`Following Doctor's Orders' is Not a Good Defense for RN.

CASE ON POINT: Meloy v. Bachmeier, 2001 WL 1160446 N.W.2d -ND

ISSUE: Should a nurse be able to defend a claim for alleged negligence merely by stating that she was "following doctor's orders?" Where there is clear and compelling evidence that a nurse either knew or should have known that "following doctor's orders" might jeopardize the patient's health or even subject him to the risk of death, "following doctor's orders" is not a good defense.

CASE FACTS: William Meloy was sentenced to serve time at North Dakota State Penitentiary (NDSP) beginning March 31, 1998. Meloy suffered from obstructive sleep apnea (OSA), a condition which cased him to stop breathing when he slept. He was diagnosed with OSA by a physician in December 1997, and from that time on used a Continuous Positive Air Pressure (CPAP) machine, which alleviated the condition, when he slept. He continued to use a CPAP when he was incarcerated at another facility prior to commencing his sentence at NDSP. Upon admission, the inmate completed various intake health forms and was examined by a nurse. The completed forms indicated that the inmate suffered from sleep apnea and that he had used a CPAP to treat it. He executed several releases authorizing authorities to obtain his medical records from other institutions. The records received on April 6 or 7, detailed his past diagnoses and treatments, including the OSA and use of the CPAP. Nurse's notes from April 1, 1998, indicated that the inmate complained that day of pressure in his chest. He was examined by Dr. Bernard O'Neill. Dr. O'Neill diagnosed sleep apnea and listed five items under "treatment;" one of them indicated that the inmate "may use his own CPAP if available." Nurse's notes indicated that the patient complained of various problems on April 4 and April 11. It was clear that his complaints on April 11 encompassed his OSA. The patient's chart also indicates that his past medical records were received on April 7 and were made available for physician's review on April 14. Dr. O'Neill apparently reviewed these records; he entered physician's notes indicating that he "reviewed past medical summaries and stands by his orders." The patient was advised of this fact by Nurse Kathy Bachmeier. In response to the communication he sent to her on April 12, indicating that the OSA and lack of CPAP was continuing to cause him trouble, her response dated April 14 indicated that "if you provide your own CPAP machine, you may use it ..." This prompted the inmate to file a grievance against the medical department on April 15; the response to this grievance, on June 26, indicated that the medical department had followed doctor's orders and noted that the inmate had by then received a CPAP. Records indicated that the patient complained of chest pain on April 18. Apparently, the nurse discussed the patient's desire for a CPAP with him; the patient's chart indicated that the nurse discussed the issue with "Kathy," presumably Kathy Bachmeier, and wrote that "inmate to bring in one." The patient was admitted to the infirmary that night; the next day, he reported no chest pains. He was given an EKG on April 19 and ultimately remained in the infirmary until May 8. During this time, he was closely monitored and his complaints of chest pain seemed to come and go. On May 8, the patient saw cardiologist, Dr. Kearney. She ultimately recommended that he "be placed on CPAP on a nightly basis to avoid severe and life threatening complications of sleep apnea and/or that he be able to maintain the head of his bed at approximately 45 degrees. He then received a CPAP machine within a few hours. The inmate brought suit in Federal Court against Nurse Bachmeier and Dr. O'Neill alleging a violation of his Eighth Amendment rights. The defendants filed a motion for summary judgment.

COURT'S OPINION: The United States District Court for the District of North Dakota, Southwestern Division, denied the defendants' motion for summary judgment. The court held, inter alia, that the record contained enough evidence to allow a jury to find that Nurse Bachmeier had actual knowledge of the patient's condition and his need for a CPAP, and that she was deliberately indifferent to his need.

LEGAL COMMENTARY: The court noted that the records in the case reflected that Nurse Bachmeier had information which suggested that Dr. O'Neill's orders were not helping the patient and that the patient continued to be in pain and in danger. As a supervisor with direct knowledge of the patient's case, the court found that she could not escape liability solely by "following orders." The court found that because of Nurse Bachmeier's training, supervisory duties, and actual knowledge of the patient's condition, she could not escape liability so easily. Therefore, the court concluded that the claim that Nurse Bachmeier allegedly violated the law, when viewed broadly, was clearly established. The patient had a right to be free of deliberate indifference by the medical staff. The court found that these rights were clearly established when the events at issue occurred. Accordingly, the court held that the case presented issues for a jury to decide.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammello & Associates. He has presented seminars on medical nursing and hospitals law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar register of Preeminent Lawyers and Marquis Who's Who in America Law.