruled against her case because in fact she was never actually required to distribute contraceptives or provide patient education as to contraceptives or provide direct care to any family planning clinic patient.

  Medical assistants in the family planning clinic were told not to bring questions from their patients to this nurse but to ask a physician instead. Further, the nurse was never required to count, account for or dispense contraceptive medications. She was allowed to delegate those tasks to other nurses.  Although higher-ups at the hospital could have done a better job communicating affirmatively that they did intend to honor the nurse’s request for religious accommodation, her request was actually honored and her rights were fully protected. Mereigh v. Hospital, 2017 WL 5195236 (S.D.N.Y., November 9, 2017).


Dementia Care: Court Faults Assisted Living Facility.  

  It is not the final word that the resident’s admission contract with the facility was only for assisted living and expressly excluded care for behavioral problems or issues associated with Alzheimer’s disease or other dementias.

  The evidence is clear that this assisted living facility routinely accepted residents with Alzheimer’s disease.  When a resident’s dementia became too severe the resident was transferred to a more appropriate placement.  However, that implies that the transition from moderate to severe dementia would occur while an individual continued as an assisted living resident. In fact, before she fell out of a third-story window, this resident had been sent to an inpatient behavioral center for a two-week evaluation for agitation, aggressiveness and wandering, and then was returned to the assisted living facility.

  When her continued presence in assisted living was no longer appropriate, the director should have had the nursing director immediately make arrangements to get her into a placement that met her needs. COURT OF APPEAL OF LOUISIANA November 15, 2017  

  One afternoon an eighty-four year-old woman who was living in an assisted living apartment was found in the parking lot of the building looking for her car. She was redirected back into the building and participated in scheduled activities later that day.  She was in her room at the 9:00 p.m. bed check, but was not there at 11:00 p.m.  Staff searched and found her outside lying unconscious on the ground, apparently having fallen out of the third-floor window of her apartment. Her injuries included leg, hip and rib fractures and head trauma causing intracranial bleeding.

  After the resident passed away two and one-half years later her sister sued the facility on the family’s behalf.  The medical review panel rejected the lawsuit. However, the Court of Appeal of Louisiana reinstated it, finding that grounds existed for allegations of negligence against the facility.

  Her admission contract with the facility expressly excluded behavioral services and dementia care and the facility was not licensed as a nursing home. However, the Court ruled those facts did not limit the legal duties that were owed to this resident who clearly needed a much higher level of care than simple assisted living.

  Before her fall the resident’s agitation and frequent wandering had prompted a two-week stay for evaluation at a behavioral health center. The diagnosis was dementia so severe that communication with her was almost meaningless. Nevertheless she was returned to assisted living.  Once this resident’s needs were known, close or constant monitoring for wandering and extra nursing services had to be provided, even if special nursing help had to be brought in, to ensure that her wandering was not a threat to her safety, while placement elsewhere was arranged.

  A legal twist potentially in the facility’s favor is that the bar has been raised so that the family’s case will fail at trial with-out expert nursing testimony as to the correct diagnosis, assessment and interventions that would have prevented her fall. In re Lyons, __ So. 3d __, 2017 WL 5473698 (La. App., November 15, 2017).


Patient Assault On Caregiver: Residential Facility Not Liable.  

  A healthcare facility has the legal duty to protect any person lawfully on its premises from foreseeable injurious or criminal conduct by third parties.  That legal duty extends to protecting facility employees from foreseeable wrongful conduct by the facility’s patients.

  Liability in a civil lawsuit hinges on the victim of a patient assault being able to show the court proof that the wrongdoer’s conduct was foreseeable.  The defendant healthcare facility is entitled to judgment in its favor if it can show that the facility had no notice of any prior similar incidents or aggressive behavior by the patient that would lead the facility to anticipate an incident like that which injured the victim and prompt the facility to take protective measures.

  Foreseeability of harm in these cases depends upon the patient’s behavior while institutionalized and the assessments conducted by facility caregivers.   In this case the nurses had observed no prior aggressive behavior by this resident that pointed to a danger posed by him to other caregivers. NEW YORK SUPREME COURT APPELLATE DIVISION October 26, 2017  

  A personal-care aide worked in a facility that provides residential care to developmentally disabled adults.  A patient with whom she was assigned to sit suddenly and unexpectedly became combative and assaulted her.  

  The aide sued the facility for damages, alleging that the facility was negligent in failing to anticipate the potential for an assault and take steps to protect her from the resident’s behavior.  An employee’s lawsuit is not allowed against the employer for accidental injuries in the course of employment. Workers compensation is the exclusive remedy allowed by law for on-the-job accidents. However, many jurisdictions allow an employee to sue if the employee’s injuries result from a physical assault on the job.

  The New York Supreme Court, Appellate Division, ruled the facility was not negligent and dismissed the aide’s lawsuit. The aide may have been telling the truth claiming that she herself was aware that the resident in question had a history of assaultive behavior toward caregivers.  However, according to the Court, that did not translate into an awareness by the facility’s nursing staff responsible for resident assessments and care planning that this resident posed any threat of violence toward caregivers. 

  A nurse involved in the resident’s ad-mission testified that he refused to be examined by the nurses and was agitated and verbally abusive.  That nurse was called to testify because she had written a progress note as to the patient’s attitude when he was first admitted.  The nurse clarified that her progress note did not refer to physically threatening behavior.  It only meant that he had been difficult and had pushed a nurse’s hand away and avoided being touched during his physical examination.   A physician who testified as an expert witness for the facility stated that the nurses’ recollections and the notes in the chart would not justify treating the resident as a threat to others in the facility. The facility could not have anticipated a physical assault on a caregiver. Boudreaux v. Memorial, __ N.Y.S. 3d __, 2017 WL 4813422 (N.Y. App., October 26, 2017).

IM Injection: Court Accepts Nurse’s Testimony.  

  An intramuscular injection of pain medication was ordered by the emergency department physician for a patient who came in with a complaint of a severe headache.  In his lawsuit against the hospital the patient testified that it felt like a bolt of electricity down his left leg when he got the injection from the nurse and that pain in his left leg had continued from that moment to the present day. The patient’s lawsuit claimed negligence by the nurse in locating the correct spot for the injection, causing a sciatic nerve injury.

  The nurse, however, testified she gave the injection in the right upper quadrant of his right hip, not the left.  An entry was made electronically in the chart at the time by the nurse that the injection was given in the "RDG," which the nurse testified stands for right dorsal gluteal.  The Court of Appeals of Texas approved the jury’s verdict of no negligence, based on a judgment the nurse gave the injection on the right side, not the left. Rodgers v. Med. Ctr., 2017 WL 5486043 (Tex. App., November 16, 2017).

  The patient got an IM injection of allergy medication from a nurse at an outpatient clinic. Although her chart reflected no report of pain at the time, she later claimed she immediately felt shooting pains down her left leg. Despite a normal EMG from a neurologist to whom her physician sent her the patient underwent a lengthy course of treatment with an out-of-state physician who specializes in diagnosing persons with chronic regional pain syndrome and testifying for them in court.   The jury in the patient’s lawsuit found no negligence by the nurse.

  During her testimony the nurse pointed to the gluteus medius on an anatomical chart as the location where she gave the injection.  The nurse and the patient’s own nursing expert testified that that, and not the gluteus maximus, is the correct location for an IM injection.  The Court of Appeals of Arkansas ruled the judge was correct to instruct the jury to disregard the patient’s testimony as unreliable pointing to the gluteus maximus. Engleman v. Clinic, 2017 WL 5475010 (Ark. App., November 15, 2017).


Forensic Nursing: Nurse’s Hearsay Testimony Accepted Against Domestic Violence Perpetrator.

  The rules of evidence contain an exception to the hearsay rule for statements made to a nurse, physician or other healthcare provider for purposes of medical evaluation and care.  On the other hand, statements to law enforcement are hearsay and are generally not admissible in evidence.  The things this victim said to the nurse were for purposes of medical care. COURT OF APPEALS OF IDAHO November 15, 2017

  A sixty-three year-old man was convicted of attempted strangulation and domestic violence with traumatic injury to his live-in significant other.  He appealed his conviction on the grounds that the victim’s statements were admitted into evidence against him in the form of hearsay statements to a forensic nurse who interviewed her two days later.

  The Court of Appeals of Idaho ruled the trial judge was correct to overrule the perpetrator’s objection to the victim’s hearsay statements to the nurse and allowed his conviction to stand.  Things patients say to nurses, physicians and other caregivers for medical purposes are deemed inherently reliable and thus are not excluded from evidence on the grounds of hearsay.

  On the other hand, things victims say to law enforcement may or may not be reliable, so such statements are disallowed in court on grounds of hearsay. The victim generally must testify in person even if a statement is already on record with law enforcement.  The Court acknowledged that a victim’s statement to a forensic nurse who specializes in interviewing, treating and counseling victims of domestic violence at the local Family Advocacy and Education Services may serve dual medical and legal purposes.  In this case the victim came in and asked for an evaluation of her face and neck pain days after the assault, not to report her boyfriend, which gave her statements to the nurse a reliable footing as things said for medical purposes. State v. Hilterbran, 2017 WL 5474489 (Idaho App., November 15, 2017).


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