Avoiding Liability Bulletin – February 2015
In this Utah case1, a nurse practitioner prescribed a number of medications for a male patient, including Concerta, Valium, Doxepin, Paxil, pregnenolone and testosterone. The nurse practitioner had a consulting physician and a “consultation and referral plan with him2, consistent with the requirements of the Utah Nurse Practice Act. The consultation and referral plan was defined by the Act as a “written plan jointly developed by the advanced practice registered nurse and a consulting physician that permits the advance practice registered nurse to prescribe schedule II-III controlled substances in consultation with the consulting physician”.3
While on these medications, the patient shot and killed his wife. The patient plead guilty to a charge of aggravated murder and went to prison, leaving their two minor children parentless4.
The children’s conservator filed a professional negligence suit in the Utah District Court against the physician, the advanced practice nurse, and the medical clinic where the advanced practice nurse worked, alleging that the physician and nurse were negligent in the prescription of the medications. The District Court held that the advanced practice nurse and hence the other two defendants “owed no duty of care to the plaintiffs because no patient-health care provider relationship existed, at the time of the underlying events, between the plantiffs…and defendants”5.
The plaintiffs filed an appeal with the Supreme Court of Utah, alleging that the decision of the District Court was incorrect and the defendants did owe a duty of care to the non-patient plaintiffs (the children). The Supreme Court agreed and reversed the decision of the District Court.
In another appeal by the children, through the conservator, the Utah Supreme Court held that the advanced practice nurse had a duty of reasonableness in her undeniable acts of prescribing medications for the father and that duty extended to third parties who might be injured as a foreseeable result of her negligence6. The advanced practice nurse entered into a voluntary settlement with the children.
The physician’s potential liability for the death of the children’s mother by their father was not yet resolved, however. The Utah Supreme Court again had to determine whether the physician was also negligent.
The consulting physician filed a motion to dismiss the still-pending case against him in the District Court.
The Utah Supreme Court upheld the decision of the District Court. In doing so, the Court carefully analyzed tort law, Utah case decisions, and the Utah Nurse Practice Act. Because the Act requires a consulting and referral agreement to be established, the Court concluded that the duty to seek the consultation rests with the advanced practice nurse and not the physician. Moreover, a medication-by-medication pre-review by the physician of any medications ordered pursuant to the agreement is not required. Absent a request for consultation by the nurse practitioner, there can be no liability on the physician’s part for the results of an “ill-advised prescriptive” treatment plan on the part of the nurse practitioner.7
In short, any liability that would result from the professional negligence of an advanced practice nurse’s medication regimen that results in a foreseeable risk to third parties rests solely with the advanced practice nurse.
By the way, the medical clinic was not granted its motion to be dismissed from the case after the District Court decision ruled the nurse practitioner had a duty to act in a non-negligent manner with third parties. The Court held the clinic could still be held vicariously liable in a negligence suit for the conduct of the nurse practitioner.8
This case is only controlling in the State of Utah and is based on the Utah Nurse Practice Act. However, implications can be gleaned from the decision which are applicable to all advanced nursing practice. They include:
- Review your nurse practice act and rules and their requirements for any written or oral consultation parameters, including those for the administration of narcotics;
- Carefully develop your consultation parameters jointly with your collaborating physician;
- When in doubt about a particular prescriptive or other treatment regimen, seek consultation from your consulting physician;
- Understand your own potential liability under professional negligence, which requires you to prevent unreasonable and foreseeable risks of harm to patients;
- Remember if you are an employee, your negligent conduct will most likely result in your employer being named as a defendant in the suit under the theory of resondeat superior ; and
- Keep your knowledge base current concerning medications and controlled substances and the interactions between them.
1. B.R. v. Rodier , No. 20121098 (Supreme Ct. of Utah 2015).
2. Id . at 1.
3. Id . at 1-2
4. Medical Law Perspectives (2015), “No Duty Of Physician To Consult Nurse on Per-Prescription Basis; Patient Harms Children, 1. Available at: http://medicallawperspectives.com/Content_Weekly/No-Duty-Of-Physician-To-Consult-Nurse-on-Per-Prescription-Basis-Patient-Harms-Children.aspx . Accessed January 27, 2015.
5. B.R.ex rel. Jeffs v. West , 275 P. 3rd 228 (Supreme Court of Utah 2012), 1.
6. Id .
7. B.R. v. Rodier , supra note 1; Legal Eagle Eye Newsletter for the Nursing Profession (February 2015), “Advanced Nursing Practice: Nurse Can Be Liable For Patient’s Violent Acting Out”, 6.
8. B.R.ex rel. v. Rodier, supra note 7, at 4, Footnote 1.
THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.