A COMPLIMENTARY NEWSLETTER PUBLISHED BYLEGAL NURSE CONSULTING SERVICES, INC.
VOLUME 1, NUMBER 2
FALL 1999
INSIDE
THIS ISSUE
Nurse Advises "Reconsider Choice of Physicians"
What do you do when your patient's condition is deterioating
and the physician doesn't return your calls?
Nurse Advises "Reconsider Choice of Physicians" Deerman v. Beverly California Corp., 518 S.E.2d 804 - NC (1999)
Robert W. Stein, III, RN, MSHA, CHE, LNC
Case Scenario
In this case the nurse providing patient care noted a decline in the patient's condition,
evidenced by weight loss, hallucinations, psychiatric symptoms, and acute distress. The findings were documented
and attempts were made to contact the attending physician. The attending physician, however, failed to return any
of telephone messages. As the patient's condition continued to deteriorate, the patient's family asked for the
nurse's advice about what should be done for the patient. The nurse suggested that they "reconsider the choice
of physicians."
The facility promptly fired the nurse after learning of the advice she had given
to the patient's family. The nurse brought suit for wrongful termination arguing that as a registered nurse she
was obligated to provide "teaching and counseling" to her patients and their families.
Legal Issues
During a typical hospital stay, nurses spend the most time in direct contact with the patient. They are the main
intermediary between patients under their care, their families and the physicians responsible for their medical
care & treatment. Nurses know all too well whom the good physicians are, as well as the not-so-good physicians.
The issue raised in this case centered around whether a registered nurse, entrusted with the care of a patient,
has a defined duty or responsibility to the patient. Specifically, a duty to suggest that the patient or patient's
family may want to reconsider their choice of physicians given a declining medical condition and the failure of
the physician to respond.
Implications for Nurses
This case highlights an ethical question that every nurse faces at some point in his or her career. Should you
act in a manner that is in the best interest of your patient, or in a manner that will prevent you from being fired?
Should you sacrifice helping one patient in order to keep your job, thus permitting you to help many other patients
in the future? What would YOU do in this situation?
Outcome
In this case, the court found that nurses do not have to make a choice between doing the right thing for their
patients or keeping their job. The court ruled that in light of the declining medical condition of the patient
and the failure of the physician to respond, that the nurses' advice to reconsider their choice of physicians was
"teaching and counseling" as required under the North Carolina Nurse Practice Act. They elaborated that
the nurse had a responsibility to provide accurate and consistent information and to provide guidance and counseling
to patients and their families. The court rejected the facility's argument that the nurse had engaged in the practice
of medicine without a license stating that the nurse's actions met the minimum requirements set forth in the Nurse
Practice Act. It noted that the nurse's actions were defined in the applicable Nursing Scope of Practice and met
the minimum requirements set forth in the Nurse Practice Act. The allegation that she was "practicing"
medicine therefore was without merit.
The findings of the court highlight the need for ongoing, accurate, and consistent
documentation of the patient's health status and all actions taken. The complete and timely documentation by the
nurse in this case supported and substantiated her recommendation that the family reconsider their choice of physicians.
Further, the nurse has an obligation to provide counseling and guidance to patients and their families when faced
with a deteriorating medical condition and the inaction of the attending physician.
Related Malpractice Cases:
September 19, 1999: Abusive Psychiatric Patient Restrained, Placed In Seclusion For Angering Nursing & Medical
Staff?
Summary: In dealing with violent, abusive or angry psychiatric patients, the safety of the patient and staff are
the priority concerns. When restraints or seclusion are deemed necessary, justification for the measures must be
documented concisely. In this case, an unruly patient angered the nurse caring for him. When leather restraints
were applied and maintained for a prolonged period of time, the patient would object and later sue for damages.
Alt v. John Umstead hospital 479 S.E. 2d 800 http://www.nursefriendly.com/nursing/clinical.cases/091999.htm
August 1, 1999: Nursing Duty To Patient, "Does Not Guarantee" Safety Or Quality Of Care.
Summary: When a nurse accepts report and responsibility for the care of a patient a duty to the patient is also
accepted. This duty is to provide a reasonable standard of care as defined by the Nurse Practice Act of the individual
state and the facility Policy & Procedures. In this case, a post-op abdominal aneurysm repair patient was injured
after falling from his bed to the floor. When a lawsuit was filed the court initially mistook expert testimony
to imply the role of the nurse includes a guarantee of safety.
Downey v. Mobile Infirmary Med. Ctr. - 662 So. 2d 1152 (1995). http://www.nursefriendly.com/nursing/clinical.cases/080199.htm
July 25, 1999: Premature Child of Cocaine Addicted Mother Survives Abortion. Physician Order: Leave To Die?
The premature birth of a child under normal circumstances requires highly skilled nursing and medical care if the
child is to survive. The birth of a premature child to a known Cocaine addicted mother greatly increased the risks
of mortality. In this case, a child intended to be aborted is born alive. When the physician orders that the child
be to left to die, it miraculously survives on its own. Were the nurses liable for "following orders?"
Hartsell v. Fort Sanders Reg. Med. Ctr. 905 S.W. 2d 944 - TN (1995). http://www.nursefriendly.com/nursing/clinical.cases/072599.htm
June 13, 1999: Felony Child Abuse Conviction, Made Possible Thanks to Nurse's Documentation.
Child abuse is a "reportable" crime. This means when a healthcare worker suspects in the course of their
duties that a child has been abused, it must be reported. Procedures are in place in hospitals and other facilities
for the reporting of abused children. In this case, it was the expert documentation of a child's statements by
a nurse, physician and field agent that made the conviction of an abuser possible.
State v. Gillard, 936 S.W. 2d 194 - MO (1999). http://www.nursefriendly.com/nursing/clinical.cases/061399.htm
June 6, 1999: Emergency Department Nurse Verbally Abused, Physician History Well Documented
Official tolerance for verbal abuse and sexual harassment is approaching zero. It is clear that both are still
prevalent in healthcare settings today. Enforcing and reporting instances of abuse are critical to an end being
put to the situation. In this case, a physician had a "history" of verbal abuse in the facility involved.
It was the documentation of previous events that made formal action and administration of a suspension feasible.
Gordon v. Lewiston Hospital, 714 A.2d 539 - PA (1998) http://www.nursefriendly.com/nursing/clinical.cases/060699.htm
May 23, 1999: Sponge Count Off, Patient Develops Sepsis, Surgeon Blames Nurse.
Sponge Counts are a basic and critical safety measure during a surgical operation. In this case, the standard three
counts were not performed. A sponge was left in the patient that would later lead to infection. When the issue
went to court, the surgeon claimed "it was not his responsibility" to keep track of the sponges. Johnston
v. Southwest Louisiana Assn. 693 So. 2d 1195 -LA (1997) http://www.nursefriendly.com/nursing/clinical.cases/052399.htm
Related Resources in Print
Buckley-Womack C, et al., A new dimension in documentation: the PIE method. J
Neurosci Nurs. 1987 Oct;19(5):256-60.
Ehrenberg A, Ehnfors M. Patient records in nursing homes. Effects of training
on content and comprehensiveness. Scand J Caring Sci. 1999;13(2):72-82.
Martin A, Hinds C, Felix M. Documentation practices of nurses in long-term care.
J Clin Nurs. 1999 Jul;8(4):345-52.
Boroughs DS. Documentation in the long-term care setting. J Nurs Adm. 1999 Dec;29(12):46-9.
