CPR refusal highlights risk of overly strict policies

Don’t create unethical conflicts and potential liability with corporate rules

Recent media coverage showed a dramatic 911 call between an emergency dispatcher and a nurse at a retirement home who refused to perform cardiopulmonary resuscitation (CPR) on an elderly woman who was unresponsive. Now some healthcare leaders and attorneys are wondering if similar dilemmas could arise at other facilities. The real issue, they say, concerns overly restrictive policies rather than the particular type of setting where that event occurred.

The incident happened at the Glenwood Gardens Retirement Facility in Bakersfield, CA. A recording from the 911 call center, played repeatedly by the news media in the days afterward, included a nurse refusing the 911 dispatcher’s instructions to give CPR to a dying resident of the facility. The nurse told the dispatcher that the 87-year-old woman was barely breathing. In response to the dispatcher’s instructions to begin CPR, the nurse says “Yeah, we can’t do CPR at this facility.” (For more of the exchange between the dispatcher and the caller, see the story below.)

Lorraine Bayless died by the time paramedics arrived, and the ensuing media attention was highly critical of the retirement facility. How could the nurse be so callous? And why would a corporate policy prevent trained medical employees from providing basic first aid?

For healthcare risk managers, the issues are more complex and more far-ranging than what was portrayed in the news media, says Eve Green Koopersmith, JD, a partner with the law firm of Garfunkel Wild in Great Neck, NY. The fact that the death occurred in a retirement home, rather than an acute care center or similar setting, muddies the waters regarding what is expected of staff, Koopersmith says. But that setting does not necessarily mean the employee’s actions or the corporate policy were proper, she says.

“The lesson is that the industry needs to help the public understand the difference between an assisted living facility, an independent living facility, and a nursing home. The lines between these types of facilities have blurred tremendously,” she says. “If you are a resident in the independent living facility, a nurse from the nursing home building is not going to come over and help you when you fall. That’s not what they do. Someone is going to call 911, but if these incidents are not handled well, this is the type of reaction you get.”

The assisted living issue is only one part of the story, however. Concerns raised by this case can affect all healthcare providers, Koopersmith explains. That same potential overreach, the too-broad or ambiguous corporate policy, could create conflicts with medical care in other settings, she says.

Nurse criticized by company

The woman lived in the independent living building at the retirement facility, which does not offer medical care as part of its agreement with residents. The retirement facility’s corporate owner stated publicly that its policy was not to provide any medical care at the building, including CPR. The executive director of Glenwood Gardens, Jeffrey Toomer, defended the nurse in a written statement and said saying she followed the facility’s policy.

“In the event of a health emergency at this independent living community, our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives,” Toomer said. “That is the protocol we followed.”

A few days later, after growing criticism, the company issued a new statement. The employee had misinterpreted the company’s guidelines, the company said, and the nurse was on voluntary leave while the case is investigated. “This incident resulted from a complete misunderstanding of our practice with regards to emergency medical care for our residents,” the new statement said. The company did not offer further clarification on what its policy states or how she misunderstood it.

The woman’s family also issued a statement, saying she and they were fully aware that the retirement facility did not offer medical care. She did not have a do-not-resuscitate order but would not have wanted to be revived, the family said.

Even though the nurse was not employed as a caregiver in the facility, she had a duty to provide at least the basic first aid she was qualified to give, including CPR, says Tanvir Hussain, MD, a cardiologist and a former adjunct professor of bioethics of the Pepperdine University School of Law in Malibu, CA, now practicing at Johns Hopkins Medicine in Baltimore, MD.

“The nurse did not keep up with her ethical and moral duties as a healthcare practitioner to provide care to a dying patient and should have her licensure reviewed by the state nursing board,” Hussain says. (For more on the nurse’s potential ethical conflict, see the story below.)

Should a nurse provide CPR?

Support for that view comes from Joel Blass, MD, medical director at the Workmen’s Circle MultiCare Center, a 524-bed short-term, long-term, and sub-acute rehabilitation and nursing facility in Bronx, NY. Barring any advance directives to the contrary, a nurse should provide CPR, and there should not be a policy that discourages her from doing so, Blass says. The fact that the facility does not provide medical care should not discourage someone who has the necessary skills from providing first aid in the same way they would if they encountered the woman on the street or in a restaurant, he says.

“If they know CPR, ethically speaking they should initiate CPR, in pretty much any environment,” Blass says. “In the end, it turned out that this elderly woman did not want to be resuscitated, but no one knew that at the time. The right thing happened in the end, but it happened by accident.”

Koopersmith suggests that the nurse making the 911 call might have been confused by a confluence of factors: She was a nurse but not employed in a caregiving position, the incident was happening in the retirement building where residents know that medical care is not provided, and the company policy might have been unclear. “Unlike a nursing home, independent living communities, such as the one reported in this case, are not generally legally required to provide health services, including emergency services. Instead, these types of facilities offer assistance in contacting emergency first responders in the event of an emergency,” she says. “While a nurse may be allowed to step in to help in an emergency as a good Samaritan, he or she may be reluctant to do so due to concerns about providing care beyond the scope of his or her practice.”

Probes following the incident

In further evidence of how even if the policy was legal and correct, it still can cause nightmares for risk managers, consider how Bayless’ death prompted investigations in several arenas: The Bakersfield police department sought to determine if any crime was committed in refusing to perform CPR; the Kern County Aging and Adult Services Department is investigating possible elder abuse; and the California state legislature’s Aging and Long-term Care Committee is studying whether changes in the law are necessary.

In addition, the Assisted Living Federation of America is urging its members to review policies that could lead to potential ethical conflicts. Senior Vice President Maribeth Bersani issued a statement saying that even if a facility does not provide medical care as part of its services, employees should cooperate when a 911 dispatcher instructs them to provide first aid. The California Board of Registered Nursing stated that it is investigating why the nurse would not hand the phone to someone else who was willing to help, even if she felt restricted by her employer’s policy.

“That’s what has caused so much of the outrage,” Koopersmith says. “It’s certainly appropriate for an assisted living facility to say they don’t provide medical services and make that very clear, but the flip side of that policy, saying ‘and our staff are prohibited from helping or following the directions of an operator,’ that’s a policy question that probably can’t be supported.”

Having a nurse on staff but in a non-nursing position, such as residency director for an independent living center, can create an ethical and legal quandary, says Larry Abrams, director of administration at the Workmen’s Circle MultiCare Center in Bronx, NY. People might ask why you bothered to employ a nurse if that person is not allowed to provide even the most basic first aid to residents.

Having such employees on staff might — intentionally or not — give the impression that your employees are qualified and ready to respond to an emergency, even if you explicitly state that you do not provide medical care, Abrams notes.

“Having employees who have an RN after their names may give some credibility, but it also might allow family members to avoid having that difficult conversation about what their loved one wants and expects in an emergency,” he says. “And I could easily see that leading to a lawsuit if it doesn’t turn out the way people want.”

Blass says he learned one very important risk management lesson from the incident.

“I know I will never say, when the press asks me why we did something, ‘Oh, it’s our policy,’” Blass says. “That just sounds like you’re hiding behind your policy.”

Sources

Larry Abrams, Director of Administration, Workmen’s Circle MultiCare Center, Bronx, NY. Telephone: (718) 379-8100, Ext. 447.

Joel Blass, MD, Medical Director, Workmen’s Circle MultiCare Center, Bronx, NY. Telephone: (718) 379-8100, Ext. 474.

Tanvir Hussain, MD, Levine Group at Green Spring Station, Lutherville, MD. Telephone: (410) 583-2926. Email: tanvir75@gmail.com.

Eve Green Koopersmith, JD, Partner, Garfunkel Wild, Great Neck, NY. Telephone: (516) 393-2282. Email: ekoopersmith@garfunkelwild.com.

Details of 911 call when nurse refused to give resident CPR

The 911 call from the Glenwood Gardens Retirement Facility in Bakersfield, CA, is chilling, not because the person is emotional or panicking, but because she is oddly calm and straightforward.

After the caller, who identified herself as a nurse employed at the facility as a resident services director, refused instructions to start cardiopulmonary resuscitation (CPR), the obviously frustrated 911 dispatcher tells the nurse to hand the phone to a passerby, “any citizens,” so she can guide them in providing CPR. The nurse says no one is available.

“Anybody there can do CPR. Give them the phone, please,” the dispatcher pleaded. “This woman’s not breathing enough. She’s going to die if we don’t get this started.”

The dispatcher continues trying to convince the nurse on the line to help. “I don’t understand why you’re not willing to help this patient. Is there anybody that works there that’s willing to do it?”

“We can’t do that,” the nurse says. “That’s what I’m trying to say.” When the dispatcher asks if the nurse is going to just let the woman die, the caller replies, “Well, that’s why we’re calling 911.”

“Is there a gardener? Any staff, anyone who doesn’t work for you? Anywhere?” the dispatcher pleads. “Can we flag someone down in the street and get them to help this lady? Can we flag a stranger down? I bet a stranger would help her.”

At one point in the conversation lasting 7 minutes and 11 seconds, the caller can be heard complaining to someone else in the room. “She’s yelling at me and saying we have to have one of our residents perform CPR. I’m feeling stressed, and I’m not going to make that call.”


Policy or no policy, bioethicist says nurse betrayed her duties

The nurse who refused to give cardiopulmonary resuscitation (CPR) to a dying resident of an assisted living home “failed in her moral and ethical responsibilities,” says Tanvir Hussain, MD, a cardiologist and a former adjunct professor of bioethics of the Pepperdine University School of Law in Malibu, CA, now practicing at Johns Hopkins Medicine in Baltimore, MD.

“Moral, because of what we would hope anyone would do for us if we were in Lorraine Bayless’ position, and ethical because of our deeply held belief that nurses and doctors should intervene on the part of the distressed or dying under any or most circumstances, even over their own self-interest,” Hussain explains. “From accounts, there was no immediate indication the resident did not want resuscitation, nor did anyone make mention of this during the 911 call.”

Hussain notes that the nurse’s inaction, and what many perceived as a blasé attitude in the face of a dying woman, prompted a visceral response from many people. “Our deeply held belief is that a nurse or a doctor, whatever the situation, should intervene on behalf of someone in medical distress. Otherwise, why call out for a doctor or nurse in a restaurant or on the plane?” Hussain says. “Secondly, there is something deeply troubling about trained medical personnel actively withholding their skills in a time of need, especially when someone’s life is at stake. It feels inherently wrong, even if it is not legally wrong under certain circumstances.”

Further fanning the fires of public outrage, Hussain says, was the appearance that the nurse was withholding treatment out of self-interest. She specifically stated that the company’s policy was not to intervene, mentioned that her boss was present, and spoke with her boss during the 911 conversation. All of those statements implied she would face repercussions for administering CPR, he says. “If this was the case, it not only is troubling to the average listener, but is deeply disappointing and sets a dangerous precedent,” he says.

Hussain also is troubled by the way the company first supported the nurse and then, as the public outcry increased, reversed course and said she misinterpreted its policy. “Clearly the company gave a face-value impression that they were willing to throw their employee under the bus, as it were,” he says. “Had her immediate supervisor not spoken up in her defense, I wonder if she would still be under their employment.”

As for handling future incidents, Hussain says it seems only to a facility’s benefit that they should allow workers or any trained medical staff to at least attempt assistance if a resident is clearly dying or otherwise in medical distress. Most importantly, time is of the essence in cases such as these, and not intervening out of fear of a lawsuit could bring lawsuits of another kind, he says.

“One could easily imagine a different family under different circumstances or beliefs bringing a suit against the facility and parent company. And clearly they would have full public support, and the company would have gotten hammered in the media,” Hussain says. “I think in the court of public opinion, ‘do the right thing’ still wins the day.”


Review policies for unintended consequences

The fallout from the refusal to perform cardiopulmonary resuscitation (CPR) at an assisted living home in Bakersfield, CA, is a good reason for healthcare providers to review any policies for unintended consequences, says Abby Pendleton, JD, a founding partner with The Health Law Partners in New York City.

In particular, she says, risk managers should watch for any policies that could put a licensed caregiver in conflict with his or her own clinical judgment or ethical duties. “That means making sure policies aren’t written in such a way that they can be misinterpreted by employees,” Pendleton says. “We have to keep in mind that what may seem like a straightforward statement of policy to you and me can create a dilemma when someone is trying to do the right thing but also doesn’t want to lose their job.”

Any policy that restricts the actions of an employee in an emergency situation must be carefully crafted, says Eve Green Koopersmith, JD, a partner with the law firm of Garfunkel Wild in Great Neck, NY. Stating that the facility does not provide a particular type of care should not prevent employees from acting as any private citizen would when facing a person in need of basic first aid, including CPR, she says. That distinction will require education, however.

This assisted living incident could have been the result of an overly cautious interpretation of the facility’s policy by the employee on the phone, says Jessica Gustafson, JD, a founding partner with The Health Law Partners in Southfield, MI.

“This is a good example of how you need to have continuing education to help employees understand what you really expect from these policies,” Gustafson says. “It can be a real mistake to just disseminate the policy and feel like you’ve done your job. You need to educate people on what it means and let them ask those questions that you never thought of. Let them ask what this policy means in their day-to-day life, and listen to some of their interpretations. You might be concerned by what you hear.”

Sources

Jessica Gustafson, JD, Founding Partner, The Health Law Partners, Southfield, MI. Telephone: (248) 996-8510.

Abby Pendleton, JD, Founding Partner, The Health Law Partners, New York City. Telephone: (212) 734-0128. Email: apendleton@thehlp.com.