AVOIDING LIABILITY BLOG

Avoiding Professional Liability Bulletin – October 1, 2015

Exact adherence to infection control procedures is essential, regardless of your area of nursing specialty. In the following case1, the ED was the setting where infection control procedures were not followed with unfortunate results.

A man returning to his home after duck hunting stopped to check a noise in his combine. While under the combine and searching for the noise, the man’s hand became entangled in the axle of the combine.

The combine degloved his finger, and the ligament in the finger became attached to the axle and then wrapped the ligament around it. The man was able to keep his hand and arm from being drawn into the machinery by grasping his left wrist with his right hand and pulling backward until the ligament snapped and his hand was free from the machinery. Although free from further injury, the incident resulted in the traumatic amputation of his left ring finger. 2

The man wrapped his hand in a shirt and retrieved his finger. He went to the ED but no orthopedic doctor was on duty, so an orthopedic surgeon was called to provide the man’s care. When he arrived, he cleaned and dressed the wound, prescribed an analgesic and an antibiotic and discharged him from the ED.

At home, the man began experiencing pain that the prescribed medications did not alleviate. He returned to the ED the next morning and was given a shot to relieve his pain. The ED staff told him to return if his pain continued.

Because her husband’s pain was not relieved after he returned home, his wife called the orthopedic doctor and requested her husband be admitted so the pain could be better managed. The doctor agreed. However, the patient’s pain continued. When the doctor finally got to see the patient, he removed the bandages and discovered that the hand was infected. Three separate antibiotics were ordered and the patient was transferred to another facility that had hyperbaric oxygen capabilities.2

The doctor at the second facility was not sure the hand could be saved due to the fact that the infection was caused by Clostridia. Two surgeries were performed, accompanied by antibiotic therapy, and the patient was discharged.

About a year later, the man’s care was taken over by another physician who was a hand specialist due to the lack of the left hand’s response to physical therapy and the patient’s continued complaints of stiffness and sensitivity in that hand. An additional surgery was warranted to remove adhesions and scar tissue at the site of the injury and to release the capsule of the joint of the ring finger. The patient was allowed to return to full activity about a month later.

The patient filed a suit against the initial physician who treated him at the first ED alleging that the physician was negligent in the care of his injury which caused the infection he suffered and the resulting complications. The patient also alleged his wife suffered loss of consortium (loss of companionship, affection and so forth). The trial court entered a judgment of liability on the part of the physician and granted the wife’s loss of consortium claim. The physician appealed the court’s decision.

The appellate court carefully discussed the applicable law and the record in the trial. It upheld the liability on the part of the physician because no initial IV antibiotic therapy was given to the patient. In addition, his failure to provide a sterile environment within which to clean and suture the patient’s wound violated the applicable standard of care.

Interestingly, the role of the ED nurses was a pivotal reason for the judgment for the patient. The patient testified that the ED nurses cut back his shirt to the elbow only and did not completely clean the hand or the arm, leaving soil, grease, and dried blood on the wound site and arm.3

Although the nurses conduct could have resulted in liability for the hospital under respondeat superior, both the trial court and the appellate court opined that the nurses were only following the orders of the physician and it was he who was in charge of and responsible for the care of his patient.

Although this case ended well for the nurses in that they were not named as defendants in the suit, in today’s world, in another state* or under other circumstances, they most probably would have been named. This case illustrates the antiquated belief that a nurse is not accountable or responsible for his or her own actions but simply follows the orders of a physician.

It is imperative that you follow infection control protocols adopted in your practice setting with whatever treatment you are providing. Not doing so subjects your patients to an unnecessary, arguably unavoidable, result that this patient endured. In addition, not doing so can clearly subject you to liability for failure to conform to the applicable standard of care in preventing infection in your patients.

FOOTNOTES

1. Roberts v. Lowry, 673 So. 2d 1323 (La. Ct. App. 1996).

2. Id., at 1326.

3. Legal Eagle Eye Newsletter for the Nursing Profession, “Clostridium Aseptic Technique”, September 1996, 4.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK ADVICE FROM A COMPETENT PROFESSIONAL.

 

*NOTE: This case was decided in Louisiana. Louisiana law is a civil law

state based on a French civil code established in 1804. A judge

makes rulings based on a direct interpretation of the code and/or

the judge’s own interpretation of the code.

In contrast, all U.S. states are common law states which rely on

past decisions in making present rulings. More likely than not,

precedent (case law decisions in prior cases) would dictate

potential liability on the part of the nurses in a common law

state.

ABOUT THE AUTHOR

Nancy Brent: Nursing

Nancy Brent: Nursing

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

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