Does work stoppage or strike create liability for patient abandonment?

By | 2019-07-09T16:31:48-04:00 July 3rd, 2019|0 Comments

A reader who is a school nurse at a private school is concerned about participating in a work stoppage or strike.

She points out that she would not be leaving the school or the students there — resulting in patient abandonment. Rather, this would involve never coming to work at all during the strike.

As I wrote in my blog, “Know How Your Union Is Legally Bound To Help You,” some nurses are members of unions, and school nurses are no exception. Member benefits include a union representative to help with potential problems in the workplace and negotiating your bargaining agreement with the union concerning wages, vacation time and staffing.

Concerted activities of employees

Another benefit of union representation is the member’s right to engage in “concerted activities for the purpose of bargaining or other mutual aid.” This ability to strike, and other components of the union and employer requirements, are governed by the National Labor Relations Act (NLRA).

The ability to legally strike can only occur if the bargaining agreement does not contain a no-strike clause.

When a strike is being considered by a union in a healthcare institution, which includes a health clinic, there are requirements that must be met before a strike can occur. One obligation is the union must not “engage in a strike, picketing or other concerted refusal to work” without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service, according to the National Labor Relations Board.

How is patient abandonment defined?

Patient abandonment was initially used in legal proceedings when a physician unilaterally stopped care to an individual patient, and the patient was not given time to obtain care elsewhere.

Throughout the years, patient abandonment also has been, and is now, applied to nurses.

In its 2009 position statement, “The Rights of Registered Nurses,” the American Nurses Association defined patient abandonment as a “unilateral severance of the established nurse-patient relationship without giving reasonable notice to the appropriate person so that arrangements can be made for continuation of nursing care by others.”

State nurse practice acts may or may not define patient abandonment for purposes of professional licensure discipline.

For example, the Iowa Board of Nursing rules do not specifically define the term “abandonment.” However, one of its rules does say it is unethical if a nurse fails to report to, or leaves, a nursing assignment without properly notifying applicable supervisory personnel to ensure the safety and welfare of patients.

In contrast, the North Dakota Board of Nursing defines abandonment as “accepting the client assignment and disengaging the nurse and client relationship without giving notice to a qualified person.”

The North Dakota board also provides examples of what is and is not patient-client abandonment.

Examples include sleeping on the job, thus being unavailable to the assigned patient, and leaving work without reporting to the oncoming shift.

Situations not considered patient-client abandonment by the board include instances often called “employer abandonment,” because they are events between the employer and nurse employee over work issues. Such issues might include salary, working conditions or other circumstances affecting the delivery of professional nursing care to patients or clients.

A board of nursing has no authority over instances of employer abandonment or employer-related issues.

How do these principles apply to our reader?

It is important to remember almost anything can be alleged in a court of law or a complaint to a board of nursing. Even so, the “almost anything” has to be proven based on applicable law.

It is important to note the school nurse and her colleagues are members of a union and have the right to strike. Although it can be a difficult personal and professional decision, it may be the only solution to a problem school nurses face with employers.

Because the school nurses provide nursing services to students and others in the school-based health clinic, it would seem the notice mandate must be adhered to. Such a work stoppage cannot be done on a whim. This notice provides time for the employer to provide alternate nursing services to its students and others in the school-based clinic, either through administrators, volunteers or others who might step in during a strike.

The reader did not provide information concerning the state in which she worked, so it is unclear if her nurse practice act defines the term patient abandonment. Nor do we know why the strike would occur.

Without other information to the contrary, it seems this strike is a result of difficulties between the school nurse, other school employees and their employer. As such, the strike would be seen as an employer-employee abandonment or an issue over which a board has no jurisdiction.

A board of nursing might see a work stoppage as unethical. More likely than not, if reasonable notice was given to the employer by the union and the school nurse voted for the strike, an abandonment or unethical conduct allegation would not be sustainable.

What do you think of this reader’s situation? Have you had a similar experience? Share it in the comments below.

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Diabetes is one of the most common chronic diseases in school-age children. For students with diabetes to have a successful school experience, school nurses must be well-informed about the students’ special needs. The school nurse is the most appropriate person to coordinate the care of students with diabetes and train school staff on diabetes-related tasks and ways to treat any diabetes-related emergency. This module informs nurses about significant factors in planning and initiating care in the school setting for students with diabetes.


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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