Behind Closed Doors #25: “Good Samaritans and Undertakers” Are We Protected?

Information:  White v. Advanced Neuromodulation Systems, Inc., 4732 SCCA (1/14/2011)-FL

Summary: The ‘undertaking’ doctrine may not be what you think!

 

 Disclaimer: Due to the overly sensitive and backward nature of the state I reside in, my nurse attorney Teressa Sanzio has asked me to clarify that I am not practicing law on my blog, rather, targeting these articles toward educational activities that empower good, safe, ethically sound nursing practice. Thank You.

We usually hear of lawsuits that, for the most part, focus on physicians and hospitals. In this most unusual case, it’s the nurse that the patient and his wife ultimately held responsible for the injury caused to the patient. What’s baffling…is that the nurse involved was not practicing in the capacity of a Registered Nurse, rather, she was employed as a device technician and was working well within the scope and regulations set forth by her employer Advanced Neuromodulation Systems (ANS). Her careful documentation would become the highlight of a case that should cause us all to think twice about the Good Samaritan Laws in the states we live in, and to what extent they protect us as nurses. Here, it’s referred to as the Undertaker’s Doctrine which “provides that whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service—i.e., the ‘undertaker’—thereby assumes a duty to act carefully and to not put others at an undue risk of harm…The doctrine comes into play where a plaintiff alleges a defendant voluntarily took an action which, although statutorily authorized, is not required.”(White, 2011)

     Here’s some background on the major players in and unfortunate sequence of events that resulted in the paralysis of a patient. Advanced Neuromodulation Systems (ANS) is the manufacturer of implantable spinal cord simulators used for patients who experience chronic back pain. “PMS” is a separate company that “ANS” contracts with to do the sales and servicing end of the business. “PMS” employs technicians to program the spinal cord stimulators. Some of their employees have nursing backgrounds–though it’s not necessary to have a medical or nursing background to perform the functions of programming the devices. The employees who perform this function have no access to the medical records or health histories of patients. Should a client have health or medical questions, PMS instructs its employees to refer those concerns to a physician. Wendy Bolin was one of these employees, and in fact, was the employee  “ANS” assigned to manage the spinal cord stimulator in question throughout this case. Dr. Moyer is the neurosurgeon who initially saw the patient and implanted the device for chronic back pain relief. Dr. Waks was the primary care physician of the patient who had the spinal cord stimulator implanted. Finally, there was a second unnamed neurosurgeon who the patient consulted with shortly before becoming partially paralyzed.

Mr. White initially made contact with Dr. Moyer, a neurosurgeon, early in 2004 for help with chronic back pain. Dr. Moyer recommended a spinal cord stimulator be implanted, explained the risks and benefits of the procedure (which included infection), and Mr. White agreed to the procedure having had the surgery performed sometime in April of 2004. Wendy Bolin, the technician who would be assigned to program Mr. White’s device, became acquainted with him preoperatively and explained her role. It’s unexplained how Mr. White was privy to Wendy’s nursing background, but the court documents emphasize that he was well aware that her role was one of a technician and not that of a nurse. Mr. White first contacted Wendy one day after the device implantation complaining of “seepage” from the incision site. She advised him to call Dr. Moyer, the surgeon who implanted it, for follow up on the issue. He followed those instructions and spoke with Dr. Moyer’s PA who told Mr. White over the phone that the “seepage wasn’t unusual given the circumstances.” (White, 2011) (those “circumstances” were never made clear during the proceedings).

Wendy Bolin and Mr. White had no further contact between June 2004 and January 10, 2005– when he called to advise her that the pain stimulator was not working properly and that there was a cyst next to the site. She made arrangements to meet Mr. White at Dr. Moyers’ office within the hour of his phone call. While reprogramming the stimulator she saw purulent discharge coming from the incision site. She told Mr. White he needed to see Dr. Moyer for follow up immediately. He responded that Dr. Moyer was refusing to see him due to an unpaid medical bill but that he would go see his primary care physician instead. Wendy again insisted he follow up with Dr. Moyer.

Concerned about Mr. White’s inability to see the neurosurgeon, Wendy speaks with the scheduling staff in his office and explains that Mr. White must have a follow up appointment as soon as possible to have the incision site evaluated. She leaves her programming documentation as well as note with her concern about the “purulent discharge” at the surgical site for Dr. Moyer before leaving. Despite Wendy’s efforts, Mr. White is still unable to get an appointment. Three days after meeting with Wendy at Dr. Moyers’ office he presents to his primary care physician, Dr. Waks, who assesses that there is the presence of yellow drainage at the surgical site. He prescribes an antibiotic and strongly advises Mr. White to return to Dr. Moyer’s office for an evaluation. Mr. White returns to see Dr. Waks two weeks later for a follow up appointment —still having been refused an appointment with Dr. Moyer…Dr. Waks would not come into contact with Mr. White again until April of 2005 when, at that time, he advised Mr. White that the site had become infected again. He again urged that the patient return to Dr. Moyer so the device can be removed.

On May 24, 2005 Mr. White makes contact with Wendy, at which time she inquires about the incision site. He mentions that its still oozing now and then but that it’s “okay.” As she has previously, Wendy advises him to make an appointment with Dr. Moyer. He sets an appointment to have the stimulator reprogrammed on June 1^st, 2005. Wendy is unavailable for the visit so a  “PMS” colleague, Dawn Dunham, steps in for her. After reprogramming the stimulator, her concerns about the incision site drive Dawn to seek the assistance of Dr. Moyer’s PA—who reassures her and Mr. White that “there isn’t anything to worry about.” The PA then sets a follow up appointment for Mr. White to be seen in two weeks. Dawn then briefs Wendy Bolin about the office visit with Mr. White, adding that an appointment has been set.

 **Court records do not reveal who did it….but Mr. White’s appointment was cancelled**

Exasperated, Wendy Bolin pays a visit to Dr. Moyer’s office by herself to investigate what is going on. After speaking with the scheduling staff she learns that Mr. White has been denied a visit with Dr. Moyer because of an unpaid medical bill and that it must be paid before he will be able to schedule any further appointments. She goes one step further and meets with Dr. Moyer himself to plead Mr. White’s case and relay her concerns about the surgical site. Dr. Moyer refuted the notion that he would deny any patient needed care. She left his office feeling as if something would finally be done to help Mr. White…

Mr. White begins seeing a new pain management physician just a few weeks later. Wendy meets him at the office to program the stimulator and is present for the consultation. The physician also advises Mr. White to go back and have the device removed by Dr. Moyer. He again turns to his primary care physician, Dr. Waks—only this time Mr. White is complaining of  new “numbness in his legs.” At this point he is referred to another neurosurgeon for further evaluation—during this visit Mr. White is given the unfortunate diagnoses of peripheral neuropathy. *It’s unfortunate because the diagnosis was WRONG*

Wendy Bolin was updated about the new diagnosis on August 12, 2005. Just two days later, Mr. White became partially paralyzed due to an infection at the surgical site that caused compression on his spinal cord. When Dr. Moyer was made aware of Mr. White’s condition he remove the stimulator immediately, lamenting that had he knew about Mr. White’s symptoms and complaints it would have come out sooner. The Whites felt Wendy was obligated to do more– and thus held her responsible for not making sure—herself—that Dr. Moyer provided care to the patient. The court was appalled, applying the “Undertaker’s Doctrine,” and entering a judgment “for the nurse”: “THE FLORIDA COURT OF APPEALS AFFIRMED THE JUDGMENT ENTERED BY THE LOWER COURT. The court held, inter alia, that Nurse Bolin’s voluntary actions in urging that the patient be seen by the neurosurgeon who implanted the neuromodulation system in him did not impose an affirmative duty on the nurse to do any more than she had already done. The court held, inter alia, that Nurse Bolin had gone far beyond the call of duty in imploring the patient to make certain that he was seen by the doctor who implanted the device. Through no fault of Nurse Bolin, despite her extraordinary effort to have the patient seen by the doctor in question, the patient was never seen by him. Ironically, Nurse Bolin found herself among the defendants when the patient finally brought suit. Justice was done when Nurse Bolin’s motion for a directed verdict was granted by the trial court and the trial court’s order was affirmed on appeal. IN VIEW OF WHAT THE COURT PERCEIVED TO BE A GROSS INJUSTICE REGARDING THE INCLUSION OF NURSE BOLIN IN THE SUIT, THE COURT SAW FIT TO DISCUSS THE ‘UNDERTAKER’S DOCTRINE.’ “ (Tammelleo, 2011)

 Questions for Consideration

 

1. At what point (s) in time did Wendy cross into the role of a nurse—provide examples of action to support your opinion. (this is a trick question)
2. You’ve taken a job in the healthcare setting that does not use nor require your nursing skills, yet you still keep an active RN license. Are you still required to abide by your oath and the Code of Ethics for Nurses when you see or are aware of unethical situations that place the lives or well- being of others at risk? Explain your rationale.
3. The Whites, in their complaint against Wendy Bolin, state that she should have “warned Mr. White that an infection at the incision site could result in paralysis.” Do you agree? Why or why not.
4. If Wendy was acting in the capacity of a Registered Nurse, should she have been held liable for, or had the duty to make sure Dr. Moyer provided care to Mr. White? Is there a line at which the responsibility falls to a physician?
5. Who, in your opinion, is ultimately responsible for the injury caused to Mr. White? Why?

 Discussion

     We’ve all done it and if you haven’t— you’re either lying or haven’t been in the profession long enough: Keeping the “Nurse” on the “DL” (the down low) when out in public. Whether it be the gym, the county fair, a restaurant, or the mall– we like to stay off the clock when we are—off the clock.  I’ll cop to it. When I used to frequent the gym I stayed away from any equipment operated by someone who had skin pallor that screamed “major coronary blockages within.” Cardiac & ER nurses—you know what I’m talking about. Would I do CPR if I had to? Of course I’d do it– But that doesn’t mean I’m about to tempt fate by putting myself in the path of a potential tornado. We live and practice in a litigious society and even the best intentions/efforts to help your fellow man may not go over so well should the outcome be less than satisfactory to the patient and/or family. Hell, doctors even have the ability to destroy your livelihood and future if you do something they do not like or agree with.

      Mr. White’s case is a perfect example of what happens when a nurse—who wasn’t “on duty” as a nurse, sought to help him by tirelessly advocating for his best interests throughout the course of care. I wonder if it was Wendy herself who made the mistake of sharing her nursing background with Mr. White. Here’s a hint—if you’re not working in the capacity of a nurse, don’t share that you have that background for this exact reason! The two roles can easily become blurred in the eyes and mind of the patient. Although the lawsuit named the two companies involved, and each physician that came into contact with Mr. White, the court documentation clearly stated that their focus was on “the nurse.”

Once the coveted RN is placed after your name it would be wise to take a breath, relax with a glass of iced tea or a cup of coffee, and explore your state’s legislative website to learn more about the Good Samaritan Laws in your state. How are you protected legally should you help render aid with a motor vehicle accident or when breaking a few ribs performing CPR in front of the McDonalds at the local mall? It’s important to know these things. There was recently a bad car accident here in Phoenix that involved children. The bystanders were afraid the car was catching fire and worked hard to pull the young children out of their car seats and out of the car before first responders got there to assist. First responders later advised the community via the evening news that because the children were taken out of the car seats they hemorrhaged and coded (trauma code)—the close compartment of the car seat and the belt holding them in place was actually keeping them somewhat stable. There is no fault, lay people don’t know these things—and genuinely want to help. But let’s play the devil’s advocate here—what if those bystanders were nurses and the family found that out? There is a really good chance that they would have been subjected to a lawsuit. The reason why? Well, one could argue that a nurse is trained to assess for potential internal injuries resulting from trauma and should understand the basic principles behind maintaining homeostasis. He/she could be accused of causing harm or death in the process of rendering aid.

     I’m not saying don’t stop and help—I do all the time—but be smart about it and practice defensively–know what,  if anything, your state has on the books to protect healthcare providers while they are engaged in those crucial moments of caregiving…

 

Resources

White v. Advanced Neuromodulation Systems. (2011, January 24). Retrieved May 31, 2013, from LEAGLE: Debate, Cases, Regulations, Statutes, and More: http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In%20FLCO%2020110114132.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

Tammelleo, D. (2011, January 1). The ‘undertaking doctrine’ may not be what you think! Retrieved May 31, 2013, from The Free Library: http://www.thefreelibrary.com/The ‘undertaking’ doctrine may not be what you think!-a0249390289

Behind Closed DoorsCase #24: “Falling through the cracks”

Information:  Sturgill v. Ashe Memorial Hospital, Inc., S.E.2d (11/06/2007)–NC

Summary: Patient restraints: a nursing care catch-22. 

Disclaimer: Due to the overly sensitive and backward nature of the state I reside in, my nurse attorney Teressa Sanzio has asked me to clarify that I am not practicing law on my blog, rather, targeting these articles toward educational activities that empower good, safe, ethically sound nursing practice. Thank You.

The Real Thing

     Charlie Johnson was admitted to North Carolina’s Ashe Memorial Hospital on November 23, 2003 for a decreased level of consciousness, disorientation, and impaired mobility. He was 76 years old at the time. The nurse assigned to Charlie performed the hospital’s standard admission assessment of the patient and noted abnormalities in the cardiovascular, neurovascular and musculoskeletal systems to such a concerning degree that she followed the hospital’s policy by placing Charlie on the appropriate fall precaution interventions protocol—“putting the bedrails in the ‘up’ position and placing restraints on him.” (Court of Appeals, 2007) For unknown reasons, the restraints were removed on November 24^th—and remained off– from that point. Nursing staff had discovered Charlie’s ability to move around his room had improved when they found him sitting in a chair next to his bed at 1500 on November 25, 2003. At 1900 hours his cognition had deteriorated: “defendant’s employees noted that he was neurologically abnormal and suffering from confusion and dementia, and had a low oxygen level and an irregular heartbeat.” (Court of Appeals, 2007) His fall score was changed to “8” during this time. A physician was called and notified of the change in Charlie’s condition and he provided orders to administer nebulizer treatments. However, restraints weren’t ordered or placed on the patient. Records show that at 2200 hours staff members had checked on Charlie noting his status as “no distress.” No one saw him again until 2330 when nursing staff found Charlie unresponsive on the floor of his room:  “He had suffered head injuries, fractures to his right shoulder and elbow, and an injury to his right knee.” (Tammelleo, 2007) Charlie was ultimately transferred to Wake Forest University Baptist Medical Center facility for a higher level of care–where unfortunately, he would die of his injuries on December 12, 2003.

Questions for Consideration

1. What provisions of the Code of Ethics for Nurses could have been violated here?
2. What parts of your state’s Nurse Practice Act were not adhered to in this case?
3. What kind of documentation should have been present pertaining to Charlie’s restraints?
4. The nurses in this case appeared to have made the judgement to remove the restraints and keep them off of Charlie based on their own assessment of his need for them—should this be considered going out of scope of practice? Why?
5. In this case, is there a component of nursing negligence, omission of care, or both?

Discussion

     Ahhhh yes– Fall Precaution Policies. They can get quite redundant and burdensome, no? Especially when you have an overly enthusiastic unit based educator who finds 10 different special ways to implement ONE fall protocol. This is an example of just one of the gaps between educators and those of us who are (and have been) out there in the trenches trying to carry out all those creative little plans he/she conjures up in that office that’s so magically hidden away from the nursing station. Educators—Implementation is a big problem, and it’s largely due to not taking the time to perform a simple forcefield analyses and failing to involve the major stakeholders in your grand plan to improve outcomes—your colleagues, the people that actually have to engage in the follow through of “the plan.” Chances are, if you create they will most likely run—should your plans call for incorporating more steps and paperwork into an already overloaded nurse’s brain. Nurses get tired of hearing about initiative after initiative, process after process— that they start to tune out. Herein lies a danger—the potential for staff to develop an all too casual attitude about the implementation of what are, in reality, very basic policies.

     Ok, so before anyone freaks out and runs to the AZBON to play tattle tale –I’m NOT saying that Fall Precautions or other policies are not important to follow and implement when in the process of caregiving. They are there for a reason—for the safety of both you (your license) and your patients. What I am focusing on is a potential deterrent that can result in sentinel events—the overworked and overwhelmed psyche of staff nurses. There is a real value to “keeping it simple silly.” The court documents do not outline the exact protocol nurses were to follow at the hospital in question but in my experience as a floor nurse I remember one unit based educator who found a million different ways to carry out a simple protocol—it was dizzying and annoying and it really took my time and attention away from the patient instead of causing me to focus more on the risk and prevention—by this I mean I was so honed in on carrying out all the little steps and procedures that had to be completed (lest I be audited) that I would almost forget about the patient altogether! I know I wasn’t the only nurse who battled with this.

     Research has demonstrated time and time again that falls are the cause of too many preventable injuries and deaths each year, and that more often than not we nurses are at the sharp end of those sentinel events: “Falls are a leading cause of hospital-acquired injury, and frequently prolong or complicate hospital stays. Falls are the most common adverse event reported in hospitals. Reviews of observational studies in acute care hospitals show that fall rates range from 1.3 to 8.9 falls/1,000 patient days and that higher rates occur in units that focus on eldercare, neurology and rehabilitation. In spite of extensive research on falls risk factors and the development of a number of falls risk instruments, protocols are applied inconsistently, and risk factor directed interventions are far from standardized. The best guide to effective fall prevention strategies is effective adoption of the key common elements in better performing falls programs and hospitals. (AHRQ, 2013) So what can we do? Simple. Stop, clear your mind of clutter, and focus– 1.) Exercise common sense. 2.) Get back to basics and thoroughly assess your patient and their surroundings. 3.) Construct a nursing care plan. 4.) Secure Safe placement of the patient near to the nursing station so that you can be as close to that patient as possible during your shift. 5.) Carry out your hospital’s fall and restraints protocols and document frequent assessments!

     What troubled me about Charlie’s story is that there was a lack of continuity in fall/restraint interventions. It appeared that nurses were each making their own individual judgment about Charlie’s needs, rather than approaching his care and safety as a team. Making a decision to place your patient in restraints is a major clinical decision and it should involve a physician signing off on the need for them. The use of restraints bumps up the level of care in such a way that a patient requires more frequent and intensive monitoring for long periods of time—depending on the clinical situation this can mean monitoring with interventions every fifteen minutes or every two hours. You can read what The Joint Commission has to say regarding their standards for restraints here. When a patient is assessed as no longer needing restraints, a physician should also be involved in that process and the patient monitored one to one for a length of time that assures nursing staff that the patient is safe and able to be alone in his/her room. In Charlie’s case there were no documented reasons for him having been taken out of restraints, no requests for a sitter, no physician involvement in the application or removal of the restraints, and no consistent fall precautions were being taken after their initial implementation. One could argue in court that, at the minimum, there was a breach of duty on behalf of some of the nurses involved in Charlie’s care.

     Yes, we nurses have a lot to think about, schedule, and do in the 12 short hours we are given. The distractions we must fend off are, quite frankly, off the charts so to speak: “One study reported that nurses were interrupted up to 10 times per hour, or once every 6 minutes, which resulted in an overall error rate of 1.5 per hour.” (Rochman, 2012)  Charlie’s demise is a testimony about how the patient frequently gets lost somewhere in the middle of everything. The take home message here is that it’s not  enough to look good on paper or within the electronic medical record if your patient gets hurt. You can’t document you have implemented a, b, or c to protect your patient without taking the extra step of actually doing it—in this case; Charlie’s body on the floor, his injuries, they tell a completely different tale of what WAS NOT done….which leads to you facing some tough questions about why you as the nurse lied by documenting something you clearly didn’t do….. 

Resources

Court of Appeals of North Carolina/STURGILL v. ASHE MEMORIAL HOSPITAL INC. (2007, November 6). Retrieved May 29, 2013, from FindLaw: http://caselaw.findlaw.com/nc-court-of-appeals/1018476.html

Acute care prevention of falls: rate of inpatient falls per 1,000 patient days. (2013, March 12). Retrieved May 29, 2013, from AHRQ Agency for Healthcare Research and Quality/National Quality Measures Clearinghouse: http://www.qualitymeasures.ahrq.gov/content.aspx?id=36944

Rochman, M. A. (2012, July-September). Interprofessional Simulation on Nurse Interruptions. Journal of Nursing Care Quality, 27(3), 277-281. doi:10.1097/NCQ.0b013e31825734b4

Tammelleo, D. (2007, November 1). Nursing negligence: $5 million punitive damage award. Retrieved May 28, 2013, from The Free Library: http://www.thefreelibrary.com/Nursing negligence: $5 million punitive damage award.-a0172012809