A Nurse’s Legal Duty to Discern Potential Harm and Protect Patients

Illustration by Janet Hamlin for AJN.

Illustration by Janet Hamlin for AJN.

By Jacob Molyneux, AJN senior editor

The November installment of AJN’s Legal Clinic column by nurse and attorney Edie Brous, “Lessons Learned from Litigation: The Nurse’s Duty to Protect,” describes a case in which nurses were held responsible for not adequately protecting a sedated patient from a sexually predatory physician. The case description begins this way:

NX was a young woman who underwent a laser ablation of genital warts at Cabrini Medical Center in New York City. While still under the effects of general anesthesia, she was transferred to a small, four-bed section of the recovery room. Shortly after her admission to the recovery room, the nurses admitted another patient to a bed two feet away from NX. The curtains were not drawn and there were no patients in the other two beds.

A male surgical resident, Andrea Favara, entered the recovery room wearing Cabrini scrubs and Cabrini identification. Residents were not directly assigned to the recovery room and were seldom called there. The nurses knew all of NX’s physicians but did not know Favara; he wasn’t one of NX’s physicians . . .

The details that follow are disturbing. After describing the case and the failure of nurses to confront this unknown physician or actively monitor his interactions with the patient, Brous sketches the ensuing legal machinations, as well as the ultimate decision of an appeals court. Some of the main take-home points for nurses are as follows:

A hospital’s duty to safeguard the welfare of its patients extends to damage inflicted by third parties, particularly when patients are lacking in capacity or when the patient’s ability to protect herself or himself is compromised.

* As the court noted in this case, “Observations and information known to or readily perceivable by hospital staff that there is a risk of harm to a patient under the circumstances can be sufficient to trigger the duty to protect.”

* Nurses can be named in a lawsuit or reported to the nursing board for actions (or inaction) unrelated to clinical practice or malpractice. Failure to protect a patient from foreseeable harm is a form of negligence that can lead to lawsuits or nursing board discipline.

Whether or not the nurses in this case really were at fault for failing to protect this patient may or may not be debatable—but it’s certain that lawsuits happen, and nurses should know best to protect themselves. From the recent reports on hastingsfirm.com, it’s clear that more and more lawsuits are in effect, it can almost be called an epidemic. The short article gives other important details about the case and about nurses’ legal responsibilities—and it’s also currently free, so give it a read.

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Senior editor/social media strategy, American Journal of Nursing, and editor of AJN Off the Charts.

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