An inmate in a correctional facility was diagnosed with hepatitis C and prescribed a 28-day course of sofosbuvir tablets. Because of the high cost of the medication (approximately $1000/tablet), the hepatitis drug is subjected to the same careful monitoring as controlled substances, including periodic pill counts.

Two staff nurses were conducting a pill count when one nurse accidentally tipped over the bottle, spilling a dozen of the pills onto the floor. Both nurses believed that once medications come into contact with the floor, they must be discarded. They gathered up the pills from the floor and disposed of them in a sharps container, which contained medical waste. After disposing of the pills, the nurses contacted the pharmacist on duty to explain what happened and informed him that a refill was needed.

The on-site pharmacist, knowing the cost of the medication, immediately called his supervisor, who then called the head physician for the facility. The physician, who was not at the prison at the time, called Nurse H, the prison’s health services administrator, and told her to retrieve the pills from the sharps container.

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Nurse H asked Nurse D, the prison’s director of nursing, to assist her. The nurses located the waste container and unlocked it. They placed paper towels on a table and shook the sharps container until all 12 pills came out. In addition to the pills, syringes, retractable lancets, and used diabetic testing strips also fell out of the container. The nurses stopped shaking the container after the pills were retrieved, but additional medical waste remained at the bottom of the container.

The nurses wrapped the spilled pills in a paper towel and took them to their office where they were met by the on-site pharmacist. Together, the 3 examined the pills. They all decided that the pills “looked like they had come out of a bottle.” According to documents, no one had checked the rest of the sharps container or the cleanliness of the floor where the pills had spilled.

The spilled pills were later given to the inmate, who was unaware of what had happened to the pills until after he had taken them. He was not informed prior to taking the pills, nor given a chance to give or deny consent, or request pills that had not been in a medical waste container. The inmate suffered no ill effects from the pills.

When one of the nurses involved in the spill and disposal of the pills heard that the pills had been given to a patient, she reported it to the State’s Division of Professional Regulation.    

The Case

After an investigation, the State brought disciplinary proceedings against the head physician and Nurses H and D. A hearing was held before an administrative hearing officer. The nurses were charged with violating the Board of Nursing’s rule against unprofessional conduct. Examples of unprofessional conduct cited in the State’s Nursing Code include “failing to take appropriate action to safeguard a patient from incompetent, unethical, or illegal health care practice,” and “failing to take appropriate action or to follow policies and procedures in the practice situation designed to safeguard the patient.”

The nurses argued that it was the pharmacist who decided that the pills could be given to the inmate and that it was reasonable to rely on the pharmacist who was a medication expert. They introduced expert testimony that the risk of contamination to the inmate was “incalculably small.”

The hearing officer disagreed, and noted that since no one examined the contents of the sharps container after the pills fell out, it was impossible to say what was in there, and thus giving the inmate the pills was not a “riskless endeavor.” The Nursing Board agreed with the hearing officer and disciplined the 2 nurses, putting them on probation and requiring them to undergo extra training in pharmacology and nursing ethics.

The Appeals

The nurses appealed to the State’s Superior Court, which sided with the nurses, concluding that an essential element of the case was for the nurses to have caused harm, and there was no harm to the patient. Following this decision, the Board of Nursing appealed to the State’s Supreme Court, which was asked to decide what constitutes unprofessional behavior and who should be the judge of that. The Supreme Court disagreed with the lower court and held that no proof of actual harm is required for a finding of unprofessional behavior. Merely putting a patient at risk for harm is enough to count as unprofessional behavior under the State’s Nursing Code, noted the Court.

Both Nurse H and Nurse D testified that they were trained that pills that fall on the floor must be discarded ― this was the standard. They knew the risk of contamination from the floor and waste container. Yet, in this case, the floor and the full contents of the waste container were never examined, and the pills were ultimately given to the inmate, putting him at risk. The Supreme Court did not agree that the nurses were “just following orders,” and held this was no defense to their breach of the profession’s standards. The Court sided with the Nursing Board, holding “we see no error in the Board’s conclusion that a desire to save money did not excuse the professional breach these nurses committed.”

Protecting Yourself

As a health care professional, you have a duty to advocate for your patient and safeguard their health. Failure to speak up when you need to can result in poor outcomes for both you and your patient.     

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