Have you ever looked at a product and thought, "What on earth were they thinking?" While some gadgets like the Pocket Fisherman are just a little nutty, there are others that make me wonder what the inventor's world view is.

There is a device that can be ordered off the internet that is, in effect, a booby trap designed to protect personal property from theft. The device unleashes a fog of aerosolized pepper spray when it is tripped. See http://defensedevices.com/terminator.html  The manufacturer recommends it to force intruders out of an area quickly and suggests that it is ideal to defend rural and unoccupied premises.

Any health care worker must understand the danger inherent in such a device. Persons with lung disease or asthma who encountered such a device might well be killed. Because the manufacturer suggests that it could be used to protect cars, boats, and other items of personal property, it is possible that small children might very well be exposed to it. And while police officers are trained to use pepper spray to neutralize violence, they would never use such a device on a small child or an elderly person. Yet, a confused nursing home patient might well wander into a situation where they would be exposed to pepper spray device.

Where a person uses lethal force to protect property, it can never be simply to deter a trespasser or burglar. The law requires that the only time lethal force may be used to stop a trespasser is when the trespasser is threatening lethal force against the property owner.

In this regard a case from Iowa is interesting. In 1957 the defendant, Bertha L. Briney, inherited her parents' 80-acre farm in southwest Iowa. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, from 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and ‘messing up of the property in general'. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved. On June 11, 1967 defendants set ‘a shotgun trap' in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney's suggestion it was lowered to hit the legs. He admitted he did so ‘because I was mad and tired of being tormented' but ‘he did not intend to injure anyone'.  The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant. While hunting in the area he found the uninhabited house covered with high weeds. Prior to July 16, 1967 plaintiff had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the day in question they entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

The defendant believed it should not be liable since the plaintiff was a trespasser.  The court held otherwise saying:

"The value of human life and limb, not only to the individual concerned but also to society, so outweights the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in [Section 79], no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present."

Using a device like a pepper fog generator not only creates liability for the person that buys it and uses it on their property, but likely for the manufacturer too since it is designed to inflict injury on trespassers. 

So what does all this have to do with nursing and nursing homes? It is a normal tendency to take the path of the least resistance when dealing with problems that tend to repeat themselves. The best products aimed at making residents safer (like anti-elopement devices and bed alarms) do not do any good if they are bypassed or not properly used.  In an article called Crying Wolf, Dr. Stephen Lawless wrote that alarms in an ICU that continually sounded defeated the purpose they were intended for because they trained nurses to disregard alarms. 

At a recent inspection a nursing home was found to have padlocked the emergency exit (protected by an anti-elopement alarm) because residents were continually setting off the alarm. The idea behind the staff's quick and simple solution of a padlock was that they wouldn't have to go answer the alarm if the residents couldn't open the doors.

Like the spring gun and the pepper spray fogger, however, this simple fix carried with it a risk that anyone should have foreseen: in the event of fire the padlocked exit would be worthless for evacuation purposes.

Fortunately for the home, they were only cited and paid a fine. No one died in a fire, and no lawsuits were filed. The problem was remedied with a more sophisticated anti-elopement alarm. Nursing homes must always be on the lookout for problems that are created by essentially solving one problem by creating another.

* Katko v. Briney 183 N.W.2d 657, 47 A.L.R.3d 624 (Iowa 1971).

This week I would like to take a moment to say hello to some people who do not know me or the local legal professionals where they work. These are the thousands of facility operators, managers, administrators, nurses and clinicians who operate nursing facilities that not only comply with the law, but go beyond the minimum standards imposed by the local state and federal regulations. They are the unsung heroes you don't see on the local news. 

"Man bites dog" - that makes news. "Facility reduces falls by 90%" - that usually doesn't make news. And that's an oversight that should be corrected.

Readers of this blog find numerous citations to the hundreds of bad things that go on in nursing homes. Residents are sexually assaulted, have their belongings stolen, and their bank accounts emptied. These stories make the news. These stories draw the attention of the media because they are so bad. So when someone talks to me about why I write about these terrible events I usually say it is because those are the stories that provide the best lessons in the law. Sure, it may rub some salt into a wound, but the illustrations are helpful to those who want to do the right thing. It is the truth of what I do.

But recently the shoe, so to speak, has been placed back on the other foot. I have recently been forced to watch a group of trial attorneys in Mississippi plead guilty to bribing a judge. It is a sad affair, a noteworthy trial attorney who forced big tobacco to the settlement table brought down by the stupid actions of the lawyer he hired. The media makes it sound as though judicial bribery is a common occurrence, and also that it only occurs with plaintiff's lawyers. I can assure you it is both rare and an equal opportunity offender when it occurs. 

No one spends three years getting a law degree only to throw it out the window by trying to bribe a judge. But with the media, perception is often reality, and so the reality for lawyers in the recent days has been that we are assumed to be driven by financial gain, motivated by greed, assume that ethics is an optional course in law school, and are generally bent on bringing down civilization as we know it.

Yet, for every lawyer that is accused of wrongdoing, there are hundreds more in the bar who are working to achieve social justice. Like the nurses and administrators who do their best for facility residents, these lawyers spend their own time and often their own money trying to help people with legal problems. 

On a regular basis, lawyers donate their time to people who cannot pay. Recently, a gentlemen had trouble with a collection agency who had sued him on a debt that was eight years old. The debt was barred by the statute of limitations, but the lawyers on the other side had left these dates off the petition so as to get a default judgment by the Court. The young man was a state employee making barely more than minimum wage. He did not have the $2000 retainer our firm requires on routine matters. So I undertook his cause without charge. I did that because it was the right thing to do, and I am far from alone in doing that.

In Cole County, Missouri alone, every year lawyers for the Legal Care project donate thousands of hours to help the indigent. Every day members of the legal profession do charitable work by representing civic associations (ballet companies, theatre groups, alumni associations, etc.) for free.

But, how would the general public know that? Unless they were members of the associations, or were married to members of the bar, they'd be uninformed because most of the time lawyers do not talk about what they do for free.

So, it occurred to me that I was guilty, with respect to nursing facilities, of always talking about the bad facilities that give bad care, and not the fine facilities that provide better patient care than anyone else in the region. And there may be some terrific lessons to be learned from those stories too.

You see, I know you're out there. I would love to hear about the facilities that exceed the standards from the people doing that exceptional work. And I will reflect their stories here. Contact me off line at aldewitt@aldewitt.com and I will pass along those who are out there leading the pack.

Provision one of the ANA code says:

"The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems."

As a trial attorney, that lofty sounding position gives me a lot to work with where there has been a suggestion that a nurse has been less than compassionate, less than respectfull, or was restricted by considerations of a person's economic status or personal hygiene. The following excerpt is from a deposition of a nurse in a nursing home case. The nursing home was eventually sold and the company that owned it put out of business. The CEO and the Chairman of the Board were both sent to federal prison. So what follows is awful. But it illustrates how the code of ethics can be used to illustrate just how bad a nurse's failure was.

The nurse being deposed is the director of nurses. We will not use her name because she was honest, because she was in a horrible situation, and because she should not be held up to ridicule.  For the same reason, I won't identify the facility.  The violations occurred ten years ago, and the facility has changed hands.  Hopefully the nurse has found other employment.

      12    Q.   (By Mr. ___) I want to recite for you a

      13    portion of the American Nurses Association code of

      14    ethics and ask you whether you agree with it, okay?

      15    A.   Certainly.

      16    Q.  "The nurse's primary commitment is to the

      17    patient, whether an individual, family, group or

      18    community."  Would you agree with that statement?

      19    A.   Repeat it for me.

      20    Q.  "The nurse's primary commitment is to the

      21    patient, whether an individual, family, group or

      22    community."  Would you agree with that statement?

      23    A.   I agree that the nurse's primary

      24    responsibility is to the patient.  I don't know how the

      25    second part of the sentence applies, but --

       1     Q.   Fair enough.  You would agree then that the

       2    nurse's primary commitment is to the patient, fair?

       3    A.   Yes.

       4    Q.   Let me ask you about this ethical statement.

       5    "A fundamental principle that underlies all nursing

       6    practice is respect for the inherent worth, dignity and

       7    human rights of every individual.  Nurses take into

       8    account the individual needs and values of all persons

       9    in all professional relationships."  Do you agree with

      10    that ethical statement?

      11    A.   Yeah.

***

      18    Q.   And do you agree with it?

      19    A.   I think so, yeah.

      20    Q.   Okay.  You said you think so.  I just want to

      21    give you an opportunity --

      22    A.   Read it again.  Let me listen.

      23    Q.   Let me just read the first portion of it, and

      24    see if you agree with that statement.  "A fundamental

      25    principle that underlies all nursing practice is respect

       1    or the inherent worth, dignity and human rights of every

       2    individual."  Do you agree with that statement?

       3    A.   Yes.

                                                ***

      18   Q.   And that there is a recognition in the code

      19    of state regulations and in the code of federal

      20    regulations that governs your contact, that each person

      21    is entitled to that dignity and respect and the highest

      22    degree of care practicable.  Do you agree with that?

      23    A.   Yes.

      24    Q.   And that's the obligation that you have as a

      25    nurse with charge over those residents to make sure that

       1    that is carried out; isn't that true?

       2    A.   Yes.

       3    Q.   Let me ask you this question.  Does

       4    permitting a patient to lie in their own urine for up to

       5    eight hours in any way show respect for the inherent

       6    worth, dignity and human rights of an individual?

       7     A.   No.

       8     Q.   Does permitting a patient to lie in their own

       9    *** and letting them get the *** on their hands and

      10    in their hair in any way show respect for the inherent

      11    worth, dignity and human rights of that individual?

      12    A.   Repeat that for me.

      13    Q.   Does permitting a patient to lie in their own

      14    *** and permitting them get the *** on their hands

      15    and in their hair in any way show respect for the

      16    inherent worth, dignity and human rights of an

      17    individual?

      18    A.   Within the confines of a nursing home, it

      19    can't always be prevented.

      20    Q.   Does permitting a patient to lie in their

      21    *** for hours at a time in any way show respect for

      22    that person's dignity?

      23    A.   No.  I think we discussed that already.

      24    Q.   Well, we discussed it in the context of

      25    someone laying in their own urine for hours, and now I'm

        1    asking you if you permit a patient to lie in their own

       2    *** for hours at a time, that would not show respect

       3    for their dignity or worth; would it?

       4    A.   No, it is not.

       5    Q.   And that is something that is preventable; is

       6    it not?

       7    A.   Yes, to lay there for hours is preventable.

There were numerous other awful examples of patient neglect that were recited. The nurse testified honestly that the facility and its nurses did not live up to the ethical codes of nursing.

The impact of such testimony on a jury is difficult to understate. The nurse admits that she agrees that human dignity is important, but that it can't always be maintained. Her attempt to separate out skilled nursing facilities by saying "it can't always be prevented" merely opened the door for the lawyer who pointed out the things that could be prevented.

Most nursing home cases are not as serious and the conditions are not as hellish. But imagine how these questions could be used in a deposition where the allegation is a failure to monitor the patient for falls?  "Would failing to answer a call light for thirty minutes for a patient with a history of falls in any way show respect for the inherent human dignity...." 

If it's been a while since you've looked at your professional code of ethics and responsibilities imposed by your state's statutes, it is a good idea to take a look at that today and do so. If it has been a while since there was an inservice on ethics, there is no time like the present to hold that inservice. Ethical questions are interesting, stimulate discussion, and often lead to quality improvement in well-run organizations. Those pay dividends in the long term.

In a few weeks Advance for Respiratory Care Practitioners, the magazine that I started off with in 1988, will be celebrating its 20^th year. This made me think back to the times in my life when I was a caregiver and the many different places I worked, including:

• Mary Lanning Memorial Hospital, Hastings, NE
• Kirksville Osteopathic Hospital, Kirskville, MO
• St. Mary's Hospital, West Palm Beach, FL
• Blessing Hospital, Quincy, IL
• Mt. Sinai Hospital, Hartford, CT
• St. Charles Hospital, Oregon, OH; and
• Vencor Hospital, St. Louis, MO

While I learned many things (both good and bad) at many of these places, two of them are special because they were the places that formed the core of my beliefs about what is both good and bad in the health care professions.

St. Mary's Hospital in West Palm Beach, Florida, was located minutes away from Riviera Beach, a popular spot for tourists and a place where thousands of "snow birds" sought respite from the cold climate up north.  The hospital was a 350 bed facility and it was run by a religious order that cared a great deal about meeting its calling to provide care for the suffering and disenfranchised. 

It was there, as a therapist, that I practiced my very best respiratory care as a clinician. I worked with neonates, attended deliveries, went on transports, worked in the emergency room, and hung out for long stretches in the ICU and CCU. At one time a fellow therapist, a lovely young lady named Victoria Parks, taught me that it was easy to make iced tea in a graduated cylinder, and we frequently walked through the ICU drinking our tea from the same type of receptacles that nurses emptied their Foley bags into. 

We made sure never to leave one in a patient's room, however. We were probably too cute for our own good, but even today that memory makes me smile. But it wasn't all fun and games: Vickie and I worked a lot of 18 hour days in that ICU, and did a lot of good with a lot of people. St. Marys' was the place that made me proud to be a therapist, and I wept like a child when the day came to move on.

Blessing Hospital, in Quincy Illinois, was the hospital I went to after St. Marys, and it was where I learned to be a manager. I had expert tutelage from Harry Wolin, my vice president, and eager assistance from my second-in-command, Rebecca Bean. What made Blessing such a great place to work (other than the two people just mentioned) was its focus on what was good for the patient - not just in terms of medicine. If you wanted to raise the cost for a procedure, you had to justify it, and it had to be approved by a board committee before being implemented. 

The board at the hospital constantly sought to keep health care costs down - a far cry from what many boards do today. Blessing was the best hospital I ever worked for, and probably at that time the best hospital in America. It owed that to a man named Larry Swearingen, who was the CEO and who ran the organization like it was personal to him. It was never just a job to Larry. He cared, and everyone who worked for him knew it.

So here's the legal angle to all of this. Great organizations, that are well managed and encourage the best in performance from their clinicians and staff, these are the facilities that are rarely sued, and even more rarely, will a jury render a verdict against them. This is because juries like people who try to do their best for the patient, even if they might accidentally make an error now and then. I always say the best insurance policy is a good patient relationship, and Blessing proved that over and over again. 

On the plaintiff side of the aisle we say that unless the jury likes your client, they won't help your client. The same is true on the other side. If the jury doesn't dislike the defendant, they are less apt to make a finding against them. When an organization cultivates a culture of excellence like St. Mary's, or a culture of community trust, like Blessing, the payoff is never visible in the balance sheet as a separate line item. But it is very much visible in the bottom line.

Sound familiar? Something you've done? You know Charlene and she's just the kind of person to forget to get a witness. So you sign it. And then you forget about it. Until the man with the badge asks you to step into the office and answer a few questions.

Most state disciplinary statutes make it unlawful for a nurse or LPN to engage in fraud or dishonesty.  For example, one statute says discipline can be imposed for:

(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by sections 335.011 to 335.096; and

(12) Violation of any professional trust or confidence

It is interesting to look generally at what all these words really mean, and how the affect nursing duties and responsibilities. As a general rule, when a legislature uses a word in a statute, they mean for each word to have a specific meaning. Thus incompentency must mean something different that gross negligence or misconduct. "Incompetency" refers to a state of being.[1]  Incompetency means something different than "gross negligence." Otherwise, there would be no reason to list "incompetency" in the statute as a separate ground for discipline and "incompetency" would be redundant. A nurse who is generally competent could commit gross negligence; thus, "incompetency" must mean something different from these other terms. Some courts have defined it as  "a general lack of present ability or lack of disposition to use a present ability to perform a given duty."

Proving that a nurse made a mistake on a given day at a given time doesn't prove incompetence.  Rather, it proves error or negligence, but in most states this is not sufficient for discipline.  Incompetence goes to the inability of the practitioner to do the job properly. It is shown by proving that the nurse doesn't know important information related to their job, or, in the alternative, doesn't know what she doesn't know.

Misconduct is also a basis for discipline, but usually it must be misconduct that occurs "in the performance of the functions or duties," of the nurse. So, if a nurse issues a bad check and is convicted of a misdemeanor offense of passing a bad check, it should not result in license discipline because the misconduct did not occur on or related to the job.

Similarly a nurse who makes false statements to the Unemployment Office in order to obtain benefits may be dishonest, or may be making a false, fraudulent or misrepresenting statement. But since she isn't doing it on the job, and since it relates only peripherally to her job, it doesn't count for purposes of licensure discipline.

Where state boards often go with discipline, however, is the catch-all relating to violation of a professional trust or confidence. In one recent case the Board of Nursing said that the violation of a hospital policy regarding the Pyxis system was, in effect, a violation of a professional trust or confidence. While in some cases the violation of a hospital policy might be the violation of that facility's trust in the nurse, it is not automatic. For example, almost all facilities have a policy that requires employees to be on time for work. Failing to be on time is a violation of a facility policy, but it isn't a violation of the facility's professional trust. Similarly, most facilities have a policy that requires their nursing staff to bring in renewed nursing licenses when received from the Board of Nursing. A failure to bring in a copy of the license might be a violation of a policy, but wouldn't be a violation of a facility's trust (absent some other fact like an invalid or suspended license). 

A review of reported cases involving nursing licensure is instructive in this regard. In Board of Nursing v. Roberts,[2] the issue was whether writing an order for Ativan before actually receiving the order for Ativan over the telephone was grounds for discipline. In that case a patient's out-of-control behavior resulted in a narcotic being administered without a physician's order. The hospital suspended Roberts, and she did not return to work there. The Board of Nursing filed a complaint against Roberts and took the matter to hearing. The administrative hearing agency, however, gave Roberts the benefit of the doubt holding that confusion and reasonable assumptions led to the error. It stated:

Professional trust is the reliance on the special knowledge, training and authority of one who holds a professional license. Trieseler v. Helmbacher, 168 S.W.2d 1030, 1036 (Mo. 1943). Roberts' patients and coworkers had a right to expect that she would comport herself according to the accepted standards of the nursing profession. Certainly this includes the expectation that she and the staff she supervised would administer medication only in accordance with a physician's orders.

However, patients and coworkers also have a right to expect that a registered professional nurse will use his or her judgment in alerting an absent treating physician that treatment for which an order does not exist may be indicated. Roberts did nothing wrong in (1) assessing ND's state; (2) forming the opinion that she needed an injection of Ativan such as one recently administered to her; (3) calling Dr. Khan twice to obtain the order; or (4) assisting Long in restraining ND. She erred by writing the order before talking to the physician, but this was not the cause of the injection being given. 

We find that Roberts did not violate any professional trust or confidence.[3]

The administrative tribunal held that the obligation of trust and confidence ran to the coworkers and patients. 

In State Board of Nursing v. Burkett,[4] the licensee intercepted pharmacy stores of Dilaudid and appropriated them to her own use, presented a telephone order on hospital orders to the ICU in order to obtain Dilaudid, and gave her Pyxis codes to unlicensed and unauthorized personnel. Burkett was fired and reported to the Board for drug diversion. The Missouri Administrative Hearing Commission found grounds to discipline under § 335.066(12) stating:

Professional trust is the reliance on the special knowledge and skills that professional licensure evidences. Trieseler v. Helmbacher, 168 S.W.2d 1030, 1036 (Mo. 1943).  The Board's witness testified that Burkett's employer and colleagues trusted her to follow hospital policies, which the conduct at Findings 3, 4, and 5, violated.  We infer that such trust was based on her licensure as an RN.  Therefore, we conclude that Burkett is subject to discipline under section 335.066.2(12) for her violation of professional trust. 

In State Board of Nursing v. Banks,[5] the administrative tribunal found a violation of professional trust and confidence. The LPN in that matter worked at a skilled nursing facility and verbally abused two patients by threatening to kill one, and calling the other an "old ***."  The tribunal said:

Professional trust is reliance on a professional license as evidence of special knowledge and skills.  Such special knowledge and skills constitute a power imbalance between the professional and client, and abusing that power violates professional trust. Such trust is evident in O.P.'s request for Banks' assistance in returning to her room for bed. Banks' refusal of assistance and cruel retort to O.P. violated that trust. 

Where violations of the relationship of professional trust are found, it is normally in a situation like that found in State Board of Nursing v. Hallowell[6].  In that case the nurse was fired from multiple hospitals and nursing homes in nearly every instance for diverting narcotics. How the nurse continued to be hired when her work record was clearly pock-marked with all the indicators of drug abuse is rather astonishing. Nevertheless, when the Board caught up to her, the state disciplinary tribunal found, not surprisingly, that the serial diversion of narcotics was a violation of professional trust.

Sometimes a colleague or co-worker will ask a fellow employee to "cover" for them, either by signing out a medication, indicating that they saw a drug wasted, or by making annotations in the record that they did not personally witness. In the cases where these problems have arisen, in most cases the clinicians said "I just didn't think it was any big deal." Time later proved them wrong because the other co-worker, despite being a trusted employee, turned out to be diverting drugs, abusing patients, or stealing from the residents. The supervisory nurse was on the hook for signing documents when she did not actually witness the events that the documents recounted.

Take note of this: the Board of Nursing will come after your license if it can be demonstrated that you (1) falsified an entry in the medical record; (2) engaged in dishonest conduct on the job; (3) made a fraudulent entry in a medical record; or (4) violated the trust of the facility where you work by engaging in conduct that adversely affected the interests of the facility.

Never cover for another co-worker, even if you are sure they're telling the truth. Never assume another co-employee is telling the truth. Never put your license at risk. The cost is simply too high.

[1] Tendai v. Mo. St. Bd. of Registration for Healing Arts, 171 S.W.3d 358 (Mo. banc 2005).

[2] Missouri Administrative Hearing Commission report  # 00-1197-BN, (Ad. Hrg. Comm'n, Feb. 28, 2001)

[3]  Id., slip op. at 6-7

[4] Missouri Administrative Hearing Commission # 02-0457, Ad. Hrg. Comm'n. (Dec. 23, 2002)

[5] Missouri Administrative Hearing Commisison # 05-1153, (Ad. Hrg. Comm'n. Nov. 13, 2007)

[6] Missouri Administrative Hearing Commission # 00-2118 (Ad. Hrg. Comm'n , Jan. 26, 2001).

My friend who made that statement had seen media reports about a young woman whose murder conviction was overturned "on a technicality."

Like medical shows that demonstrate patients converting from asystole to sinus rhythm after defibrillation, the television media is often more interested in telling a story than understanding the legal basis for appellate action. Because it is important to understand the process, I thought I might devote this post to explaining "technicalities." Frequently when a state or federal appellate court overturns a conviction on appeal, the media says that the conviction was "overturned on a technicality." 

The inference is that some hyper-technical application of law resulted in an injustice and allowed a guilty person to walk free. In most cases, when an appellate court overturns a conviction, it normally means only that the government will have to try its case a second time. It usually does not result in the release from confinement of the person who appealed.  In many instances, in order to avoid the expense of a new trial, and in recognition of the exceptionally long times it takes to get an appellate opinion, state's attorneys will simply enter into an agreement with the offender to allow them to plead guilty to a lesser offense and get out of jail with "time served."  Often when the media report these events they characterize them as a miscarriage of justice. But a study of appellate opinions would suggest that in most cases they are anything but.

Take the case of Christy Weatherford Cole, a young woman from southern Missouri who was convicted of second degree murder under what lawyers call the "felony murder rule." Under the rule, a conviction for a felony that leads to the death of another is all it takes to lock the offender up for life, even if the offender had nothing to do with the death other than being involved with some other crime. The rule was meant to encompass the situation where two burglars enter a residence to steal, are surprised by the owner, and the owner is shot by one of the offenders.  The offender who shot the owner will face charges for murder in the first degree. The other offender is charged with the owner's murder (second degree) under the felony murder rule. In this situation but for the criminal act of the two conspirators, there would be no death. It seems fair to charge murder under these circumstances.

Unfortunately the application of the rule is often extended well beyond its original intent, and often with palpable injustice. Certainly this is the case in Ms. Cole's case where the felony was child endangerment, and the murder was committed by the woman's abusive boyfriend. The Court described the events on the day at issue as follows:

In March 2003, [boyfriend] was living with defendant and her three young sons. Defendant's three-year-old son, William, argued with his mother about having a drink of soda pop before eating his meal. Defendant did not want William to consume liquids before eating. She was concerned that he would not eat if he consumed liquid before his meal. [Boyfriend] was angry about William arguing with defendant. William was stomping his feet. This aggravated [Boyfriend] more. He told defendant to send William to him. [Boyfriend] undertook to discipline William by picking him up and laying him across his lap on his back. [Boyfriend] had his hands around William's neck. The back of William's head was pushed against a table next to the chair where [Boyfriend] was sitting. [Boyfriend] threw William across the room. William went limp. Defendant put clothes on William and she and [Boyfriend] took William to the ambulance shed in Gainesville, Missouri. William was then taken to the Gainesville Clinic where he was examined by medical personnel. Following examination, William was transported by helicopter to a Springfield, Missouri, hospital where he was diagnosed as severely neurologically depressed. A CT scan revealed retinal bleeding and subdural and subarachoid bleeding consistent with blunt force trauma. On April 1, 2003, William's injuries were determined to be irreparable. Care was terminated that day. William was pronounced dead late that afternoon.

State of Missouri v. Christy Weatherford Cole  (the boyfriends name has been redacted)

Ms. Cole was a single mother with a boyfriend. Like many such relationships in families with altered family dynamics, the boyfriend was easily irritated by children, and frequently violent in disciplining the children. Cole appears to have been easily manipulated by the boyfriend.  Although there was no evidence that the boyfriend ever previously caused serious injury to children, in this case he threw a small child across the room resulting in the child's death. He then prevailed on Cole to help him cover up his wrongful acts.

Cole was charged with the felony of endangering a child by placing him in contact with the boyfriend. The state charged a felony charge which required them to prove that Cole placed the child in danger "knowingly." The second count of the indictment charged felony murder based on the charge of child endangerment. In other words, by convicting the woman of child endangerment, the jury was also convicting her of murder.

The big issue at trial was whether Cole placed the child in danger knowingly, or whether she was merely criminally negligent. If she was acting with knowledge that exposing the child to the boyfriend would result in the child's injury or death, she could be convicted of the felony. If she was merely criminally negligent, she could only be convicted of a misdemeanor which would not invoke the felony murder rule. The evidence at trial was equivocal on a variety of issues, but certainly on the issue of whether the young woman acted with knowing intent reasonable jurors could have disagreed.

Cole asked for a "lesser included offense" instruction which would have let the jury consider the lesser misdemeanor charge rather than the felony charge. The trial judge refused to instruct, and the jury convicted the young woman.

This young woman was in an abusive relationship, and had been told by the boyfriend to lie to authorities when explaining what happened to the child. There was no prior evidence of abuse.  There was very little from which a jury could conclude that Cole acted with anything other than negligence. In reversing, the Missouri Court of Appeals said:

Although there was evidence that [boyfriend] had struck William on past occasions in an effort at discipline, there was other evidence that it was not defendant's practice to place William in direct contact with [boyfriend] for discipline. Whether defendant's act of placing William in a position to be in direct contact with [boyfriend] demonstrated an actual risk as opposed to a potential risk to the child is a fact question the jury should have been permitted to decide. Had the jury been instructed on endangering the welfare of a child in the second degree as a lesser included offense, it could have determined whether defendant's actions knowingly subjected William to an actual risk of serious harm or whether her actions were criminally negligent so as to present a potential risk to William. Manifest injustice or miscarriage of justice occurred by the jury not having the opportunity to analyze the evidence in that regard. Point III is granted. The conviction of endangering the welfare of a child in the first degree is reversed. Because defendant's conviction of murder in the second degree pursuant to Section 565.021.1(1) is dependent on a supporting conviction of a felony, that conviction is reversed.

State of Missouri v. Christy Weatherford Cole

While it may sound somewhat technical to distinguish between an intent of "knowing" and an intent of criminal negligence, that is exactly the purpose of appellate courts, and the Court here reached the right result. The loss of a child is a tragedy that transcends mere bereavement.  This woman not only lost her child, she lost her freedom when the evidence established at most that she made a bad decision on a bad day.  She may have been guilty of bad taste in boyfriends, but she surely never meant for harm to come to her child.

Appellate courts are in place to prevent the justice system from acting out of emotion and a desire for retribution. When trial courts make mistakes, the appellate courts correct them, not by setting the offender free, but rather, by making the courts give the state another chance to prove guilt beyond a reasonable doubt under terms that are fair.  An appellate court requiring the state to prove its case under fair terms, and give the accused the benefit of the presumption of innocence is not a technicality. It is a safeguard built into the system to protect innocent persons.

That's one technicality we should all remember.

It is said that “assume” is the only word that makes an “ass” out of “u” and “me.” In a slightly more earthy comment, a drill sergeant of mine suggested that the word was the mother of all mistakes.  Regardless of which way you remember it, remember that assume is not one of those things you want to do as a clinician.

Assumptions get clinicians in trouble in the hospital, and they also cause problems in court.

In dealing with patients, clinicians are taught to check assumptions. If you assume that an obtunded patient is unresponsive due to narcotics, you check that assumption by giving Narcan and by follow up. If you assume that a low pulse oximetry value is due to a breathing problem, you evaluate the chest. You only get into trouble with assumptions when you fail to test them.

A good example can be found in the current lawsuit brought by John Ritter’s wife (Amy Yasbeck) against the hospital where Ritter was treated when he was brought in with chest pain. In Ritter’s case, his chest pain was considered to be of cardiac origin, and a chest film was not obtained. Had a chest film been obtained it would have shown an enlarged aorta.  t was an aortic dissection, and not a heart attack, that claimed Ritter’s life. But, because a heart attack is far more common, and because Ritter was not stabilizing, the doctors gave aspirin and anticoagulants – both of which would have been correct for a heart attack patient – and both of which accelerated the aortic dissection.

Another way you can get into trouble in a deposition is to assume that you know more medicine or physiology than the person deposing you. Most attorneys learn the medicine backwards and forwards before they attempt to depose a nurse, physician, or other clinician. While they may not have the same experience in the area of medicine that you as the clinician do, they will know the anatomy, the physiology and the pathophysiology of every issue or disease process in the case.

Recently, in a case, the opposing counsel sought to qualify its nurse witness as an expert on a particular drug. Counsel asked if the nurse was familiar with the drug, had used it, knew its side effects, and similar questions. When it was my time to examine the witness I walked up and placed a yellow legal pad in front of the witness and asked him to draw the molecular formula.  He couldn’t.  He couldn’t tell me how the drug was chemically described. He could not tell me what the “three compartment model” was with regard to the drug. All of these questions came right off the package insert, and a more seasoned witness would have simply said “we never use any of that stuff when we use the drug.” But instead, he got rattled and admitted he was no expert on the drug. So, never assume that the lawyer who examines you is going to give you softballs to hit.

Another assumption that leads to trouble is to assume that the case is about what you thing is important, instead of what the lawyer thinks is important. To you, the issue may well be the patient’s hypoxemia. But to the lawyer, the issues might be the failure to do assessments at particular times.

Before a lawyer comes to depose you, he has met with someone in your profession and he has prepared a list of questions based on what that expert wants to know. If you have access to medical records or other documents to prepare for the deposition, it is a good idea to review them and try to remember as much as you can about what happened. The lawyer who will be deposing you has put a lot of time and effort into the process, and he or she will be ready.

ave you ever watched those legal shows and heard the objection "leading question" or "he's leading the witness" Have you wondered just what that means, and why it might be improper?

You're not alone. As I recently learned in an administrative hearing, many lawyers don't understand leading questions, how to use them, and when to use them.

A "leading question" is a question that suggests the answer. "You're a nurse?" Here the witness needs only say yes. Because the question suggests its answer, it is considered a leading question. Using leading questions, a lawyer can essentially testify for a witness and thereby avoid the problems that come with more open-ended questions.

Because there is some mischief that comes from letting lawyers do the testifying court, the rule is that during a person's direct examination they must be asked questions, and may not be examined using leading questions. A direct examination is where a witness is called by a party for the purpose of testifying for that party. When a witness has testified for a party, and another party examines them, that is considered cross examination.

A direct exam looks like this:

Can you please state your name?

John Doe

And where do you work?

Our Lady of Perpetual Billing Hospital

And what do you do there?

I'm a nurse

And on what nursing unit are you a nurse?

Medical-Surgical 4^th Floor....

The witness must be asked a series of open-ended questions and asked to testify from memory about what happened.  If a questioner starts to lead his witness with specific questions, in most cases the other attorney will object.

What's interesting, however, is that once the witness has finished testifying by direct examination, the cross-examiner can use leading questions, and usually does so to great effect.  For example:

You testified that you never saw Mr. Jones fall?

That's right

You weren't with him all night, were you?

No, I wasn't.

And in fact, you were off the floor on your meal break when he fell?

Yeah.

So you left this vulernable patient, to go off the floor, and while you were gone off the floor, that's when he fell?

I guess

When being deposed, or questioned by an attorney before trial, it is important to remember that you have a voice and can do something other than say yes or no if a leading question is asked.  Although the lawyers job is to object, your job is to answer the question by listening to the question, thinking about the answer, and then giving an answer that corrects any improprieties in the question.

Suppose that you came in and found a patient on the floor. You assessed the patient, found that the leg appeared to be displaced, and concluded that there was a likely hip fracture. You took all appropriate steps to treat the patient and provide them with pain relief.  In a deposition, a lawyer might try something like this:

You're a good nurse

I think so

You've taken care of lots of patients

Sure

You take pride in your nursing

Absolutely.

So, you came into the room

Yeah

You saw the patient

Yeah

And you knew right away the hip was broken, didn't you.

Now, the temptation at this point is to say "yes," because that's what you've been doing.  The whole purpose of asking about what a great nurse you are (a subject the questioner knows you'll agree with him on), is to get you thinking about answering the questions with yes.  It's easy.  You fall into the habit, and then, when you maybe should analyze the question more carefully, you simply say yes.

In the example above, you can't "know" that the hip is broken unless you have x-ray vision.  The only way to make that evaluation is radiographically.  And so, the answer to the question is really "I saw what appeared to be displacement, but I do not make diagnoses of fractures, that's a doctor's job."

Nevertheless, nine out of ten nurses will say "yes," to the question, or will say something like "that's pretty much what I was thinking."

The problem with agreeing with the questioner during an examination before trial is not that you'll agree on the easy stuff like whether you are a competent nurse, but rather, whether you'll just get so comfortable talking to the lawyer that you forget that you're the one testifying.

“Are you nurse Corgan?”

“Yes I am.

“Here, you’ve been served.”

Across the country every day this happens to nurses who are witnesses in medical or personal injury lawsuits. Sometimes the lawyers just want to know how bad a person’s injuries were. Other times, they want to hang the clinicians out to dry for negligence. Irrespective of whether you’re being sought as a fact witness or a defendant, when you get subpoenaed to testify in a deposition or “examination before trial,” it is a serious matter.

Depositions are modified courtroom experiences. In most jurisdictions, lawyers can record your testimony not only by using a court reporter, who takes down everything you say, but also by video, which shows how you look, dress, and act during a deposition. Everything you say is taken under oath, and what you say can and will be used against you, or your employer, later on. There is no judge there to rule on the objections, and sometimes the discussions between counsel get really ugly. 

If your employer does not provide an attorney to defend you in the deposition, then you need to obtain one. This is vital. If you fail to have an attorney to protect your rights, you may be told – erroneously – that you have to answer certain questions. Never, under any circumstances, go to a deposition without an attorney to look out for you.

If you have an attorney, he or she will tell you what to bring (usually nothing unless told otherwise), what not to bring, and how to dress. If you don’t have an attorney, then the rule is you go dressed like you were going to church, and you bring along with you any documents you have that are responsive to the subpoena (if one has been issued). If no documents have been requested, do not bring any.

While all lawyers have different styles and different personalities, in most cases depositions start out with very open-ended, very general questions.  The lawyer asks your name, your spouse’s name, your address, and whether you have any adult children.  While this seems invasive, the lawyer is trying to find out who you are related to in the jurisdiction in the event that some of those people show up on the jury panel.

The lawyer will then ask about your education, training, experience and employment history. These are often asked as just folksy “getting to know you” kinds of questions. Unless they think you haven’t been trained at all, they likely don’t care where you went to school. They ask it in order to put you at ease and build rapport.

Since I represent plaintiffs, I often tell them that the lawyer on the other side is not their enemy, but that doesn’t make him their friend. I always remind them that the other lawyer is the guy who gets paid to see that they don’t get paid. So, I counsel them to remain wary.

The same applies for defendants. The lawyer for the plaintiff gets paid only if you or your insurance company pay him some money. He may not be the enemy, but he surely is not your friend, and you get lulled into a false sense of security at your own risk.

One of the things that frequently comes up in a deposition is whether the clinician has an “independent memory” of the events at issue. In some cases, nurses will have such a memory. In other words, the events at issue stand out from the medical records and you can remember the patient and what happened on that day. But in many cases, the patient, the events at issue, and everything else about the case are lost to the tunnels of time, and the only thing the clinician has is what’s written in the patient’s chart.

This is the reason why charting properly is so important. Many times, at trial, the only thing that saves the clinicians, or in some cases, the only thing that kills the clinicians, is what they have written down.

Depositions are important because they preserve evidence for trial. In my next blog entry, we’ll talk about specific types of questions used in depositions.

Many years ago, when I was starting out as a respiratory therapist, I was working a 3-11 shift in the ICU.  One of my favorite surgeons, Dr. Jomain, who never minced words with staff, came to the bedside of my patient and began taking the pulse of the patient.  I smiled and, when he completed the process, said “you could find the pulse on the cardiac monitor.”

Dr. Jomain said “that’s what’s wrong with you young guys.  You are so proud of your machines and monitors that you wind up monitoring the monitors.  There is no substitute for placing your hand on a patient and taking your measure of them.”

Although I agree with what Dr. Jomain said, and tried to emulate him in that regard as I took care of patients, I think even Dr. Jomain would be impressed today by the vast changes in technology that have made patient care safer and better.  I also think I am no longer a “young guy.”

Negligence is defined as acting outside the standard of care, and the standard of care is defined as doing that which a reasonably prudent practitioner would do under the same or similar circumstances. 

One of the aspects of negligence that is often overlooked is when it becomes unreasonable to rely on “old technology.” With computers getting progressively more powerful and microcircuitry making monitoring devices smaller and smaller, it sometimes is difficult to separate out what is merely new and smaller from what is new and improved. Buying new pulse oximeters is a luxury few facilities can afford unless there is a valid clinical reason to do so.

Pulse oximeters are important in nursing facilities because they are a non-invasive method of determining oxygenation. Though never a substitute for a full arterial blood gas, a pulse oximetry reading at least demonstrates that the patient is sufficiently oxygenated. It is quick, non-invasive, not particularly costly to the patient or the home, and gives nurses some legal cover if a patient later suffers an anoxia-related injury. But most homes that have pulse oximeters have five or ten year old devices that are nowhere near the current state of the art. Still, they are by and large accurate for well patients, but probably not for patients who are very sick. Because of changes in the state of the art in physiologic monitoring, facilities may wish to revisit their monitors.

Recently, changes in the technology associated with pulse oximetry has given hospitals and nursing facilities a strong rationale for buying improved pulse oximeters. There is new monitoring equipment that can not only detect oxyhemoglobin saturation values like current pulse oximeters, it can detect carboxyhemoglobin and methemeglobin levels noninvasively. Add to these abilities the fact that the devices are designed not to be fooled by patient motion and can read accurately during periods of low perfusion, and upgrading to this kind of pulse oximetry comes very close to a standard of care.

Although not recommending a particular vendor, clinicians are encouraged to look for oximeters when upgrading equipment, that are FDA certified to read through motion and low perfusion.  A number of well known vendors make these devices.

A series of studies done by a number of different organizations have all shown that these new generation devices tend to work better and more reliably than devices that do not contain low perfusion technology.  Sadly, the same articles essentially provide plaintiffs lawyers with an absolutely great avenue of attack when nursing centers attempt to show that the patient was well-oxygenated. If a device has not been certified to read through motion and detect accurately through low perfusion, some studies show it 30% to 40% more likely to offer false negatives and sometimes as much as 50% more likely to offer false positives.  In essence, the older monitors either miss events altogether, or they’re always crying “wolf.”  

If a clinician hasn’t read these studies, and attempts to testify that the monitoring equipment was accurate, he or she is subject to cross examination with the plethora of studies showing that conventional monitoring equipment is flawed. Either way, the patient suffers and the clinicians willingness to believe the outdated equipment also falters.

If it has been ten or more years since you’ve improved your facilities pulse oximeters, it is a good idea to go back out and look for equipment that is motion-accurate and low-perfusion-accurate. Clinicians should test, evaluate, and verify the accuracy of any monitor they seek to use on a patient, and should check with peers for their recommendations.

As long as you keep it to cars, furniture, Amway products, and non-health-care related items, that's true. But the minute that you apply this kind of thinking -- or this kind of incentive -- to health care, you run afoul of the law.

The Medicare and Medicaid Patient Protection Act of 1987, as amended, 42 U.S.C. §1320a-7b (the "Antikickback Statute"), provides for criminal penalties for certain acts impacting Medicare and state health care (e.g., Medicaid) reimbursable services. Section 1320a-7b(b), commonly called the "anti-kickback" provision, says:

"Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe or rebate) directly or indirectly, overtly or covertly, in cash or in kind in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under [Medicare] or a State health care program, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under [Medicare] or a State health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both."

If that wasn't bad enough, this subsection also provides:

"Whoever knowingly and willfully offers and pays any remuneration (including any kickback, bribe or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under [Medicare] or a State health care program, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under [Medicare] or a State health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both."

The Antikickback Statute prohibits offering money (or services or property) in exchange for a referral or recommendation of health care services by a provider. The law has generally been applied to broker-style arrangements, where an individual or organization offers money to someone for the purpose of recommending or referring an individual for health care services or products. These kinds of payments are frequently found in nursing facilities, and the HHS OIG is looking carefully for these kinds of arrangements. Both the person who offers the money and the person who accepts are in trouble.

In an Antikickback Statute analysis, it is immaterial whether the offered money actually induces the referral or recommendation. It is enough that it has the capacity to do so. In the sentinel case, United States v. Greber, 760 F.2d 68, 71 (3rd Cir.), cert. denied, 474 U.S. 988 (1985), the defendant was an osteopathic physician who in addition to teaching duties, owned a company called Cardio-Med that provided holter-monitor services.  Whenever another physician ordered a holter monitor through Cardio-Med, Dr. Greber billed Medicare, and paid a referral fee to the physican who ordered the test. The government charged Greber with mail fraud and false statements, and violation of the anti-kickback statute. In his defense Greber said that part of the payments were to compensate the referring physician for explaining the results to the patient. 

The Court held that it was irrelevant that there were other legitimate reasons for the remuneration. If one purpose was to induce referrals, then the Antikickback Statute was violated. Id. at 71.

The Anti-Kickback Statute is very broadly worded, and it applies to any money or property paid to another.   For example, where a nurse receives a $50 gift card for every patient she successfully switches from other pharmacies to XYZ Pharmacy, she and XYZ are guilty of a violating the anti-kickback statute. The financial records showing the gift card purchases will be exhibit 1 in the criminal trial.

Similarly, suppose that Morpheus Hospice has the contract for hospice services in a nursing home, and a competing hospice, Advantage Hospice, wants the business. Advantage proposes that in return for recommending Advantage Hospice to nursing home patients, Advantage will provide monthly inservices at the nursing home to assist nurses with their continuing education credits. During these inservice presentations, free food is provided, pens are given away, and other items of value pass between the hospice and the facility's nurses. If the facility accepts this offer, both Advantage and the facility are breaking the law. The law not only prohibits offering the payment, it prohibits accepting the payment. Both entities could be in serious trouble.  While there are no financial records to establish the payment, if even one nurse is prepared to testify that she understood the switch of hospice providers was linked to the furnishing of freebies by the hospice, there is a good chance that someone will be spending the night in a federal lockup.

Additionally, an arrangement of this type that violates the Anti-Kickback statute also violates the False Claims Act. That makes thousands of eagle-eyed nurses, aides, therapists, and beneficiaries potential reward-driven whistleblowers who can profit from the facility's failure to follow the law.

When it comes to kickbacks or rewards for referrals in healthcare, the safest policy is "just say no."

End of life care is a difficult subject. It finally has a thorough and appropriate treatment. End-of-Life Communication in the ICU, A Global Perspective, edited and co-written by David W. Crippen, MD, is an excellent treatise on what goes on in the end-of-life jungle. I say this not because I contributed a chapter to this work, but rather, because clinicians will find helpful and useful material in it. I also mention it because the legal chapter in the book deals with a topic that comes up frequently in the ICU, and perhaps a little less frequently in the nursing home:  Just Who Is In Charge Here? At the end of life, who is it that gets to make decisions about who lives and who dies?

In most cases, it is not the nurses and bedside clinicians. Recently, a New York nurse found out that her clinical judgment did not trump the wishes of the patient. Martha Kovach, RN, agreed to turn in her license after being accused of halting CPR on a nursing home resident being taken to a hospital emergency room. The incident occurred April 17 at a nursing home adjacent to the local hospital. The nurse claimed that she didn't have the proper equipment or enough help, and did the best she could.

If the issue was brain surgery, putting in an IV line, or even intubating the patient, I might agree. But CPR is, by its nature, not something that actually requires equipment. Clinicians by virtue of their jobs are required to do CPR even without an ambu bag, and even without oxygen, and yes, even without a second team member, when the situation requires it. Apparently, in this situation, the situation required it because the nurse surrendered her license to the state rather than fight the charges.

In Kovach's case, the patient had a health care proxy and that required full code efforts be implemented. Whether Kovach agreed or disagreed isn't clear. What is clear is that she started, and then failed to continue.  That is an absolute no no!

Irrespective of whether the patient has a health care proxy or not, once CPR is started, it should only be discontinued on a physician's order.  f the health care proxy says the patient should not receive CPR, and someone erroneously begins, CPR should continue until it is ordered stopped by a physician. The reason, as so aptly demonstrated by Kovach's case, is that these are the kinds of decisions that are often second-guessed. 

When they are second-guessed, they are second-guessed around a conference table, in a well-lighted room, during the day, by well-rested people who have not been up all night and who did not discover a pulseless non-breathing individual at 3:00 a.m. without sufficient help on duty to assist them with CPR. The people second-guessing often have lofty-sounding degrees from important educational institutions, and an appointment to a board by a friendly governor. The civilian members of the board have never rendered patient care at the bedside, and the nurse members have likely not had to make a clinical decision in several years. As a result, the standards that apply are those from the ivory towers of academia, and not those of the real world. Is that fair?  Probably not, but it is reality. As someone who defends nurses in front of the state board, I've seen the results when the Board decides to apply standards that are not based on reason or clinical rationales.

What role does clinical judgment play? That's hard to discern. When a patient is found cold, blue, and in the early stages of rigor, the application of CPR is not only futile, it's usually inappropriate. But where a rattled aide or co-worker begins, that CPR should not be stopped until the patient is pronounced or state-appointed personnel order it stopped. 

Clinicians must be wary not only of being second-guessed by their professional board, but also by the family who may be completely convinced that Uncle Seymour, with CPR, would have pulled through in spite of his advanced rigor-mortis and non-functioning brain stem. Families like that tend to sue, and those lawsuits, even if they ultimately are unsuccessful, are still costly.

There are also a variety of ways to err in end-of-life care. Who has the authority to terminate life support? Is it the wife?  Is it the children?  Although all of these may need to be consulted, the fact is that anyone who could bring an action for wrongful death is a person that needs to be part of the decision-making process unless the patient has ended the speculation about who is proper to speak for them by giving someone a durable power of attorney for health care. This document permits the "agent" to make decisions for the "principal" and decide if life support should be continued or withdrawn. But, what if the agent has a conflict, or is exercising his authority in a way that may indicate his wishes conflict with those of the patient? 

The answer, one that is both proper and expensive, is to involve the courts. Guardianship is a court-monitored process that allows a judge to appoint the proper person to make the end-of-life decision for the patient. Decisions to terminate life support can't be fixed with an eraser, and so it is important to get them right. If you don't understand what the rules are, and when a health care power of attorney is in force and when it is not, then it is important to have good legal help available to you to assist with these kinds of issues. Sometimes hospitals sue to get courts to appoint guardians so that they do not bear the legal responsibility for terminating life support. Sometimes these struggles drag on for decades, like Terri Schiavo, whose case ultimately reached the 11^th Circuit Court of Appeals.

If you don't know what a patient's code status is, it is a good idea to check. And, if you haven't taken a look at the institutional policies on CPR, and when it is to be started, and when it may be stopped, then it's a good idea to dust those off and take a careful look. 

The license you save may be your own!

When I went to the drawer to find my flashlights after the power went off, only then did I recognize that I had no new batteries, and that my flashlights would be good for perhaps no more than one night. I had not planned well for an ice storm I knew was coming more than 24 hours earlier. Fortunately, I had a place to go, and no medical conditions to prevent me from going. Nursing home residents don't have that luxury.

Every nursing facility should have a plan to meet the problems associated with bad weather. While the owners of the now infamous St. Rita's in Louisiana escaped criminal conviction for the deaths of more than twenty residents during Hurricane Katrina, the civil liability will likely hound the owners and the insurers well into the second decade of this century. For a full report of the criminal trial, click here.

All health care facilities are under a duty to act reasonably under the circumstances. For the most part, weather emergencies are known for 12 to 24 hours before the actual emergency arrives. The time to start planning for a weather emergency, however, was yesterday. If you don't have plans, and you haven't tested those plans with drills, you're positioning yourself for civil liability.

Emergency preparedness starts with an analysis of the kinds of extreme weather conditions seen in the area where the facility operates. Along the Gulf Coast, Hurricanes are a bigger threat than ice storms, but both have been known to occur. Similarly, while Midwesterners get lots of snow, ice, and blizzard conditions during the Winter, conditions during Spring and Summer mandate a much higher level of alert readiness because those conditions change in the course of minutes, not over hours.

A Weather Emergency plan focuses on protecting residents from the perils of the weather; those that are obvious and those that are not.  Lightning is an obvious peril associated with a summer thunderstorm, but so is hypothermia.  Structural damage may lead to residents becoming wet and cold. Loss of electrical power may cut off hot water supplies.  Planning for these events requires the planner to be a good science fiction writer.  That means envisioning things that have never happened previously, as well as the natural and probable consequences of things that have happened before.

In my neighborhood we have underground utilities. For the last eight years we have never lost power.  But the loss of a transformer in another subdivision less than 300 meters from the end of our subdivision took out the lights for over 1500 customers in the area, including us.  Having never lost power, I did not have a plan for dealing with it. A nursing facility cannot get away with that.

The loss of electrical power in a nursing facility can often be fatal to patients, particularly if those patients require electrical power for ventilators or similar life-support equipment. Sometimes this can be worked around using a portable generator, although the  "load" on the generator may require taking off all but the most essential of services. Also, care must be taken to ventilate the generator and avoid Carbon Monoxide poisoning. A recent article in the St. Louis Post-Dispatch reveals that most nursing homes don't have back-up generators.

In facilities with computer-based medical records, particularly those without battery back up systems, power failure can nearly shut down patient care, requiring a resort to paper-based record keeping during the emergency. That means paper, pens, flashlights, and additional staff.  Someone has to hold the light, while others turn the patient.

Sometimes with the loss of power comes the loss of climate control. Extremes of heat and cold can have effects on the elderly beyond simply hypothermia. Disaster planning should include plans for how to deal with losses of environmental controls and safeguard patients not only from hypothermia, but from hyperthermia as well. See