Maine Medical Malpractice News
A Hovermale Law Publication
Issue #7 Summer 2004

NURSING NEGLIGENCE - Part II:

The last issue dealt with common areas of nursing negligence found in a hospital setting. This article will highlight common areas of nursing negligence found in other settings.

Long Term Care Facilities
Assisted living facilities, nursing homes and other long-term care facilities are staffed by nurses of all levels. These include registered nurses (RNs), certified nursing assistants (CNAs), home health aids, personal care assistants, nurse's aids, patient care technicians and licensed practical nurses (LPNs). They all have different functions, primarily depending upon their level of education and licensure. RNs and LPNs need to be licensed by the state. CNAs and other care aids and assistants do not need to be licensed. CNAs are the people who, for the most part, perform the most basic needs for patients. They work under the supervision of a nurse. They are key to providing vital information on the patient's condition to the nurse. They perform tasks such as dressing, bathing, feeding, toileting, vital signs, catheter care, answering call lights in a timely fashion, assisting with walking, range of motion exercises, lifting, making beds, reporting changes, turning patients, watching for potentially dangerous situations, and documenting.

Licensed practical nurses (LPNs) must have a high school diploma and complete a one-year educational program and pass a licensing exam. They also provide basic bedside care taking vital signs such as temperature, blood pressure, pulse and respiration. They may also give injections, enemas, monitor catheters, apply dressings, treat bedsores and monitor and report adverse reactions to medications, treatments, and changes in condition. They may collect samples for testing; perform routine laboratory tests; feed patients; record food and fluid intake and output. They may also assist with bathing, dressing and personal hygiene.

The most common areas of negligence of the CNAs, LPNs and other aids are either allowing a patient to move without assistance when assistance is needed, or trying to help a patient alone when two or more assists are necessary. A failure to report significant changes is also an area of common negligence. Failure to make sure bed rails are up and neglecting to keep an eye out for patient safety are other common areas of negligence.

In a long-term care facility, there is usually one RN on duty for any particular ward or wing who is the charge nurse or supervising nurse. This is the person to whom all of the aids report.

The RN has the responsibility of reporting significant changes to physicians and supervising the CNAs, LPNs and other aids.

Staffing is usually a problem at long term care facilities. The jobs of the CNA, LPNs and other aids are relatively low paying; require long hours with the responsibility for caring for a lot of patients. As pointed out in other issues, DHS has minimum staffing requirements, but these are just how they are labeled-minimum. Staffing should be investigated as a contributor in all long-term care facility nursing negligence cases.

Visiting Nurse Groups
More and more nurses are being employed in home care agencies. Their records usually provide a wealth of information about the condition of the patient following discharge from a hospital. Developing infections may be evident. Changes in strength, neurological condition, and changes in other systems are all areas where visiting nurses can and should document. They usually fill out detailed forms on every visit and send those to the appropriate caregivers. As more and more people are discharged from hospitals after shorter and shorter stays, visiting nurse's care will become more important.

I have seen relatively few cases arise from nursing errors in a doctor office setting. Occupational health clinics rely on nurses almost exclusively to perform pre-employment screening evaluations and triage and treat injured workers. Improper screening of a potential employee can provide grounds for a negligence action. Sending someone back to work too soon also can provide grounds for a negligence action should an unfortunate result occur.

If you have a claim that you think involves improper nursing care, feel free to call 1-800-780-7231. I'll be happy to discuss this with you.

NEWS ITEMS:

Maine Medical Malpractice Cases
Since the last edition of Maine Medical Malpractice News, the Law Court has decided one medical malpractice case. In Lever v. Acadia Hospital, Decision #2004 ME 35, decided March 15, 2004, the Court reversed a summary judgment against a plaintiff on the basis of sovereign immunity. Lever had a history of mental illness. He ended up in jail after breaking into a home because he believed a light in the home was sending him a message. He got better over the next two days, appeared for a bail hearing and was released on his own recognizance with the bail condition that he should immediately seek admission or treatment at Acadia Hospital where he had treated in the past. For some reason, on release, he was transported to Eastern Maine Medical Center for evaluation. There was a question of whether one purpose of the evaluation was to evaluate for involuntary commitment. Lever was released. Two days later he was shot by police as he attempted another break in. He brought suit against Acadia and EMMC. The trial court on summary judgment held that Eastern Maine was acting as an agent for Acadia Hospital who was evaluating Lever for involuntary commitment and thus immune under the Maine Tort Claims Act.

The Law Court reversed and found that there was a disputed material fact regarding the purpose for which the plaintiff was transported to EMMC and evaluated by EMMC and Acadia personnel. It is not clear from the decision whether immunity attaches when the evaluation is solely for involuntary commitment or whether it can attach when involuntary commitment is the primary purpose of the visit.

Important Case on Loss of a Chance
In a thorough, well-reasoned decision that should guide courts throughout the country in failure to diagnose cancer cases, the New Jersey Supreme Court has recently decided that if the failure to diagnose increased the risk of a bad result and the jury finds that risk was a substantial factor in bringing about the result, the plaintiff has met his proximate cause burden.

In Verdicchio v. Ricca, 843 A.2d 1042(NJ 2004), the New Jersey Supreme Court analyzed in depth the issue of proximate cause in a failure to diagnose cancer case. The Court correctly analyzed these cases as ones of concurrent causation - where two or more forces operate to bring about a result. Precisely tracking Maine law, the New Jersey Court reaffirmed that when a defendant's negligence combines with a pre-existing condition to cause harm, the issue for the jury is whether the defendant's deviation from the standard of care increased the risk of an injury. If so, that conduct is deemed to be a cause in fact of the injury and the jury must determine whether the increased risk was a substantial factor in bringing about the harm that occurred. New Jersey defines substantial factor exactly the way Maine does - the defendant's negligence need not be the sole or primary factor producing the injury, it need only be substantial. There may be several substantial factors contributing to the same result. The Court in Verdicchio grounded its analysis in part on the Restatement of Torts, §323 A which subjects a defendant to liability for his failure to exercise reasonable care if that failure increased the risk of harm.

The Court reasoned that the law does not require a plaintiff to prove to a reasonable medical probability that proper diagnostic care would have resulted in avoiding the harm because that would permit healthcare providers to evade liability because of the evidentiary uncertainties created by their own negligent omissions.

The plaintiff need not prove the cancer had not metastasized by the date of the negligent act. The plaintiff is not even required to establish statistical probabilities of survival. He only needs to prove that the delay in diagnosis increased the risk he would not be treated effectively.

Also as in Maine, it is then the defendant's burden to prove what portion of the damages is attributable to the pre-existing condition. If he cannot, the defendant is responsible for all the plaintiff's damages.