Medical malpractice claims may be asserted against any healthcare provider, including school nurses. The insured in this case, presented by NSO and CNA, was a registered nurse (RN) who was employed by a private school for adolescents with behavioral health conditions.
Summary
This case involves a 14-year-old male student with a history of autism, obesity and developmental delays. The insured RN had been employed by the school for ten years and was familiar with the student. On the date of the incident, the morning bus driver noted that the student was limping as he boarded the bus. At 8:30 a. m., the student arrived at school and complained of severe lower right leg pain. A teaching assistant immediately escorted the student to the nurse’s office. The RN conducted a physical exam which revealed a 4 cm X 4 cm reddened area on the student’s right medial calf and a purple discoloration on the 4
th toe of the right foot. The student was afebrile with normal pedal pulses. No swelling was observed at that time. These assessment findings were documented by the RN in the electronic health record.
At 8:40 a.m., the RN attempted to reach the student’s parents, as well as others on the emergency contact list, but was unable to reach anyone. Messages were left for all parties to call the school immediately. The RN believed that the student was stable and could return to the classroom while waiting to be picked up by a parent. At 9:40 a.m., the RN went to the classroom to check on the student, but did not physically reexamine his leg. The student continued to complain of moderate to severe pain, for which Ibuprofen was administered. One hour later, at 10:40 a. m, the RN checked on the student, noting that he had received only minimal relief from the pain medication. At this time, the RN did not conduct a visual examination of the leg and did not instruct the student to self-monitor the leg and to notify the teacher if the condition worsened. Although the student communicated to his classmates sitting nearby that he was in severe pain and was reportedly tearful at times, he did not express any complaints to teachers or other staff members.
At 11:00 a.m., the RN was called to cover a nearby school in the district for the lunch hour. Before leaving, he apprised the school’s principal and the student’s homeroom teacher that he needed to leave for an hour and asked them to monitor the student until he returned. Due to an emergency at the other school, the RN was delayed and did not return until 1:00 p.m. Upon his return, he noted that the student’s parents were waiting in the nurse’s office. The RN brought the student into the office and re-examined the leg in the presence of the parents. He noted a significant change in condition-- 3+ pitting edema and multiple areas of purple discoloration on the right foot and leg. The student remained afebrile and had positive pulses in the affected extremity. The RN advised the parents that the student required immediate medical attention and instructed them to take the student to the nearby emergency department or urgent care center. The parents stated that they would take the student to the pediatrician’s office. The RN advised them again that it would be best to go to the emergency department, but that if they chose to go to the pediatrician, they must go there directly so that the student would be evaluated urgently. The RN did not document this discussion.
At approximately 1:30 p.m., after leaving the school, the parents decided to stop for lunch on the way to the pediatrician’s office. At 2:15pm, as they were getting back into the car in the restaurant parking lot, the student collapsed and became unresponsive. Resuscitation efforts were instituted immediately by the student’s father and the student was transported to the hospital via ambulance, where he expired at 6:10 p.m. Based upon physical examination and laboratory studies performed at the hospital, the cause of death was determined to be sepsis due to necrotizing fasciitis - - although an autopsy was not performed.
Risk Management Comments
Approximately six months later, a lawsuit was filed by the parents (plaintiffs) asserting that the RN failed to recognize an emergent medical condition and that an immediate transfer to the hospital would have prevented the student’s death. In their depositions, the plaintiffs testified that they were not conversant with the diagnosis of necrotizing fasciitis and were not advised that immediate medical attention should be sought. Plaintiffs’ experts in infectious disease opined that the RN should have arranged for an immediate transfer to the hospital, preferably when he realized that the parents were unavailable. At the very latest, transfer should have been arranged at 1:00 p.m. when he noted that the student’s condition significantly deteriorated. Plaintiffs’ experts further asserted that the RN should have monitored the student’s condition more closely between 8:30 a.m. and 1:00 p.m., including visual assessments of the leg. They also contended that he should not have left campus to cover another school, as there was no qualified medical provider in the building to monitor the student. Although the plaintiffs’ experts admitted that diagnosing medical conditions is not within the scope of practice of a registered nurse, they testified that the RN’s failure to appreciate the potential risks related to the student’s symptoms represented a departure from the standard of care.
Defense experts argued that between 8:30 a.m. and 1:00 p.m., the student’s symptoms did not constitute a medical emergency. Moreover, when his condition changed, the RN adamantly advised the parents to seek emergent care. The plaintiffs’ attorney countered that the parents did not have an understanding of the potential clinical risks due to limited health literacy and that they were not informed of the risks associated with the student’s symptoms. The lack of nursing documentation regarding the instructions given to the parents created a significant challenge to the defense of this case. In retrospect, the RN admitted that it would have been a better course of action to call 911 when the student’s condition deteriorated and to document an informed refusal if the parents then insisted on going to the pediatrician’s office.
Resolution
This case had the potential for a high jury verdict, due to the decedent’s age and the sympathy factor potentially influencing a jury’s decision. Integral to the resolution plan of the defense team was the evaluation of the witnesses’ credibility and the likelihood that the jury would believe the plaintiffs’ testimony. The parents’ deposition testimony was compelling and sympathetic, and the defense opined that a jury may believe that the parents were not properly informed of the need for emergent medical care. Jurors’ opinions regarding whether the standard of care was fulfilled is based upon many factors, including the credibility of the witnesses and the experts’ deposition testimony, as well as the documentation in the electronic health record. In this case, the nurse’s documentation omitted details to support his testimony that he advised the parents of the risks of failing to seek immediate medical attention. Further complicating the defense was the RN’s testimony that he was not conversant with the symptoms of necrotizing fasciitis and that he had never treated a patient with this condition.
Based upon the above-referenced defense challenges and diminished potential for a successful defense verdict, coupled with the sympathy factor associated with the death of a young patient, a settlement was negotiated in mediation on behalf of the insured RN.
Total Incurred: More than $450,000.
(Note: Figures represent the payments made on behalf of the insured and do not include any payments that may have been made by co-defendants.)
Risk Management Recommendations
- Document all discussions with students/parents, and actions taken, including any treatment recommendations that were provided. Objective and concise documentation is essential for both continuity of care, as well as for the defense of a potential malpractice claim. A comprehensive electronic health record is critical to any legal defense.
- Conduct comprehensive examinations and re-assessments of students who are awaiting parent pick-up and further clinical evaluation.
- Educate the patient, parent and/or responsible party about the need for compliance with treatment recommendations, medication regimens and screening procedures.
- Assess the student’s/family’s health literacy level to ensure an adequate understanding of their role in the treatment plan. Consider using the “teach-back” method for communicating instructions about the treatment plan, using open-ended questions to prompt the student/parent to repeat critical information in their own words, thereby verifying their understanding.
- Engage in continuing education to maintain nursing assessment skills and up-to-date knowledge about potential clinical emergencies affecting the student population that is being served.
- Be prepared for student emergencies and align nursing practice with the NASN Emergency Preparedness Position Statement, “To optimize student health, NASN advocates for a school nurse to be present in school all day, every day, and this presence is especially beneficial in planning for and responding to emergency situations.”
- Ensure proper access to school nursing care in alignment with the National Association of School Nurses (NASN) Professional Practice Documents.
- Develop and implement policies and procedures to ensure student safety and provide for appropriate nursing coverage in the event that staffing limitations arise.
RESOURCES
Disclaimers
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. This material is for illustrative purposes and is not intended to constitute a contract. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, NSO websites are provided solely for convenience, and Aon, AIS, NSO and NSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., NSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.
Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc., a licensed producer in all states (TX 13695); (AR 100106022); in CA, MN, AIS Affinity Insurance Agency, Inc. (CA 0795465); in OK, AIS Affinity Insurance Services, Inc.; in CA, Aon Affinity Insurance Services, Inc., (CA 0G94493), Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY, AIS Affinity Insurance Agency.