A 3-year-old child (Baby A) was diagnosed with cardiomyopathy after an emergency department visit for an upper respiratory infection. The child’s cardiologist recommended an ablation procedure on the child’s heart to treat the disorder. Baby A was admitted to a medical facility for the procedure in October 2010. The anesthesia team consisted of Dr D, the anesthesiologist, and Mr V, a Certified Registered Nurse Anesthetist (CRNA). Dr D had his own anesthesiology practice but Mr V, the CRNA, was employed by the hospital.

Prior to the procedure, Dr D and Mr V collaborated on the anesthesia plan and both professionals determined that sevoflurane mask induction was the best course of action. According to the court’s records, while the ultimate decision to order the chosen anesthesia rested with the physician, “the certified registered nurse anesthetist advised the physician, agreed with the physician, and participated with the physician in the selection and administration of the anesthetic sevoflurane through a mask.”

During the procedure, shortly after she was anesthetized with sevoflurane via a mask, Baby A went into cardiac arrest. Dr D was able to revive the child using cardiopulmonary resuscitation and resuscitation medication; however, after being deprived of oxygen for approximately 13 minutes, the child suffered permanent brain damage, cerebral palsy, and profound developmental delay.

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The child’s mother filed a negligence lawsuit against Dr D, Mr V, the hospital, and 2 additional physicians who treated Baby A.

The Trial(s)

The first trial began at the end of 2015 and spanned 3 months, ending in February 2016. The jury reached a verdict absolving the 2 additional physicians but was deadlocked and unable to reach a verdict on the claims against Dr D and Mr V. At the end of this trial, Dr D and his anesthesiology practice settled out of court with the plaintiff.

The second trial, this time only against Mr V and the hospital as his employer, began in May 2018. The plaintiff claimed that Mr V should have suggested or used intravenous sedation with a drug other than sevoflurane, which would have been a safer choice for a patient with cardiomyopathy. The plaintiff was prepared to have an expert CRNA testify that Mr V had breached the professional standard of care by using mask induction of anesthesia in this case. However, the court excluded this evidence, noting that while a nurse may be liable for independent actions taken against a plaintiff, he could not be held liable for planning and selecting the appropriate anesthesia technique because “nurses operate under the compulsory supervision of physicians licensed to practice medicine.” The jury returned a verdict in favor of Mr V and his employer.

The plaintiff appealed the trial court’s exclusion of the expert testimony that claimed a breach of the applicable standard of care. In 2020, the Court of Appeals affirmed the trial court’s exclusion of the evidence. The plaintiff appealed to the state’s Supreme Court for a discretional review and the Court agreed to review the case.

North Carolina Supreme Court Decision

The North Carolina Supreme Court looked back at a 1932 decision that has, for the last 90 years, shielded nurses from exposure to liability for negligence when performing duties under the supervision of a physician. In 1932, noted the Court, the primary function of nurses within the medical community was to “obey and diligently execute the orders of the physician or surgeon in charge of the patient, unless, of course, such order was so obviously negligent as to lead any reasonable person to anticipate that substantial injury would result.” At that time, continued the Court, nurses were “not supposed to be experts in the technique of diagnosis or the mechanics of treatment.” Instead, “the law contemplates that the physician is solely responsible for the diagnosis and treatment of his patient.”

However, the Court noted that “the nursing profession has evolved tremendously over the 90 years” since that 1932 decision. The scope of practice has greatly expanded and has grown to include assessing nursing care needs resulting in the formulation of a nursing diagnosis, developing care plans that include nursing interventions, and implementing nursing activities. The scope of practice for CRNAs has also grown. In North Carolina, CRNAs are “expressly allowed to (1) select and administer preanesthetic medications, (2) select, implement, and manage general anesthesia consistent with the patient’s needs and procedural requirements, and (3) initiate and administer several palliative and emergency medical procedures.”

Thus, the Court noted that while it’s clear that the CRNA must fulfill these duties under the supervision of a physician, “it is also apparent that the independent status, the professional stature, the individual medical determinations, and the shared responsibilities with a supervising physician have grown in significance and in official recognition since” the 1932 case was decided. “The ascension of members of the nursing profession to statuses within the medical community, which should appropriately result in an acknowledgement of their elevated station and their commensurate elevated responsibility. The expanding authority, recognition, and independence of nurses, which have steadily evolved as these professionals, exemplified by those who have achieved identified specializations and certifications, have sufficiently risen within the ranks of the field of medicine to earn levels of autonomy and influence which formerly were fully withheld.”

With a 3 to 2 decision, the Court reversed the trial court’s exclusion of the plaintiff’s expert testimony and remanded the case back to the trial court for a new trial.

Protecting Yourself

Nurse practitioners already are held to a higher standard than nurses, but this decision implies that the standards for all health care practitioners may be on the rise. “Just following orders” is never a good defense, nor one you would want to have to use.

In this case, it appears that the CRNA agreed with the physician’s choice of anesthesia technique, but had he not, he should have expressed and noted that to protect himself.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.