Failure to monitor; failure to properly recognize drug overdose; failure to call for emergency services

Medical malpractice claims may be asserted against any healthcare practitioner, including nurses. This case involves an independently contracted registered nurse who provided nursing consultation to a residential facility that cared for adults with mild to moderate mental health issues (besides substance abuse).

Total Incurred: Greater than $59,000

(Monetary amounts represent only expense payments made on behalf of the insured registered nurse and does not reflect any payments made on behalf of the other parties involved in this claim.)

This case involves an adult foster care resident at a residential care facility who was his own guardian. His medical history included a traumatic brain injury, anxiety, schizoaffective disorder, and a history of substance abuse. He received medications from the facility’s staff twice per-day, in the morning and evening.

The resident had a history of sleeping-in and isolating himself in his room. He typically had to be awakened in the morning to receive his morning medications. After receiving his medications, he would usually fall back asleep.

The resident’s stay was typically uneventful except for a few times he appeared lethargic and disoriented. Each time this happened he would state that his mother provided him with a narcotic medication (Vicodin) for pain.

On one occasion, the resident fell into a deep sleep and could not be awakened, though he was visibly and audibly breathing. Our insured registered nurse, who was an independent contractor and provided nursing consultation for the facility, was contacted via phone. She told the facility staff to monitor him every 30 minutes and hold his medications until he woke up. When the resident awoke, he broke into an office, accessed a locked medicine cabinet and allegedly ingested Tylenol PM. After this incident, he was taken to a local hospital for evaluation.

On a second occasion, the resident reportedly took 16 anti-nausea/motion sickness pills from his mother and ingested them over the course of an evening. He was again taken to the hospital for evaluation.

Two weeks after the second incident, the resident spent the day with his mother. When he came back to the facility he was very excitable.

The next morning (8:00a.m.) the staff could not wake the resident for his morning medications despite repeated attempts. The staff contacted our nurse at 9:30a.m. and requested she come to the facility and assess the patient. When she arrived, she found the resident sleeping and breathing normally (10:30a.m.). The insured tried to wake the patient, but he responded with a grunt and a dismissive shoulder shrug. The nurse interpreted this as a deliberate response from the resident. The nurse spoke with the facility’s supervisor via phone and reported that the resident was being uncooperative. The nurse then instructed the staff to continue attempts to wake the resident and to call her when he awoke. The nurse left soon after giving those instructions and speaking to the supervisor.

The first shift staff continued to check-in on the resident every 30-minutes until 1:00p.m. When the second shift arrived at 1:30p.m., the technician who checked on the resident found that he was not breathing and called 911. Resuscitation efforts were unsuccessful, and the patient was pronounced dead on-scene at approximately 2:30p.m.

The medical examiner attributed the resident’s cause of death to mixed drug toxicity, including morphine, phenobarbital, and clonazepam. Out of those drugs, the patient was only prescribed clonazepam.

Risk Management Comments

The resident’s mother filed a lawsuit against the residential facility, the healthcare company that provided nurse staffing assistance, and our insured nurse on behalf of the deceased. The mother claimed that our insured:

Failed to provide adequate care to the patient on the day of his death by not calling 911 when she could not wake him.

  • Failed to recommend that the resident have a urine drug test when he arrived back at the facility from his mother’s home.
  • Failed to communicate the need for emergency treatment to the supervisor on the day of the patient’s death.

During discovery, the mother testified she had morphine pills at home in an unsecured location, and that she noticed that a number of morphine pills were missing. However, at no point was this information communicated to the facility or to our insured nurse.

Several defense experts were asked to review this claim, and most were supportive of the nurse’s actions. There was one concern that the nurse’s role was one of consultation only and she may have acted outside of that role by responding to requests to come and check on the patient. The experts concluded that the claims asserted against her were too far outside the scope of practice as she could not perform a drug screen on the patient without an order from a provider.

Resolution

Considering the positive expert opinions, and because the insured was an independent contractor who was not responsible for the treatment of residents, demands for a settlement were turned down. 

The case went to a jury trial that lasted several days and resulted in the successful defense of our insured.

Risk Management Recommendations

  • Understand and comply with state regulations relevant to the consultant role within the particular healthcare delivery model.
  • Ensure that the description of the position accurately reflects the scope of practice, as well as the scope of services and specific job duties to be performed.
  • Engage an attorney to review all contracts involving consulting services for a clinical facility prior to signing and executing such contracts.
  • Read the employment contract carefully to determine the full extent of responsibility being assumed, and request that legal counsel negotiate the removal of inappropriate, overly broad or undesirable descriptions of duties and responsibilities.
  • Review facility policy and procedure manuals to determine if policies and procedures comply with required standards of care.

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