Nurse Cleared of Diverting Narcotics Considers Suing

By | 2021-09-14T12:38:08-04:00 September 14th, 2021|0 Comments

An RN reported an unfortunate experience in which she was accused of diverting narcotics, which turned out not to be true.

She underwent a breathalyzer test and a urine drug screen, both of which were negative. Her urine test result was not available for four days, despite being done at the workplace’s laboratory, where the usual turn-around-time is half an hour.

One of the RN’s co-workers also told her fellow staff members and resident physicians that she was taken off the floor for diversion of narcotics.

It was determined that the RN was not diverting narcotics, but no apologies were offered to her. There was no subsequent report to the board of nursing because there was no proof of any diversion.

She is currently still working at the facility on the same units she has worked on for 15 years. However, she wonders if she has any legal recourse against the hospital and the co-worker who made the false accusations.

What Might the RN Do Legally?

This is an unfortunate incident for the RN, and it is certainly understandable that she is considering some legal recourse against her employer and her co-worker. As the RN stated in her inquiry, she is concerned about filing a lawsuit or taking other action because co-workers may not support her for fear of her suing them in the future. She also may gain a reputation as a “troublemaker” by other healthcare employers if she were to seek employment at another healthcare facility.

Such a decision is a personal one, and one component of the decision-making process is considering the chances of a successful legal challenge. A consultation with a nurse attorney or general practice attorney to become better informed could aid the RN in that decision. A consultation with an attorney also will help determine exactly what causes of action (allegations) against the employer might be.

Possible Causes of Action

In this case, one of the RN’s concerns would be the employer appearing not to follow its established policies and procedures for drug testing, specifically urine tests. Additionally, understanding whether or not the adopted policy is consistent with the state’s law on drug testing.

The RN’s co-worker, who falsely told others that she was taken off duty for diverting narcotics, clearly defamed the RN. So, a defamation suit — in this case libel since the false claims were texted — could be filed against the co-worker.

The employer also may be named in the defamation suit under the theory of Respondeat superior. The employer’s inclusion also might be based on an adopted code of conduct policy governing employees’ actions.

For example, the code might include not speaking untruths about fellow co-workers, that hospital iPhones are not to be used for personal use, and that a fellow staff member’s privacy and confidentiality must not be violated.

If the employer knew of the staff member’s texts and did not discipline the employee pursuant to its code and disciplinary policy, a court may find it legally responsible.

The RN also wonders if the Health Insurance Portability and Accountability Act (HIPAA) might be applicable to her.

She contends that because the urine sample was taken and tested at the hospital at which she works, she became a patient. Because she was a patient, she continues, personal health information (PHI) that was shared by the co-worker was a violation of HIPAA’s Privacy Rule.

This is an interesting possibility. It is true that an employee is a patient of a HIPAA provider (it is assumed that this employer is), then in this case a breach would have occurred.

Also of interest is the fact that HIPAA refers to “individual” (not patient) and defines an individual under the act as “the person who is the subject of protected health information.”

This definition could refer to the RN, and, if so, she might be able to claim a violation of her PHI in this situation. She can, and you can, file a complaint online at HIPAA’s Complaint Portal.

It is important for the RN to know that HIPAA does not provide a “private right of action” for a violation. Rather, any violation that is proven allows the federal government to assess fines or penalties or to initiate a criminal case against the violator.

Any proceeds from fines that are imposed go to the government.

What Else Can You Learn From This Case?

Being accused of diverting narcotics is a major accusation. Whatever decision the RN makes will be the right one for her. Although legal wrongs occur, they are not always remedied by formal legal proceedings due to the many factors that must be considered before deciding to take legal recourse.

If you find yourself in any situation where you have the option of filing a lawsuit, consider the pros and cons carefully. With the direction of a nurse attorney or attorney, your decision will be what is best for you.

Take these related courses:

HIPAA and Confidentiality: Practice May Change, But Principles Endure
(1 contact hr)
In this course, you will learn about parts of HIPAA, especially as they concern nursing and other health professionals and the protection of healthcare information. Because you play a key role in the production of healthcare information, you play a key role in its protection.

The Nurses’ Bill of Rights
(1 contact hr)
The Nurses’ Bill of Rights is a statement of professional rights rather than a legal document. It establishes an informal covenant between nurses and their employing institutions to help guide organizational policy and to focus discussions between nurses and employers on issues related to patient care and working conditions. Not every nurse is familiar with the Nurses’ Bill of Rights or related rights described by various state boards of nursing and nursing associations in their position statements. This course provides an overview of them.

Ethics for Nurses
(1 contact hr)
Healthcare professionals are held to high standards of moral character and an expectation to be patient advocates. This innate drive to do “what is right,” arguably a prerequisite for pursuing a career in patient care, is rooted in history, law, clinical education, and current daily practice. What do we do when this line is blurred, and no clear answer appears to all involved parties? This course seeks to give the nurse understanding of ethical decision-making in the acute care setting as well as how to manage instances when our own values and judgement do not align with that of the patient, family, or care team.


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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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