December 2004 
Print version: 2004;72:409-412.
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Legal Briefs Just following orders Gene A. Blumenreich, JD Nutter, McClennen & Fish, LLP Boston, Massachusetts

In September, the Supreme Court of South Carolina issued an opinion in the case of Durham v Vinson (2003 WL 23769885 (SC)). At the time this column went to press, the opinion had not been released for publication and could be revised or withdrawn. The case raised a number of issues of interest to nurse anesthetists whether or not it is revised or even withdrawn. The issue before the appellate court was the extent to which a jury can be told that someone refused to provide credentialing records when those records were confidential and, by law, did not have to be provided. While this issue is certainly worthy of discussion, the issue that intrigued me the most was one that was suggested by the facts but never discussed in the decision.

According to the opinion, the plaintiff had been diagnosed with acid reflux and a hiatal hernia. The surgeon, who was not board certified, attempted to repair the hernia by performing a laparoscopic Nissen fundoplication, a surgical proceeding where a portion of the stomach is wrapped around the lower end of the esophagus to keep stomach acid from backing into the esophagus. The procedure did not provide relief and within 4 days, 2 follow-up procedures were performed. None of the operations could be considered a success. In the first follow-up operation, the patient aspirated and in the second, the Certified Registered Nurse Anesthetist (CRNA), following the surgeon’s order, perforated the patient’s esophagus while placing a dilator. The CRNA had protested 3 times that the esophagus was too tight. Then, she did as she was told, inserting the dilator and perforating the esophagus.

After the second surgery, the patient could not breathe without mechanical assistance and had to be transferred to the critical care unit. Nonetheless, the surgeon assured the family that everything had gone well and that the patient had been transferred to the critical care unit “only as a precaution.” When family members expressed concern about the patient’s condition, the surgeon prescribed Valium for the patient’s daughter and suggested she distribute it among her relatives. The patient developed adult respiratory distress syndrome and pulmonary thrombosis. At trial, the jury awarded the patient’s family $2,250,000 in actual damages and $15 million in punitive damages.

One of the issues that the surgeon raised on appeal was that the patient’s attorney had implied that the surgeon was not completely truthful because the surgeon had provided only a portion of his hospital privileging file. In South Carolina, as in many states, documents acquired by the credentials committee are confidential and may not be introduced into evidence in civil trials. The purpose of granting confidentiality is to encourage credentials committees to operate with complete candor and to be open in their deliberations. Would parties freely provide information to these committees if the information was open to patients and could be introduced in civil trials? Physicians and other parties with information might be reluctant to share information with a peer review committee if the committee was going to make it publicly available. And, as in other confidential areas, the privilege would be undermined if juries can be asked to speculate why someone took advantage of it. During the trial of Durham v Vinson, the patient’s attorney asked the surgeon about the information he had provided to the privileging committee. Relying on the peer review statute, the surgeon said that it was confidential and refused to provide it or to describe it.

Is a new trial justified?
On appeal, the surgeon argued that questions concerning material he did not have to provide violated his rights. The patient’s attorney attempted to justify his actions by arguing that the surgeon’s attorney was the one who raised the issue. In his opening statements, the patient’s attorney pointed out that the surgeon was not board certified in surgery. The surgeon’s attorney then responded that the surgeon did not have to be board certified and to justify the surgeon’s lack of board certification, the surgeon’s attorney explained that the surgeon had, nonetheless, proven he was qualified because he had had to convince the credentials committee of the hospital that he was sufficiently competent to be given privileges to perform the procedure. Based on this casual mention of the surgeon’s appearance before the credentials committee, the plaintiff’s attorney claimed that the surgeon had introduced the topic of the credentials committee and could be questioned at length about what he told the credentials committee, confidential or not. The appeals court ruled that the trial judge had made a mistake in allowing the patient’s attorney to question the surgeon about information that was provided to the credentials committee.

You might think that this mistake—violating a doctor’s basic rights to protect what he had, in confidence, provided to the credentials committee—would entitle the surgeon to a new trial. The appellate court found that the trial court made a mistake permitting the patient’s attorney to question him about something he should not have been questioned about. Would this have left the impression that the surgeon was unqualified (and deceitful as well)?

The appellate court did not, however, reverse the decision. Taking an appeal is not like a game of tag where you are either “it” or “not it.” The role of an appellate court, when an error is discovered, is more complex. Not only are trials very expensive for the parties, they are also costly to the government that provides the courtrooms, judges and juries. Appeal courts do not order a new trial unless the mistake is likely to have affected the outcome. As one court wrote: “Thus, an appellate court is not automatically justified in conducting a trial de novo by the mere discovery of an error…the appellate court must first measure the gravity or degree of the error” (Griffin v Kinberger, 647 So. 2d 1270 (LA. App., 1994), at page 1278).

So the court in the Durham v Vinson case had to decide if the error was serious enough to justify a reversal and a new trial. The appellate court first identified the 2 areas that the error could have affected: (1) the surgeon’s liability and (2) the surgeon’s truthfulness. Insofar as liability went, the court noted that the other evidence of the surgeon’s liability was “overwhelming.” Even the surgeon’s own experts agreed that he had deviated from the standard of care in essentially ordering someone to perforate the esophagus. With respect to the surgeon’s truthfulness, the court noted that there was also other evidence bearing on the surgeon’s truthfulness.

There was other properly admitted evidence that indicated that [the surgeon] was being deceitful, such as (1) failing to indicate his fellowship program was unaccredited on his curriculum vitae, (2) telling [the patient’s] family that [the patient] was fine and had only been placed in the CCU as a precaution, (3) failing to call a specialist upon the family’s request, (4) misinforming his own expert about the training he had in performing [laporoscopic Nissen fundoplication] and (5) attempting to shift the blame for [the patient’s] aspiration on another doctor.

Based on all of the evidence, the appellate court felt that, the jury’s view of the surgeon’s liability and truthfulness was unlikely to be affected by whether or not he had refused to provide the records protected by confidentiality. Thus, although the trial judge should not have permitted the patient’s attorney to question the surgeon about the records provided to the credentials committee, given the evidence bearing on both liability and truthfulness, it was unlikely that the mistake would have affected the outcome and a new trial was not justified.

The Durham case illustrates the roles of the trial court, observing demeanor and personality, and the more deliberate and isolated appellate court. However, I thought that the most interesting aspect of the Durham case was an issue suggested by the facts and not even discussed in the opinion. The CRNA had followed the surgeon’s orders to insert a dilator even though she had protested 3 times that the esophagus was too tight. When she finally inserted the dilator, she turned out to have been right and perforated the esophagus.

AANA provides guidance
The American Associaton of Nurse Anesthetists (AANA) Code of Ethics provides us with guidance.¹ Section 3 provides that “Certified Registered Nurse Anesthetists are responsible and accountable for the services that they render and the actions that they take.” Section 3.1. provides that “The CRNA, as an independently licensed professional, is responsible and accountable for judgments made and actions taken in his or her professional practice. Neither physician orders nor institutional policies relieve the CRNA of responsibility for his or her judgments made or actions taken.”

We do not know if the CRNA in the Durham case escaped liability. What should a CRNA do when ordered to do something the CRNA knows to be wrong? When I first looked at this question several years ago, my conclusion was predominately based on what I considered to be a practical consideration. President John Kennedy once quoted an old proverb “Victory has a thousand fathers, while defeat is an orphan.” Looking at cases in which nurses had caused damage when following physician orders, I discovered a common thread. In almost every case, there was a factual issue as to whether the physician actually issued the order on which the nurse was relying. When things had gone wrong, physicians frequently testified that the nurse had misheard what they had said. Juries were in the unenviable position of trying to figure out if the physician was avoiding liability by denying he had issued the order or if the nurse was avoiding liability by blaming the physician.

Govito v West Jersey Health System, Inc.
In researching this article, a review of more recent cases shows that the courts now have a much better understanding of the role of nursing. Nurses play a critical role in the healthcare delivery system, and courts expect the same thing of nurses as the AANA expects of its members. Nurses must use their education and judgment to prevent harm to patients. In Govito v West Jersey Health System, Inc., the New Jersey Superior Court collected a number of statements from courts about the modern role of nursing:

The role of nursing and nurses in a hospital setting has not been static but has dynamically responded to the changing nature of the delivery of health care services, specifically in a hospital setting….

[T]he role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders.

[N]urses and other physicians’ assistants play a much greater role in the actual diagnosis and treatment of human ailments than previously. The role of the nurse is critical ... in modern medicine. Her expertise is different from, but no less exalted than, that of the physician.

Professional nursing ... is in a period of rapid and progressive change in response to the growth of biomedical knowledge, changes in patterns of demand for health services, and the evolution of professional relationships among nurses, physicians and other health professions.

(Govito v New Jersey Health System, Inc., 332 N.J. Super 293, 753 A.2d 716 (2000). Internal quotations were omitted.)

Of course, the court in Govito had all of these nice things to say about nursing because they were holding that nurses were not as protected by the laws of libel as less critical professions. In Govito, the nurse was a “public figure” and could not sue when wrongly accused of diverting drugs and, a little too publicly, being made the subject of an intervention. Even if the public humiliation would have been libel or slander if directed against a member of another profession, the “interveners” had a “qualified privilege” to negligently libel a nurse because of nursing’s importance in healthcare.

Berdyck v Shinde
Berdyck v Shinde (66 Ohio St. 3d 573, 613 N.E. 2d 1014 (1993)) was an obstetrics case in which both the obstetrician and the obstetrical nurse failed to diagnose or treat preeclampsia. The obstetrical nurse apparently lacked the education to spot [I might have written “diagnose” instead of “spot,” but we all know that only a physician can “diagnose”] preeclampsia. The hospital that employed the nurse attempted to avoid liability on the grounds that she was following a physician’s orders. The court stated that

…the hospital and its employees have a duty to follow the orders of an attending physician, of which the duty to keep the physicians informed is an integral part, but that merely following the orders of a physician is not the full extent of the duty of care owed to a patient by a nurse… In order to satisfy that duty to its full extent, a nurse must perform a competent nursing assessment of the patient’s condition according to the standards of conduct of a nurse practitioner. The evidence, if believed, reasonably permits a conclusion that the nurses here failed in that duty. (613 NE 2d 1014 at 1023)

A nurse who concludes that an attending physician has misdiagnosed a condition or has not prescribed the appropriate course of treatment may not modify the course set by the physician simply because the nurse holds a different view. To permit that conduct would allow the nurse to perform tasks of diagnosis and treatment denied to the nurse by law…However, the nurse is not prohibited from calling on or consulting with nurse supervisors or with other physicians on the hospital’s staff concerning those matters, and when the patient’s condition reasonably requires it the nurse has a duty to do those tasks when they are within the ordinary care and skill required by the relevant standard of conduct. Of course, hospitals and the nurses they employ, owe a duty to every patient whom they admit to save the patient from an illegal operation or false, fraudulent or fictitious medical treatment…. (613 N.E. 2d 1014 at 1024)

Toth v Community Hospital
Toth v Community Hospital (22 NY 2d 255, 239 N.E. 2d 368, 292 NYS 2d 440 (1968)) is a relatively old case and shows that this aspect of nursing has been recognized by the courts for more than 35 years. Toth involved a premature baby who became blind from excess exposure to oxygen. The claim was that the hospital’s nursing staff had an obligation to correct the order of a physician who ordered 50% to 60% oxygen. The court said, “The primary duty of a hospital’s nursing staff is to follow the physician’s orders, and a hospital is normally protected from tort liability if its staff follows the orders.” But then, the court added, in a footnote, that there was an exception. “[W]here the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudent (sic) requires inquiry into the correctness of the orders….” (239 N.E. 2d at 374). In a very complicated example of “what did they know and when did they know it,” the court decided that, in 1953, a pediatrician was within the standard of practice when ordering 40% oxygen to be increased to 60% oxygen when necessary. At trial, there was evidence that the nursing staff had not followed orders and administered oxygen at 60% all of the time. The case was sent back for further proceedings as to whether the physician should have been liable for failing to observe that his orders were not being followed and too much oxygen was being delivered.

Columbia Medical Center of Las Colinas v Bush
In Columbia Medical Center of Las Colinas v Bush (122 S.W. 3d 835, Texas, 2003), both the practical and theoretical sides of this issue were illustrated. A 46-year-old man suffered from ventricular tachycardia or rapid heartbeat. During a particularly bad episode he had a friend drive him to the emergency room. He was put on the conservative treatment and when that did not work, the emergency room doctor contacted the on-call cardiologist. Following the consult, the emergency room doctor ordered 5 mg of verapamil. The court quoted from the Advanced Cardiac Life Support (ACLS) manual:

Administration of [V]erapamil to a patient with [ventricular tachycardia] can be a lethal error. Verapamil can accelerate the heart rate and decrease the blood pressure…. Authors have reported numerous examples of adverse effects, including death. Do not give Verapamil to patients with a wide complex tachycardia unless the tachycardia is known with certainty to be supra ventricular in origin.

As they testified, 2 nurses in the emergency room, a paramedic working in the emergency room as an employee, and the emergency room doctor were all certified in ACLS, and all should have known that verapamil was contraindicated. The first nurse heard the order for verapamil and asked the emergency room doctor “Verapamil, are you sure?” The second nurse, the head nurse who happened to be in the emergency room at the time, testified that she had a serious question about the appropriateness of verapamil. She acknowledged that the nursing standard of care required her to intervene if she or a nurse she was supervising had a serious question about the administration of a medicine involving an extreme risk. Nonetheless, she failed to intervene. The paramedic also knew that there was a risk administering verapamil. Nonetheless, the paramedic followed the order and administered the drug to tragic consequences. The emergency room physician testified that she also was ACLS certified and knew that the drug was contraindicated. She testified that she was satisfied with her consultation with the on-call cardiologist and had been comfortable ordering the administration of verapamil. The on-call cardiologist testified that he had been consulted while driving home and was unclear what the patient’s vital signs and diagnosis were. He thought the emergency room staff was going to wait for him to return to the hospital. He claimed that in his conference with the emergency room nurse, he was only talking hypothetically about the nature of tachycardia. He was not suggesting that verapamil be administered; he was merely educating the emergency room doctor about types of tachycardia.

The jury verdict in Columbia v Bush is hard to follow. Both doctors were exonerated, but the jury awarded damages against the hospital as the employer of the 2 nurses and the paramedic working in the emergency room. The Medical Center asserted that the jury’s verdict was inconsistent. The appellate court tried to defend the jury verdict. The jury could have found that each doctor believed he or she was doing the right thing. Perhaps the on-call cardiologist did not believe that he had ordered verapamil while, at the same time, the emergency room doctor believed she was justified in deferring to the consult who, she believed, had ordered her to administer it. Nonetheless, in finding the hospital liable, the jury was agreeing that when a nurse is ordered to do something that the nurse knows not to do, the nurse has an obligation not only to question the order but also to involve others if necessary to protect the patient. In the Bush case, both nurses admitted that they knew that verapamil was contraindicated, and both admitted that they had made insufficient efforts to intervene to protect the patient. They were found negligent despite the fact that they were clearly relying on a physician’s order and that this time there was no uncertainty as to whether or not the order they followed was actually issued by a physician.

Conclusion
It is difficult to know what to do when ordered by a physician to take an action that you know to be wrong or damaging. I have even heard attorneys and nurses suggest that the easiest way to handle this type of dispute is simply to mark it in the record and do as you are told. However, the AANA Code of Ethics and a review of legal cases make clear:

Don’t just go along!

Don’t just record it in the record!

Protest! Call for help! And just don’t do it!

Reference
1. Code of Ethics for the Certified Registered Nurse Anesthetist. In: Professional Practice Manual for the Certified Registered Nurse Anesthetist. Park Ridge, IL: American Association of Nurse Anesthetists. Revised 2001.

This article is not intended as legal advice nor is it advice on the law of any state. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.

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