Legal Aspects in a Moderate Sedation Case

The Case of Nurse Brown

In January 1999, Ernest Young received sedation for a colonoscopy performed at Gastro-Intestinal Center, Inc., located in Little Rock, Ark. Upon arrival, Young told the receptionist that following his procedure his friend Trundle Smith would drive him home to El Dorado, Ark.

Following the procedure, Trundle Smith had yet to arrive. Young’s nurse, Diane Brown, RN, learned Young had every intention of driving himself home. Brown called Young’s wife, Maggie, and was advised by Mrs. Young that no one was available to pick up Mr. Young.

Brown then attempted to persuade Young to wait at the center for the next several hours for the sedation to clear his system, or until someone was available to drive him home, but he refused. When it became apparent Young was going to leave on his own, Brown requested he sign a form indicating he understood he should not drive and that he was leaving against medical advice. Young signed the form and left the center. He then went to another medical appointment, underwent another medical procedure, and then began his drive home.

Young’s attempted journey home resulted in a one-car accident, later proving fatal for Young. A suit was filed by Young’s wife against Gastro-Intestinal Center, Inc., and Brown. According to court documents, Mrs. Young argued that the center and Brown breached three distinct duties to Mr. Young:
• not to sedate a patient without a driver;
• not to discharge a patient from the recovery room; and
• not to discharge a sedated patient to drive himself home.

“This case was about duty,” says Krohn. “Anyone suing a healthcare provider for malpractice has to prove four things. The first thing they have to prove is duty, that a duty was owed.

“The nurse’s duty in this case was to warn the patient not to drive. It is undisputed she did it over and over and over again. She wasn’t required to take the man’s keys away, she wasn’t required to hide his clothes for eight hours, and she wasn’t required to call a cab.”
Those actions would have been false imprisonment, Krohn says. She also pointed out that a call to local police to warn of an impaired driver also isn’t a safe option due to law infringement of HIPAA (the Health Insurance Portability and Accountability Act of 1996).

“Nobody has the duty to force a patient to follow medical advice,” says Krohn. “Her duty was to warn him not to drive. The duty to warn, not the duty to control. She fulfilled her duty and so the Arkansas court did not enlarge upon that duty or expand it in any other way.”
But is it enough for nurses to rely on what the patient says, or should it become regular practice to phone the patient’s driver and receive verification of a safe ride?
Cathy Dykes, MS, RN, CCRC, CGRN, testified in the case through affidavit. She and Fred Sutton, MD, testified on behalf of the plaintiff that “all healthcare providers who sedate patients must confirm the existence of someone to take the patient home, and that this means more than writing down a name on a piece of paper; it means actually speaking with the driver to make sure they exist and know when to come pick the patient up.”

“What I’ve always done in the past,” says Dykes, is “if a driver is not there and we can’t be reasonably sure one is coming, we do not sedate the patient. We offer to either do it without sedation or to reschedule,” she says.
“I would try to do anything I could,” advises Dykes. “I think that we need to just take our time to do the right thing.”

Eventually, the ruling in the case of Brown and her center came in on their side — five years after it all began. “The court reasoned: ‘Nobody has the duty to force a patient to follow medical advice,’” says Krohn. “Nurses have the duty to warn, that’s it. But [now] having a conscious sedation law on the books, other states may look at it for guidance and reference. They may like the way the judges reasoned it and they may not, so we’ll have to stay tuned.”

What were the nurse’s responsibilities to Mr. Young? What would you have done?

You may read the entire article and additional details on EndoNurse.com here.
http://www.endonurse.com/articles/2005/08/legal-aspects-of-conscious-sedation-amp-patient-r.aspx