Ms. E, age 43 years, was employed as a school nurse in a large public-school system. Prior to taking on this position, she had worked for a family practitioner for more than a decade. She left family practice a year earlier, because she wanted a job that would allow her to spend more time with her own children. 


The school job was fairly low-pressure. Most visits to the school nurse’s office involved straightforward care: minor cuts or bruises, sore throats, fevers, stomach aches, head lice and the like. In treating each child, Ms. E basically had to decide whether the child’s condition warranted sending the child home or whether the child could return to the classroom after treatment.

In rare instances, such as a severe asthma attack or a serious playground accident, emergency services would be needed and an ambulance would transport a child to the hospital. But such incidents were few and far between, and visits to the school nurse were usually for a narrow range of issues.


One morning, Ms. E received a visit from the first-grade teacher and her 7-year-old student, Miss J. The teacher explained to Ms. E that the child had raised her hand in class and then audibly complained that her “private part was hurting.” The teacher also noted that Miss J looked very uncomfortable and was cupping her groin area in class. 


The child did look uneasy, and Ms. E spoke to her gently to try to ascertain the problem. In the meantime, she asked an assistant to pull Miss J’s file and look up the emergency-contact numbers. The chart noted that Miss J was the daughter of a single working mother. As the assistant tried to contact Miss J’s mother, Ms. E obtained a urine sample from the girl. The dipstick test pointed to a urinary tract infection (UTI). 


With no success reaching the little girl’s mother directly, Ms. E left voicemail messages indicating that Miss J was in the school infirmary. Ms. E then checked Miss J’s school file to make sure that a signed consent form for treatment was included — and it was. 


Ms. E proceeded to conduct a gloved-hand external vaginal exam of the student in a private and curtained cubicle. The examination indicated a UTI and ruled out certain injuries that could have been causing the child’s pain. Ms. E was very careful before the exam to explain to Miss J what she was going to do, and she took the time to make sure the little girl understood what was about to happen. 


When Miss J’s mother arrived, Ms. E explained the situation and the physical examination she had performed, 
and the subsequent UTI diagnosis. Miss J’s mother was furious when she was told about the exam, and stormed out with her child after berating Ms. E for “going beyond what was acceptable.”


Miss J did have a UTI, which was treated with antibiotics, but the child’s mother was extremely upset about the exam. She did not feel satisfied with the explanation given by Ms. E and the school administration for this perceived violation of her child’s privacy. She hired a plaintiff’s attorney and sued the school district and Ms. E for invasion of privacy and malpractice.


Ms. E was livid. “I did nothing wrong,” she told the attorney who was assigned to her by her insurance company. “I did everything by the book. We tried to contact the mother and she wasn’t available. Plus, we had a signed consent form.”


The attorney requested a copy of the child’s file, including the consent form, and reassured Ms. E that he didn’t believe the case would stand up in court. He summarily filed a motion to dismiss the lawsuit.


The attorney was correct, but it took several months before the court dismissed the case. The examination of the child’s genitalia was warranted by the symptoms and by the urine dipstick test, and was conducted properly from a medical standpoint, the court stated. 


Legal background


A motion to dismiss asks the court to decide whether a case has any merit under the law. When a court is asked to decide whether to dismiss a case, it will look at the facts as stated by the plaintiff as though they are true. If, as a matter of law, there is no valid claim, then the court will dismiss the case. In some circumstances a case can be dismissed for technical reasons: if it was filed after the statute of limitations expired or if it wasn’t properly filed in some other way.


In this case, the court held that Ms. E had done nothing legally wrong, and there was no issue of law here. A medical-consent form, signed by the mother, was in the child’s file. The consent form gave general permission for the school to use its discretion to treat the child medically as necessary. This extended to a physical examination when warranted, which, in this case, it was. The court held that no malpractice had taken place, and that Ms. E had handled the situation properly. 


Protecting yourself


This case shows that you can’t always protect yourself. Ms. E handled the situation appropriately and professionally. She made every attempt to contact the child’s mother when it appeared that the child was suffering from a UTI.

Ms. E also ensured that a signed consent form was in the child’s medical file. And once every attempt to contact Miss J’s guardian had failed, Ms. E properly and professionally handled the examination, after explaining to the child what was going to happen. Yet, despite Ms. E’s proper handling of the situation, she was still a party to a lawsuit. And as a party to a lawsuit, she had to arrange her schedule to make time for attorney appointments, depositions and court appearances. She also had to live with the stress of dealing with an ongoing lawsuit.


While you can’t always avoid a lawsuit, this case is a good example of how you can position yourself so that you are best able to defend yourself if you are sued. Ms. E handled the situation adeptly. She had all her facts documented and in order regarding all attempts to contact the child’s mother to obtain verbal consent. It is important to have parental consent — or at least a signed medical-consent form — to avoid any issues that might arise.

Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended. Persons pictured are not the actual individuals mentioned in the article.