Case could offer new defense strategy in med mal
A ruling in a Texas malpractice case could offer defense attorneys a new avenue of argument with any lawsuit alleging that nurses did not properly act on the information they learned from observing the patient.
The ruling came in the lawsuit against The Methodist Hospital in Houston, TX, in which a patient’s family alleged that nurses failed to recognize that the symptoms and test results they observed indicated he was experiencing heparin-induced thrombocytopenia (HIT). The hospital responded that the nurses were not obligated to make a medical determination from the findings, but rather to pass them on to a physician to make that decision.
In the recent court decision, the judge sided with the hospital and said the nurses’ responsibility was to pass on the information to physicians and not to diagnose the condition. Having them do as the plaintiff expected mounted to them engaging in "the unauthorized practice of medicine by making a medical diagnosis," the judge wrote. "Anything that could be characterized as the practice of medicine is expressly excluded from the scope of professional nursing. " (See the story on p. 66 for more information on the facts of the case.)
Case will be cited often
Though the case technically applies only in Texas, the ruling was noticed immediately by defense attorneys nationwide eager to make the same argument in similar cases hinging on the judgment of nurses. But one plaintiff’s attorney cautions that it is not a foolproof defense.
Defense attorneys in Texas, and probably other states, are going to cite the case often, says Jeffrey M. Kimmel, JD, a partner with the law firm of Salenger, Sack, Kimmel & Bavaro in New York City. "For every nursing case, they’re going to say that it was a medical decision and not a nursing decision," Kimmel says. "This case hands them that defense, and they’re going to run with it."
Kimmel recently tried a case with similar allegations, and he says the Methodist v. German defense would not have defeated his claims that nurses should have acted on their knowledge of the patient.
"The court really overreached in trying to explain why it ruled in favor of the hospital," Kimmel says. "They didn’t have to go so far as to say the nurses didn’t commit malpractice. I think they did. But defense attorneys in Texas are going to cite this case hundreds of times."
Kimmel notes that in all states, the expectations of nurses is the same as the court described in the Methodist v. German opinion: It is their responsibility to recognize the signs and symptoms of diseases and then bring that information to the attention of doctors, who will make the medical decision.
However, the law does not let nurses off the hook once they have reported the information. In all states, if nurses think that doctors are not responding adequately or appropriately to the information given them, the nurses are obligated to follow the chain of command with their concerns. That step might mean going to the head of the department, the director of nursing, or any other authority figure who could intervene, Kimmel says.
"Is that making a medical decision when they are not doctors?" Kimmel says. "In New York the answer is no, because the standard is clear that the nurses need to take this action when the doctor’s actions are clearly contraindicated."
In Kimmel’s opinion, the nurses at Methodist could have been held responsible not for failing to originally diagnose HIT, but for failing to go over the head of the treating physician when he did not make the diagnosis that they thought was the obvious conclusion. However, he notes that the court did not even have to address that issue. It could have dismissed the case on proximate cause grounds, because there was no clear evidence that the patient’s condition was HIT and not similar problems, he says.
The ruling seems to lower the standard of responsibility for nurses in Texas, Kimmel says, but courts all over the country are not likely to take the same approach to nursing judgment as the Texas court. Even though nurses cannot make medical diagnoses, it is obvious that they can interpret the signs and symptoms of distress, he says.
"I have a case now with a brain-damaged baby, in which the baby’s head was sticking out of the birth canal, and the doctor couldn’t deliver the baby, couldn’t push the baby back in, and didn’t order a caesarian section for two hours," he says. "Our argument is that the nurses have delivered more babies than the doctors, and the nurses know when it is oxygen-deprived and the baby is in distress."
In that case, Kimmel says the nurses should have gone over the head of the attending physician to someone who could intervene and get the baby out quickly.
"It’s basic common sense that nurses understand medicine and can come to their own conclusions, but that doctors have the obligation to make the actual diagnosis," he says. "This case muddies the water in a way that was not needed."
- Jeffrey M. Kimmel, JD, Partner, Salenger, Sack, Kimmel & Bavaro, New York City. Telephone: (212) 267-1950. E-mail: firstname.lastname@example.org.