By 3:35 a.m., Mr. B was rating his pain as 8 out of 10, and Ms. M administered 2 mg of hydromorphone. By 4:15 a.m., the patient’s pain was more tolerable. His oxygen saturation level was 97% with no supplementation, so Ms. M did not administer additional oxygen. She checked on Mr. B repeatedly and found him alert and awake. 


What Ms. M did not know and what the patient and his wife had failed to tell anyone in the ED was that Mr. B had been at the hospital’s sleep center 9 years earlier and he had been diagnosed with severe obstructive sleep apnea and prescribed use of a continuous positive airway pressure (CPAP) machine to maintain an open airway when he slept. 



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At 5 a.m., Mr. B complained of nausea, and Ms. M administered the prescribed dose of promethazine and then checked on the patient again at 5:30 a.m., when he rated his pain as a 3. However, shortly after 6 a.m., he reported to Ms. M that “the pain was coming back.” He rated the pain as a 5 but said it was increasing in severity and he was afraid it would become unbearable again. Ms. M repeated the 2-mg dose of hydromorphone. A half hour later, she checked on the patient and found him, for the first time, lying back in his bed. He rated his pain level as a 1 and finally seemed somewhat comfortable. Ms. M was relieved for the patient and encouraged him to rest. 


When she checked on him 20 minutes later, the patient was unresponsive. A Code Blue was called, but although the emergency team was able to resuscitate the patient, he died several days later. The autopsy report stated that the anatomic cause for the spontaneous cardiopulmonary arrest could not be identified. 


Many months later, Ms. M was notified that the hospital was being sued by the patient’s wife, who was alleging wrongful death based on the negligence of Ms. M. Among other things, the lawsuit claimed that Ms. M had breached the standard of care by not checking the medical records and determining that Mr. B needed a CPAP machine. In addition, the lawsuit claimed that Ms. M did not monitor the patient properly, did not take proper vitals, and gave the patient too much hydromorphone. 


The hospital’s defense attorney met with Ms. M and explained that the case would likely hinge on testimony from medical experts about what the standard of care is and whether Ms. M had met it. During trial, both sides introduced medical experts. The experts, even those hired by the plaintiff, had to agree that a nurse can rely on the ED records and history and the attending physician’s records of patient history. There was no requirement, either by the hospital, or as part of the standard of care, that Ms. M was responsible for looking up old patient records, even if they were from the same hospital. In addition, the experts agreed that Ms. M had properly given the right amount of pain medication to the patient and that she had not breached the standard of care in any way. The case was dismissed.


Legal background


In its decision, the court wrote, “In order to establish medical malpractice, a plaintiff must show: (1) the standard of care recognized by the medical community, (2) the failure of the defendant to meet the requisite standard of care, and (3) a direct causal connection between the medically negligent act and the injury sustained.” In this case, several medical experts testified as to the appropriate standard of care, and the court agreed that the testimony proved that Ms. M had met the requisite standard of care. In addition, there was no evidence to show that Mr. B’s death was caused by anything Ms. M did, or did not do, so the third element (a direct causal connection between the act and the injury) could not be met either. 


Protecting yourself


Ms. M did nothing wrong in this case, yet that, unfortunately, did not protect her from being involved in a lawsuit when the patient had a bad outcome. However, one of the things that protected Ms. M from liability was her detailed notes about the patient, which clearly documented how often she was checking on him, giving him pain medication, and making sure that he was tolerating the medication. 


Would it have been helpful for Ms. M to check the patient’s old hospital records? Possibly. However, she was not required to do so, nor was there any assumption that she would be investigating old records. Always take notes that are as detailed as possible so it will be clear how often and how carefully the patient was monitored, even if the notes are examined several years later, as happened with this case due to delays.

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