Nurse’s Inaction Leads to Wrongful Death Lawsuit for Hospital

By | 2021-10-12T12:30:09-04:00 October 5th, 2021|0 Comments

If you work in a healthcare facility, such as a hospital or a nursing home, you know all too well that one of your important obligations is to inform the patient’s physician or advanced practice registered nurse (APRN) when the patient’s condition changes.

In his article, Malpractice Risks of Health Care Communication Failures, Jock Hoffman states that one-third of medical malpractice cases can be directly tied to communication breakdowns.

In the following unpublished case, a communication breakdown is outlined wherein a nurse’s failure to report to the physician a major change in her patient’s condition is said to have caused the patient’s death. A wrongful death lawsuit soon follows.

Details of the Case

The 62-year-old female patient had a history of abdominal surgeries, including gastric bypass surgery. The surgeries resulted in “excessive” scar tissue.

She went to the ED complaining of abdominal pain and vomiting that began the day before. The patient’s lungs were clear, but due to her symptoms, she was admitted for IV fluids to rehydrate her. Treatment for pain and nausea also was administered.

The patient was in the hospital for a few days, and a doctor diagnosed her with constipation. She was placed on “bowel rest” by limiting the amount of food she could eat. No surgery was indicated, according to the physician.

Two days after her admission, nursing notes indicated that the patient was “spitting up into emesis bag” and had “dry heaves.” She was examined again by another physician who determined she was still constipated but was breathing “normally.” The second physician was concerned, however, that the patient should be transferred and seen by the surgeon who did the gastric bypass surgery. She was to be transferred the next morning.

That night, the patient vomited numerous times during the night shift. The RN caring for her documented in the patient’s medical record that the patient expressed a feeling like a “knot in [her] abdom[e]n” but her pain was decreased from earlier in the day.

The patient also was nauseous, had a small emesis, and a bowel movement.

The nurse did not observe any signs of aspiration, documenting that the patient’s lungs were clear. Later that night, the RN documented that the patient had another emesis, “small, tan-colored…with a faint bowel odor throughout the night.” The RN did not contact a doctor about these events.

When the patient was transferred in the morning, the RN’s documentation indicated the patient was stable and her condition “did not seem to have deteriorated” since she began her care the night before.

The patient was transferred and arrived at the second hospital “looking comfortable, not in distress” according to her physician’s admitting note. However, the patient’s condition soon changed.

The white-blood-cell count was low, a CAT scan showed a bowel obstruction and evidence of pneumonia in sections of her lungs, despite no symptoms of pneumonia. Antibiotics to treat the pneumonia were immediately administered, but the patient’s condition continued to worsen. She died the following day. The autopsy listed the patient’s death as “pneumonia as a result of aspiration.”

Son Files Wrongful Death Lawsuit

The patient’s son filed his case against the hospital and the physicians who cared for his mother. Before trial, several of the physicians were dismissed from the case by agreement of the parties. The case against the hospital and the surgeon who admitted her to the second hospital went before a jury.

The jury returned a verdict for the son, finding that the professional negligence of the hospital nurses caused the deceased patient’s death, and awarded him $500,000.

However, the trial court later granted judgment as a matter of law (JMOL) for the hospital and granted the hospital’s motion for a new trial.

The son filed an appeal, disputing both of the trial court’s decisions.

The Appellate Court Holding

The appeals court held that the trial court was in error by granting the JMOL for the hospital. The court stated that the expert opinion testimony during trial was sufficient to support the jury’s verdict; that is, that the RN’s failure to notify a physician of the emesis tan in color and its odor “substantially contributed” to the patient’s death.

It characterized the emesis as a “significant change…which triggered the nurse’s legal duty to contact the physician.”

The trial court also erred in granting the hospital’s motion for a new trial, holding that the hospital’s claim of no evidence being presented about the professional negligence of the nursing staff in general, was not true.

The appellate court discussed at length the evidence presented concerning not only the RN’s care, but also the general nursing care given to the patient at the hospital. Since the hospital did not object then, it was not allowable to do so at the appellate level.

The court reversed the grant of the JMOL for the hospital and the grant of a new trial. It remanded the case with instructions to reinstate the jury verdict for the son.

What This Wrongful Death Case Means for You

It is difficult to understand why the RN caring for this patient did not think that the change in the patient’s condition — the emesis’ color and its odor — would not be a reason to contact the physician.

The RN’s omission, however, is perhaps a vivid example of not being mindful when one needs to be. It is important that you always be mindful when providing patient care.

As a nurse employee, you always carry the burden on your shoulders of your own potential legal liability, and also that of your employer. The RN was not a named defendant in the suit. However, her failure to adhere to the standard of care with this patient resulted in the hospital’s vicarious (indirect) liability.

Although not a named defendant in this wrongful death suit, the RN most likely faced a professional disciplinary action by the state board of nursing if she was reported to the board. Such a reporting could be initiated by the deceased patient’s son, the hospital or, if mandated by state law, the court itself.

Remember that professional disciplinary action is always a possibility when you violate your nurse practice act and its rules. Constant review of both is essential.


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Aspiration: Preventing a Deadly Complication in Vulnerable Populations
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Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. Nurses also have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

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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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