LEGAL CLINIC
Lessons Learned from Litigation: The Nurse’s Duty to Protect Did nurses ‘unreasonably ignore’ a patient’s risk of harm?
A
lbert Einstein has often been credited with saying, “If I were to remain silent, I’d be guilty of complicity.” Nurses have a legal and ethical duty to protect their patients from foreseeable harm. The following case illustrates this responsibility. 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, fourbed 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 Ca brini 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. According to court documents,1 the nurses said they were aware of him, and one testified that she had seen him approaching NX’s bedside. It was hospital policy, however, for examinations of female patients to be conducted in the presence of a female witness. NX testified that she awoke to Favara pulling up her hospital gown. He ordered her to open her legs and pushed her thighs apart, placing his fingers inside her vagina and anus. She said she repeatedly asked him to stop, although the nurses denied seeing the assault or hearing her pleas. The nurses stopped Favara as he was leaving the recovery room and “introduced themselves.”1 NX complained to the nurses about what had happened, and the nursing supervisor confronted him. Favara claimed that he had “examined” NX, and after an investigation he was terminated. NX brought a lawsuit against the hospital, alleging negligent hiring, negligence in failing to safeguard her adequately, medical malpractice, and vicarious liability for Favara’s actions. 68
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PROCEDURAL BACKGROUND
Under a legal doctrine called respondeat superior, employers can be held liable for the wrongful actions of their employees if the actions are committed in furtherance of the employer’s business and if the actions are “within the scope of [the employee’s] employment” or “under the cloak of apparent authority.” This is known as vicarious liability. This differs from direct liability, in which the employer is liable for its own actions. Negligent hiring is a direct liability claim made against an employer in which the injured party alleges that the employer knew or should have known about the employee’s potential for danger before placing her or him in the position. It’s an assertion that the employer didn’t protect the plaintiff from reasonably foreseeable harm when hiring the employee who caused that harm. The hospital made a motion for summary judgment, which is an attempt to have the court decide the case in one’s favor without a trial. The motion was to have the case dismissed. Such a motion is only granted when there are no issues of fact for a jury to consider or determine. Cabrini argued that the case should be dismissed because it was not reasonably foreseeable that a physician with no known history of sexual misconduct would sexually assault a patient. The trial court didn’t grant this motion, and the case proceeded to an appeals court. The appellate division granted the hospital’s motion and dismissed the case. NX appealed to the New York Court of Appeals, the highest court in New York.
THE COURT DISCUSSION
The New York Court of Appeals began its opinion with the statement, “This troubling case involves an egregious abuse of the physician–patient relationship—the conscious use of a doctor’s professional position to exploit a patient’s vulnerabilities for selfgratification through sexual contact.” The court did not find Cabrini vicariously liable for Favara’s actions because they didn’t take place in furtherance of Cabrini’s business and weren’t within the scope of his employment. “A sexual assault perpetrated by ajnonline.com
a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives. . . . This was a sexual assault that in no way advanced the business of the hospital.”1 The court noted that Favara wasn’t one of NX’s physicians and that a pelvic “examination” would have been contraindicated given her condition. With regard to the hospital’s direct liability, NX claimed that Cabrini’s nurses failed to protect her as she recovered from surgery. She argued that the nurses had a “heightened” duty to her because she was sedated. It was her contention that that duty obligated the nurses to stop other health care professionals, including physicians, from approaching patients until the nurses had determined their purpose. Although the court did not adopt her heightened duty argument, it did note that the scope of a hospital’s duty is determined by those risks that are reasonably foreseeable. The court wrote, “A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety.”1 The court considered the actual foreseeability of harm, indicated by “observations the hospital staff could or should have made at the time immediately preceding the actual wrongdoing, of things sufficiently unusual or out of the ordinary as to strengthen the possibility of misconduct, in order to warrant some curative action or follow-up.”1 The court noted that the nurses knew that an internal examination would have been contraindicated and that “an unknown doctor wearing surgical gloves—usually worn for internal examinations— approached plaintiff’s bedside ostensibly intent on examining her.” The court noted the proximity of the beds to each other and of the nurses to the beds, that the curtains were not drawn, and that nothing obstructed their view. The court held that “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.”1 It noted that a hospital can be liable for “actually observed or readily observable misconduct committed in the very presence of hospital employees.”1 The question the court analyzed was whether the Cabrini nurses had a duty to protect NX “once there were acts or events suggesting that an assault or unauthorized ‘examination’ was about to take place— and did take place—in their presence.”1 In its opinion, the court questioned the nurses’ credibility. The following is taken from the written decision1: [email protected]
Illustration by Janet Hamlin.
By Edie Brous, JD, MS, MPH, RN
• Despite the nurses’ assertions that they saw or heard nothing, an additional key question of credibility arises from the inference created by the undisputed close proximity [sic] of all of the nurses to plaintiff’s bed. The entire recovery room was approximately 18 by 14 feet, and contained four beds, each of which was only about two feet from the adjacent bed; only two of the beds were occupied. The curtain between plaintiff’s bed, which was nearest the wall, and that of the second patient was not drawn. • Although her back was turned to plaintiff, Nurse Reyes was only three to four feet from the foot of plaintiff’s bed—easily within earshot—as Reyes filled in the second patient’s chart. She observed [sic] Favara pass her and go to plaintiff’s bed. Nurse Gamboa was situated between the second and third beds in the room, facing the patient in the second bed. Given the arrangement of the room, she would also have been facing the first, uncurtained bed, where plaintiff was located. Indeed, Nurse Gamboa admitted that nothing obstructed her view of plaintiff’s bed. Notably, at her deposition, Nurse Gamboa initially testified that she had overheard conversation between plaintiff and Favara while she was at the bedside AJN ▼ November 2014
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of the second patient. Finally, there is some disagreement as to the length of time Favara was in the room. Nurse Reyes testified it was less than a minute, although she also claimed she had time to fill in a multiple-entry, seven page chart for the other patient.
THE OUTCOME
The New York Court of Appeals rejected NX’s allegations of vicarious liability but did accept her argument that the case should not have been dismissed on the basis of her having had no evidence indicating that the nurses failed to protect her.
Nurses can be named in a lawsuit for actions (or inaction) unrelated to clinical practice or malpractice. The court noted that NX had identified “several unusual circumstances surrounding Favara’s appearance in the recovery room that should have alerted the nurses that plaintiff was in obvious jeopardy of imminent harm.” These included the following: • NX’s family physician testified that he was familiar with Cabrini’s practices and that residents (such as Favara) were seldom called to the recovery room. • One of the recovery room nurses (Reyes) testified that residents were not directly assigned to the recovery room and that she was aware of the identity of all of the plaintiff’s physicians, and that Favara was not one of NX’s physicians. • None of the recovery room nurses knew Favara. • Reyes also testified that she saw Favara enter the recovery room and proceed directly to NX’s bedside. • Even though the nurses testified that they never saw Favara wear, remove, or dispose of gloves in the recovery room, gloves were available near the bed, and NX testified that she had seen blood on his glove after the assault. The court found that there were issues of fact as to what the nurses observed or whether they “unreasonably ignored events immediately preceding the misconduct which indicated a risk of imminent harm to plaintiff, triggering the need for protective action.” It reinstated NX’s complaint and remanded the case 70
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to the trial court, noting that “a jury could determine that the nurses unreasonably disregarded that which was readily there to be seen and heard, alerting them to the risk of misconduct against plaintiff by Favara, which could have been prevented.” The case went to trial, and the hospital settled with NX on the first day of testimony for, according to one report, $3.5 million; Favara, according to the report, fled the country before he could be charged.2
LESSONS TO BE LEARNED FROM THIS CASE
• 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. • Nurses in management positions must exercise diligence in the hiring, supervision, and retention of employees. • Nursing managers should ensure that adequate background checks on job applicants are performed before offering them employment. This can include performing criminal records check, confirming references, confirming licensure status, and drug testing. • Nurses should confront a person displaying worrisome behavior—if it is safe to do so—and immediately notify management of the person or suspicious activity. • Nurses should maintain professional liability insurance. Lawsuits may be accompanied by nursing board or other regulatory investigations that require legal counsel. ▼
Edie Brous is a nurse and attorney in New York City and the coordinator of Legal Clinic: [email protected]. The author has disclosed no potential conflicts of interest, financial or otherwise.
REFERENCES 1. N.X. v. Cabrini Medical Center, Court of Appeals of New York (97 NY 2d 247). 2002. 2. Gregorian D. Pervy doc socked for $3.5 million. New York Post 2003 Jul 9. http://nypost.com/2003/07/09/pervy-docsocked-for-3-5-million. ajnonline.com
Lessons Learned from Litigation: The Nurse’s Duty to Protect Did nurses ‘unreasonably ignore’ a patient’s risk of harm?
A
lbert Einstein has often been credited with saying, “If I were to remain silent, I’d be guilty of complicity.” Nurses have a legal and ethical duty to protect their patients from foreseeable harm. The following case illustrates this responsibility. 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, fourbed 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 Ca brini 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. According to court documents,1 the nurses said they were aware of him, and one testified that she had seen him approaching NX’s bedside. It was hospital policy, however, for examinations of female patients to be conducted in the presence of a female witness. NX testified that she awoke to Favara pulling up her hospital gown. He ordered her to open her legs and pushed her thighs apart, placing his fingers inside her vagina and anus. She said she repeatedly asked him to stop, although the nurses denied seeing the assault or hearing her pleas. The nurses stopped Favara as he was leaving the recovery room and “introduced themselves.”1 NX complained to the nurses about what had happened, and the nursing supervisor confronted him. Favara claimed that he had “examined” NX, and after an investigation he was terminated. NX brought a lawsuit against the hospital, alleging negligent hiring, negligence in failing to safeguard her adequately, medical malpractice, and vicarious liability for Favara’s actions. 68
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Vol. 114, No. 11
PROCEDURAL BACKGROUND
Under a legal doctrine called respondeat superior, employers can be held liable for the wrongful actions of their employees if the actions are committed in furtherance of the employer’s business and if the actions are “within the scope of [the employee’s] employment” or “under the cloak of apparent authority.” This is known as vicarious liability. This differs from direct liability, in which the employer is liable for its own actions. Negligent hiring is a direct liability claim made against an employer in which the injured party alleges that the employer knew or should have known about the employee’s potential for danger before placing her or him in the position. It’s an assertion that the employer didn’t protect the plaintiff from reasonably foreseeable harm when hiring the employee who caused that harm. The hospital made a motion for summary judgment, which is an attempt to have the court decide the case in one’s favor without a trial. The motion was to have the case dismissed. Such a motion is only granted when there are no issues of fact for a jury to consider or determine. Cabrini argued that the case should be dismissed because it was not reasonably foreseeable that a physician with no known history of sexual misconduct would sexually assault a patient. The trial court didn’t grant this motion, and the case proceeded to an appeals court. The appellate division granted the hospital’s motion and dismissed the case. NX appealed to the New York Court of Appeals, the highest court in New York.
THE COURT DISCUSSION
The New York Court of Appeals began its opinion with the statement, “This troubling case involves an egregious abuse of the physician–patient relationship—the conscious use of a doctor’s professional position to exploit a patient’s vulnerabilities for selfgratification through sexual contact.” The court did not find Cabrini vicariously liable for Favara’s actions because they didn’t take place in furtherance of Cabrini’s business and weren’t within the scope of his employment. “A sexual assault perpetrated by ajnonline.com
a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives. . . . This was a sexual assault that in no way advanced the business of the hospital.”1 The court noted that Favara wasn’t one of NX’s physicians and that a pelvic “examination” would have been contraindicated given her condition. With regard to the hospital’s direct liability, NX claimed that Cabrini’s nurses failed to protect her as she recovered from surgery. She argued that the nurses had a “heightened” duty to her because she was sedated. It was her contention that that duty obligated the nurses to stop other health care professionals, including physicians, from approaching patients until the nurses had determined their purpose. Although the court did not adopt her heightened duty argument, it did note that the scope of a hospital’s duty is determined by those risks that are reasonably foreseeable. The court wrote, “A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety.”1 The court considered the actual foreseeability of harm, indicated by “observations the hospital staff could or should have made at the time immediately preceding the actual wrongdoing, of things sufficiently unusual or out of the ordinary as to strengthen the possibility of misconduct, in order to warrant some curative action or follow-up.”1 The court noted that the nurses knew that an internal examination would have been contraindicated and that “an unknown doctor wearing surgical gloves—usually worn for internal examinations— approached plaintiff’s bedside ostensibly intent on examining her.” The court noted the proximity of the beds to each other and of the nurses to the beds, that the curtains were not drawn, and that nothing obstructed their view. The court held that “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.”1 It noted that a hospital can be liable for “actually observed or readily observable misconduct committed in the very presence of hospital employees.”1 The question the court analyzed was whether the Cabrini nurses had a duty to protect NX “once there were acts or events suggesting that an assault or unauthorized ‘examination’ was about to take place— and did take place—in their presence.”1 In its opinion, the court questioned the nurses’ credibility. The following is taken from the written decision1: [email protected]
Illustration by Janet Hamlin.
By Edie Brous, JD, MS, MPH, RN
• Despite the nurses’ assertions that they saw or heard nothing, an additional key question of credibility arises from the inference created by the undisputed close proximity [sic] of all of the nurses to plaintiff’s bed. The entire recovery room was approximately 18 by 14 feet, and contained four beds, each of which was only about two feet from the adjacent bed; only two of the beds were occupied. The curtain between plaintiff’s bed, which was nearest the wall, and that of the second patient was not drawn. • Although her back was turned to plaintiff, Nurse Reyes was only three to four feet from the foot of plaintiff’s bed—easily within earshot—as Reyes filled in the second patient’s chart. She observed [sic] Favara pass her and go to plaintiff’s bed. Nurse Gamboa was situated between the second and third beds in the room, facing the patient in the second bed. Given the arrangement of the room, she would also have been facing the first, uncurtained bed, where plaintiff was located. Indeed, Nurse Gamboa admitted that nothing obstructed her view of plaintiff’s bed. Notably, at her deposition, Nurse Gamboa initially testified that she had overheard conversation between plaintiff and Favara while she was at the bedside AJN ▼ November 2014
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of the second patient. Finally, there is some disagreement as to the length of time Favara was in the room. Nurse Reyes testified it was less than a minute, although she also claimed she had time to fill in a multiple-entry, seven page chart for the other patient.
THE OUTCOME
The New York Court of Appeals rejected NX’s allegations of vicarious liability but did accept her argument that the case should not have been dismissed on the basis of her having had no evidence indicating that the nurses failed to protect her.
Nurses can be named in a lawsuit for actions (or inaction) unrelated to clinical practice or malpractice. The court noted that NX had identified “several unusual circumstances surrounding Favara’s appearance in the recovery room that should have alerted the nurses that plaintiff was in obvious jeopardy of imminent harm.” These included the following: • NX’s family physician testified that he was familiar with Cabrini’s practices and that residents (such as Favara) were seldom called to the recovery room. • One of the recovery room nurses (Reyes) testified that residents were not directly assigned to the recovery room and that she was aware of the identity of all of the plaintiff’s physicians, and that Favara was not one of NX’s physicians. • None of the recovery room nurses knew Favara. • Reyes also testified that she saw Favara enter the recovery room and proceed directly to NX’s bedside. • Even though the nurses testified that they never saw Favara wear, remove, or dispose of gloves in the recovery room, gloves were available near the bed, and NX testified that she had seen blood on his glove after the assault. The court found that there were issues of fact as to what the nurses observed or whether they “unreasonably ignored events immediately preceding the misconduct which indicated a risk of imminent harm to plaintiff, triggering the need for protective action.” It reinstated NX’s complaint and remanded the case 70
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to the trial court, noting that “a jury could determine that the nurses unreasonably disregarded that which was readily there to be seen and heard, alerting them to the risk of misconduct against plaintiff by Favara, which could have been prevented.” The case went to trial, and the hospital settled with NX on the first day of testimony for, according to one report, $3.5 million; Favara, according to the report, fled the country before he could be charged.2
LESSONS TO BE LEARNED FROM THIS CASE
• 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. • Nurses in management positions must exercise diligence in the hiring, supervision, and retention of employees. • Nursing managers should ensure that adequate background checks on job applicants are performed before offering them employment. This can include performing criminal records check, confirming references, confirming licensure status, and drug testing. • Nurses should confront a person displaying worrisome behavior—if it is safe to do so—and immediately notify management of the person or suspicious activity. • Nurses should maintain professional liability insurance. Lawsuits may be accompanied by nursing board or other regulatory investigations that require legal counsel. ▼
Edie Brous is a nurse and attorney in New York City and the coordinator of Legal Clinic: [email protected]. The author has disclosed no potential conflicts of interest, financial or otherwise.
REFERENCES 1. N.X. v. Cabrini Medical Center, Court of Appeals of New York (97 NY 2d 247). 2002. 2. Gregorian D. Pervy doc socked for $3.5 million. New York Post 2003 Jul 9. http://nypost.com/2003/07/09/pervy-docsocked-for-3-5-million. ajnonline.com
