Nursing in Florida: the path to professional liability.

Gone are the days when nurses were considered mere "hand-servants" of physicians.[1] Today, the professional nurse exercises a significant amount of responsibility for a patient's well-being. Contemporary nurses can be found managing the care of gravely ill infants in state-of-the-art neonatal intensive care units, independently ensuring the health and safety of workers in industrial facilities, and providing primary emergency response to consumers in computerized poison control centers.[2] Because of the greater scope of their responsibilities,[3] as well as the unique role they play in the health care delivery system,[4] professional nurses are being individually sued with increasing frequency.

Malpractice plaintiffs have typically relied upon the vicarious liability doctrines of respondeat superior or borrowed servant/captain-of-the-ship to obtain a recovery for the negligent acts of nurses. Although these theories remain popular, a nurse today may find herself[5] named and sued as an individual defendant. This article discusses how professional nursing liability theories have evolved and been applied in the case law. The article also reviews Florida case law,[6] discusses common fact patterns in nursing malpractice cases and, in some instances, suggests ways in which the malpractice could have been prevented.

Theories of Liability

Historically, hospitals were not held liable for the acts of their employees.[7] This protection developed from the doctrine of charitable immunity, which basically stated that a charitable organization (such as a hospital) could not be sued. In Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914),Justice Cardozo stated that hospitals were "simply a physical place consisting of bricks, mortar, beds and equipment."[8] Because the hospital itself was not considered the health care provider, courts did not hold it liable for the negligent acts of others who provide patient care within the facility. Physicians and nurses were deemed independent contractors who practiced their skills in the hospital without supervision or control by the hospital itself.[9] Over time, the nature of the hospital changed,[10] and today it is well settled that a hospital can be held vicariously liable for the negligent conduct of its nurse-employees committed within the scope of their employment.[11] The basis of liability is the employment relationship, and legal actions are based on the doctrine of respondeat superior.[12]

Respondeat superior is a basic rule of agency[13] "whereby an employer, master, [14] or principal is liable for the negligent acts of his employees, servants,[15] or agents when those acts arise in the course and scope of their employment, service, or agency."[16] Pursuant to this doctrine, a hospital or physician "is responsible for an injury done to the patient through the want of proper skill and care in his assistant, apprentice, agent, or employee."[17] Thus, for example, a nurse employed by a hospital or physician who negligently injures a patient while acting within the scope of the nurse's duties might be liable under this theory.[18] A prospective plaintiff would bring suit against the hospital or physician alleging malpractice on the part of the hospital or the physician's employee. Once the elements of a malpractice cause of action were proven, any resulting judgment would be collected solely from the hospital or physician.[19] While this doctrine is relatively easy to apply when only one employer is involved, i.e., a hospital, it becomes more difficult when more than one potential employer exists.[20] The borrowed servant rule was therefore developed to assign liability for employee negligence to the proper employer.[21]

The borrowed servant doctrine developed under the premise that "[a] servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not others."[22] In applying this rule, courts focus their inquiry on which master was being served at the time of the specific act that caused the alleged injury.[23] The employer that is found to have been the master at the time of the act that caused the injury is vicariously liable, whereas the other employer is relieved of liability.[24] Thus, for example, where a patient complains of malpractice after an operating room surgeon administers an improper solution during surgery which causes injury to the patient, the nurse who prepared the solution might be considered a borrowed servant of the operating room surgeon, under whose direct supervision the nurse was working.[25]

The captain-of-the-ship doctrine[26] is an extension of the borrowed servant rule that has been applied in operating room cases.[27] This doctrine presumes a master-servant relationship merely from the presence of the surgeon and other operating personnel in the operating room.[28] Once the surgeon enters the ship--the operating room--the surgeon has the complete right of control over the other personnel in the operating room.[29] This doctrine has lost favor in recent years,[30] primarily because fewer hospitals are protected by charitable immunity and can now be held liable through the acts of its employees [31]

When nurses fail to meet standards of care in a hospital setting due to circumstances totally out of their control, the proper cause of action would be against the hospital for corporate negligence. This doctrine, as it applies to hospitals, was first adopted in 1965 in the Illinois case, Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 (1966). In 1989, the doctrine was recognized by the Florida Supreme Court in Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989). The Insinga decision placed certain nondelegable duties regarding patient care directly on the hospital.[32] The Florida Supreme Court held that a hospital owes an independent duty to its patients to select and maintain competent medical staff to treat them.[33] Failure to meet this standard may subject the hospital to liability.[34] The corporate negligence doctrine has been extended to impose upon hospitals an affirmative nondelegable duty to provide nurses with staffing, equipment, and other support necessary to meet minimum prevailing standards of practice.[35] Thus, for example, if a hospital's policy allowed chronic understaffing of an intensive care unit, and a nurse could not meet the standard of care because of the understaffing, the hospital could be held liable for corporate negligence.

In today's competitive health care environment and with the implementation of maximum cost containment measures, hospitals must walk a fine line to reconcile the competing factors of decreasing the cost of health care while maintaining the standard of care. When a hospital's cost containment efforts significantly and adversely affect the standard and quality of patient care, the hospital could be subject to increased litigation under the corporate negligence doctrine for harm shown to have proximately resulted.

As discussed, when a nurse acts appropriately under the direction and orders of a physician in matters involving medical professional skill and judgment, the nurse is absolved from liability for these acts. Similarly, where a nurse adequately and properly performs ministerial acts pursuant to her employer hospital's policies--where those policies meet the standard of care for hospitals--she is not liable. Where, however, a nurse is called upon to exercise independent professional judgment and she does so negligently, she may be liable as discussed in the next section.

Duties of the Professional Nurse

In Florida, a nurse owes to the patient the duty to possess that degree of learning and skill ordinarily possessed by nurses in good standing[36] in the local community.[37] Further, a nurse is required to exercise that degree of care ordinarily exercised by other members of the profession acting under similar circumstances.[38] Nursing malpractice arises when a nurse fails to meet these minimum standards.[39] Most acts of nursing malpractice fall within a few categories of omissions or commissions. The following cases outline the most common nursing malpractice fact patterns.

* Failure to Provide Physical Protection

The vast majority of reported nursing malpractice decisions involve a nurse's failure to follow basic precautions to ensure a patient's physical safety.[40] For example, a number of cases involve patients injured when a nurse does not provide appropriate safeguards. For example, in Veliz v. American Hospital, 414 So. 2d 226 (Fla. 3d DCA), review denied, 424 So. 2d 760 (1982), a nurse assisted a post-operative patient (the patient was under the influence of sedative medication) to the bathroom, where the nurse left the patient unattended.[41] While attempting to undress and wash, the patient became dizzy, fell, and injured her back on the bathtub.[42] This mishap could probably have been prevented if the nurse had either appointed a nurse's aide to assist and supervise the patient, or if the nurse had waited until a time when she could have supervised the patient.[43] Another example is improper use of restraints that results in serious injury. In Robison v. Faine, 525 So. 2d 903 (Fla. 3d DCA 1987), a private duty nurse was hired to provide "around-the-clock" nursing care for a patient on suicide precautions.[44] Prior to leaving on a lunch break, the nurse placed the patient in a restraining device that attached to the sides of the hospital bed.[45] The nurse did not secure the restraints properly and the patient was able to untie herself.[46] The patient made her way to the hospital roof, attempted to jump to a nearby tree and, upon falling to the ground, sustained serious injury.[47] This incident could have been prevented if the nurse had taken the time to properly tie the restraints, or if she was not sure how to do so, to request assistance.

* Failure to Monitor and/or Promptly Respond

A number of nursing malpractice cases involve injuries to patients resulting from a nurse's failure to adequately monitor a patient's condition. In Fincke v. Peeples, 476 So. 2d 1319 (Fla. 4th DCA 1985), review denied, 486 So. 2d 596 (Fla. 1986), a recovery room nurse was held liable for her failure to monitor and assess a patient's airway post-operatively.[48] The 17-year-old male patient was prematurely extubated following orthopedic surgery.[49] Because the nurse had to tend to another patient admitted to the recovery room after surgery, she could not provide constant monitoring to ensure that the 17-year-old was breathing on his own.[50] He stopped breathing and suffered severe brain damage.[51] In this case, the recovery room nurse had a duty to provide constant monitoring so long as the patient was in the recovery room and in need of such care.[52]

The fact that a nurse diligently monitors and assesses her patient's condition may not be enough if the patient's condition deteriorates and the nurse fails to take appropriate action. In Variety Children's Hospital v. Perkins, 382 So. 2d 331 (Fla. 3d DCA 1980), a hospital was found vicariously liable for the acts of its nurse employees who allegedly did not respond appropriately to a child's deteriorating post-operative condition.[53] The four-month-old child began to experience difficulty breathing shortly after his admission to the intensive care unit after surgery.[54] Over the next two hours, as the child's condition steadily worsened, the nurses and resident physicians failed to employ adequate medical procedures in light of the child's symptoms.[55] As a result, the child suffered a cardio-respiratory arrest and, during the several minutes it took for the hospital staff to resuscitate the child, he sustained devastating and irreversible brain damage.[56] Under these types of circumstances, a nurse has an affirmative duty to exercise her professional judgment to ensure that all adequate steps are taken to appropriately treat a patient's deteriorating condition.[57]

In a complex technological working environment, nurses must also be very familiar with the medical equipment available in their particular unit. If a nurse has the equipment available and does not know how to use it, she may be liable for malpractice or the hospital may be liable for negligence. In Mather v. Griffin Hospital, 540A.2d 666 (Conn. 1988), the Connecticut Supreme Court affirmed a $9-million damages award against a hospital for its nurse-employee's failure to assist in the resuscitation effort of a newborn infant.[58] The nurse apparently could not differentiate between different-sized endotracheal tubes and she did not know how to manipulate an ambu bag[59] or other resuscitative equipment.[60] As a result, the infant was severely asphyxiated and suffered brain damage.[61] In order to avoid these types of situations, nurses should request and receive extensive and continuous training in the safe and proper use of hospital equipment. This training should include regular drills in emergency resuscitative efforts so that nurses will be able to access and utilize the equipment under stressful conditions.

* Failure to Properly Administer Medications

A common area for potential nursing malpractice arises where a nurse fails to properly administer medication. Nurses are taught the "five rights" in nursing school--that they must give the right medication to the right patient in the right dose at the right time by the right method.[62] Malpractice may result when a nurse overlooks one of these "rights."

Nurses can be found negligent where they administer the wrong medication because they did not take adequate time to look closely at a medication label. In Habuda v. Trustees of Rex Hospital, Inc., 164 S.E. 2d 17 (N.C.App. 1968), a nurse gave an oral dose of PhisoHex antibacterial scrub instead of milk of magnesia.[63] The evidence showed that the two substances were virtually identical in appearance and were kept in close proximity in the hospital medical room.[64] The patient suffered from severe gastritis and esophagitis as a result of taking the PhisoHex, which is not meant to be ingested.[65] Obviously, this error could have been avoided if the nurse had more carefully read the labels. The error could also have been prevented if the hospital's policies provided for better labeling and storage of the mediations themselves.

Drugs must be administered in the proper manner in order to prevent serious injury to patients. For example, improper administration of intramuscular injections can lead to sciatic nerve injury due to the injection of medication too close to the sciatic nerve,[66] or to necrosis of surrounding subcutaneous tissue if the medication is not administered deeply into the muscle.[67]

A nurse who administers a medication pursuant to an incomplete or incorrect physician's order will not be shielded from liability. In Norton v. Argonaut Insurance Company, 144 So. 2d 249 (La. 1962), an assistant nursing director, who had not practiced in a clinical setting for several years, was filling in on an understaffed pediatric ward where she administered a fatal dose of a cardiac drug to a three-month-old child.[638] The physician had prescribed the drug in a certain amount, but he had failed to prescribe the manner of administration.[69] Given her lack of recent clinical experience, the nurse was unfamiliar with the drug and, rather than question the prescribing physician, she gave the drug by intramuscular injection.[70] The nurse was not aware that the drug was available in an oral form, i.e., the form the physician intended for administration.[71] The injectable form was a higher concentration than the oral form.[72] As a result, the child received a marked overdose of the medication and died.[73] The nurse was found negligent for administering a drug with which she was unfamiliar, and for failing to confirm the proper method of administration with the prescribing physician.[74] Although a nurse is professionally obligated to properly carry out physicians' orders, she may legally delay execution of that order until she is satisfied that the order is correct.[75] Furthermore, if, in the nurse's professional judgment, the order is incorrect or incomplete, she has the legal obligation to pursue the matter through her supervisor and/or hospital administration.

Nurses have an independent obligation to be knowledgeable about all the medications they administer, including side effects, dose ranges, and drug interactions.[76] As discussed, they may breach this obligation if they administer medications with which they are unfamiliar. In Campbell v. Preston, 379 S.W. 2d 557 (Mo. 1964), a nurse was ordered to assist an intern in administering a drug to a patient.[77] Neither the nurse nor the intern was aware that the drug was an anesthetic agent requiring the specialized knowledge, skill, and training of an anesthesiologist.[78] Immediately after the drug was administered and as a result thereof, the patient stopped breathing and suffered a cardiac arrest.[79] This example underscores the critical need for nurses to familiarize themselves with the medications they handle, even where these medications are prescribed by competent physicians. Because nurses dispense the majority of the medications prescribed in hospital settings, the nurse will often be the final check point to ensure that the patient is receiving the correct drug in the correct dose by the correct route.

Conclusion

Today, the nurse's role is difficult to define. Nursing responsibilities have increased greatly and so has the level of the professional nurse's accountability. As physicians depend more heavily on nursing assessment and professional judgment, as nurses become more specialized in their clinical practice, and as independent nurse practitioners become more widely utilized, the greater the potential for legal claims to be brought against professional nurses--and the greater the importance for nurses to comply with standards of care.

[1] See, e.g., Charles E. Rosenberg, The Care of Strangers, The Rise of America's Hospital System 231 (1987).

[2] Karen Markus, The Nurse as Patient Advocate: Is There a Conflict of Interest?, 29 Santa Clara L. Rev. 391 (1989).

[3] At least one court has recognized this increase in accountability when it stated that:

"The role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians' orders."

Bleiler v. Bodnar, 489 N.Y.S.2d 885, 889 (1985).

[4] Nursing has evolved from a profession that merely carried out physician's orders to one that assesses the patient's condition, makes judgments based upon that assessment, and acts according to professional judgment. See Fla. Stat. [sections] 464.003(3)(a) (Supp. 1994).

[5] Although an increasing number of nurses are men, 97 percent are women. Connie Lauerman, Saturday, Bloody Saturday, Chi. Trib., Dec. 10, 1989, [sections] 3 (Sunday Magazine), at C16. Throughout this article, the female pronoun is used when referring to nurses acknowledging that nursing is no longer a strictly female-oriented profession.

[6] Florida case law is used to provide examples of the most common types of nursing negligence scenarios. Where reported cases from other jurisdictions are more illustrative, they are cited to instead.

[7] Nicholson v. Good Samaritan Hosp., 199 So. 344, 346 (Fla. 1940) (providing synopsis of case law).

[3] Schloendorff v. Society of New York Hospital, 105 N.E. 92, at 97 (N.Y. 1914).

[9] Id.

[10] See generally Rosenberg, supra note 1 (the author discusses at length the evolution of the American hospital system).

[10] See, e.g., Wilson v. Lee Memorial Hosp., 65 So. 2d 40 (Fla. 1953).

[11] Carmen D. Rasmussen, Hospital Liability Related to Understaffing of Nursing Services: Walking the Fine Line Between Respondeat Superior and Corporate Negligence, 94 W. Va. L. Rev. 1083 (1992).

[13] "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement (Second) of Agency [sections] 219(1) (1957).

[14] "A master is a principle who employs another to perform a service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service." Restatement (Second) Agency [sections] 2(1) (1957).

[15] The Restatement of Agency provides that:

"(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right of control.

"(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

"(b) whether or not the one employed is engaged in a distinct occupation or business;

"(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

"(d) the skill required in the particular occupation;

"(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

"(f) the length of time for which the person is employed;

"(g) the method of payment, whether by the time or by the job;

"(h) whether or not the work is part of the regular business of the employer;

"(i) whether or not the parties believe they are creating the relation of master and servant; and

"(j) whether the principal is or is not in business."

Restatement (Second) Agency [sections] 220 (1957).

[16] J. Scott Coalter, The Vicarious Liability of a Physician for the Negligence of Other Medical Professionals--North Carolina Charts a Middle Course--The Effect of Harris v. Miller, 17 Campbell L. Rev. 375, 381 (1995).

[17] 70 C.J.S. Physicians and Surgeons [sections] 85 (1987).

[18] See, e.g., Folta v. Bolton, 493 So. 2d 440, 441 n.1 (Fla. 1986).

[19] Barbara C. Horwitz, The Nurse as Defendant, TRIAL LAW. 39, 40 (Sept. 1991).

[20] "Although the duties of an assisting nurse involving professional skill are generally regarded as controlled by the surgeon, when the nurse's services are simply ministerial in character, she is not regarded as the doctor's borrowed servant, but rather as the servant of the hospital, so that the latter may be vicariously liable to the patient." Beaches Hosp. v. Lee, 384 So. 2d 234, 237 (Fla. 1st D.C.A.), review denied, 392 So. 2d 1371 (1980).

[21] See Coalter, supra note 16, at 382.

[22] Restatement (Second) of Agency [sections] 227 (1957).

[23] See,, e.g., Hudmon v. Martin, 315 So. 2d 516, 517 (Fla. 1st D.C.A. 1975) (appellate court affirmed trial court's finding that a nurse who is employed by a hospital, but who is assigned to assist a doctor in performance of an operation and is therefore under control of the doctor, is a borrowed servant for whose negligent acts the doctor is responsible). But see Buzan v. Mercy Hosp., Inc., 203 So. 2d 11, 13-14(Fla. 3d D.C.A. 1967) (appellate court reversed trial court's entry of summary judgment for hospital; hospital nurse performing purely ministerial functions, such as sponge count, is considered borrowed servant of hospital).

[24] Coalter, supra note 16, at 383. But see Fortson v. McNamara, 508 So. 2d 35 (Fla. 2d D.C.A. 1987) (court held that a nurse anesthetist, who had special training and was board certified to administer anesthesia, was not a borrowed servant of the surgeon but was independently liable for alleged negligence).

[25] Hudmon v. Martin, 315 So. 2d 516 (Fla. 1st D.C.A. 1975). But see Buzan v. Mercy Hosp., Inc., 203 So. 2d 11 (Fla. 3d D.C.A. 1967) (in a case where a patient complains of malpractice after a surgical sponge is left in her wound, the court held that the scrub nurse responsible for the sponge count would more likely be considered a servant of the hospital, rather than a borrowed servant of the operating room surgeon).

[26] The captain-of-the-ship doctrine was first described in McConnell v. Williams, 65 A.2d 243 (Pa. 1949). In McConnell, the Pennsylvania Supreme Court stated that "[i]n the course of an operation in the operating room of a hospital and until the surgeon leaves that room at the conclusion of the operation . . . he is in the same complete charge of those who are present and assisting him as the captain of a ship over all on board ...." Id. at 246.

[27] Coalter, supra note 16, at 385.

[28] See, e.g., Hudmon v. Martin, 315 So. 2d 516 (Fla. 1st D.C.A. 1975), Buzan v. Mercy Hosp., Inc., 203 So. 2d 11 (Fla. 3d D.C.A. 1967).

[29] Coalter, supra note 16, at 385.

[30] Horwitz, supra note 19, at 40.

[31] Janine Fiesta, The Law and Liability: A Guide for Nurses 22 (2d ed. 1988). One court criticized the doctrine and stated that:

"A theory that the surgeon directly controls all activities of whatever nature in the operating room certainly is not realistic in present day medical care. Today's hospitals hire, fire, train and provide day-to-day supervision of their nurse employees. Fortunately, hospitals can and do implement standards and regulations governing good surgery practices and techniques and are in the best position to enforce compliance; ...." Truhitte v. French Hosp., 180 Cal. Rptr. 152, 160 (Cal. Ct. App. 1982).

[32] Insinga v. LaBelle, 543 So. 2d 209 (Fla. 1989).

[33] Id. at 213. Specifically, the court stated that:

"The public policy which justifies placing the expanded responsibility and duty of care on a hospital is based on the present day view that a hospital is a multifaceted health care facility that should be responsible for proper medical treatment on its premises. This view is justified because the hospital is in a superior position to supervise and monitor physician performance and is, consequently, the only entity that can realistically provide quality control."

Id. at 214.

[34] The court recognized, however, that this liability will extend only to the physician's conduct while rendering treatment to patients in the hospital. Id. The hospital will not be responsible for a physician's conduct beyond the hospital premises. Id.

[35] See, e.g., Rasmussen, supra note 12 at 1083.

[36] Drew v. Knowles, 511 So. 2d 393,396 (Fla. 2d D.C.A. 1987).

[37] Akins v. Hudson Pulp & Paper Co., 330 So. 2d 757 758 (Fla. 1st D.C.A. 1976), cert. denied, 344 So. 2d 323 (Flat 1977). Some states have rejected a fixed locality rule for nurses, opting instead for a national standard of care. See Victoria L. Miller, Court Rejects Fixed Locality Rule for Nurses, Adopts National Standard of Care, 46 S.C. L. REV. 177 (1994).

[33] Drew, 511 So. 2d at 396; Akins, 330 So. 2d at 758.

[39] Drew, 511 So. 2d at 396.

[40] Horwitz, supra note 19, at 41.

[41] Veliz v. American Hospital, 414 So. 2d 226, at 227 (Fla. 3d D.C.A.), review denied, 424 So. 2d 760 (1982).

[42] Id. At trial, the jury returned a verdict for the hospital. The appellate court found that the trial court had erred in its instructions and reversed and remanded for a new trial. Id. at 228.

[43] See also Garofalo v. Community Hosp. of So. Broward, 382 So. 2d 722 (Fla. 4th D.C.A. 1980) (patient allegedly fell and was injured in her room due to nurse's failure to timely respond to patient call light); Hialeah Hosp., Inc. v. Johnson, 268 So. 2d 424 (Fla. 3d D.C.A. 1972), cert. denied, 276 So. 2d 53 (1973) (paralyzed patient who was left alone with her legs dangling off the side of bed, fell and sustained severe fracture of her leg); Cavenaugh v. South Broward Hosp. Dist., 247 So. 2d 769 (Fla. 4th D.C.A. 1971) (patient was left on a stretcher in an unattended holding room in emergency department of hospital for approximately two hours and, while attempting to go to the bathroom, fell from the stretcher and broke her hip); Strickland v. Bradford County Hosp. Corp., 196 So. 2d 765 (Fla. 1st D.C.A. 1967) (elderly patient who was sedated after admission to hospital fell off side of bed and fractured her hip; side rail on one side of bed was not left in locked and upright position); Mercy Hosp., Inc. v. Larkins, 174 So. 2d 408 (Fla. 3d D.C.A. 1965) (patient admitted for monitoring of dizzy spells fell while attempting to go to the bathroom without assistance).

[44] Robinson v. Faine, 525 So. 2d 903, at 905 (Fla. 3d D.C.A. 1987).

[45] Id.

[46] Id.

[47] Id. In this case, the trial court entered a directed verdict for the nurse on plaintiff's claim of negligent care. The appellate court held that the trial court employed the wrong standard for a directed verdict, and it therefore reversed and remanded for a new trial. Id. at 907.

[49] Fincke v. Peeples, 476 So. 2d 1319, at 1321 (Fla. 4th D.C.A. 1985), review denied, 486 So. 2d 596 (Fla. 1986).

[49] Id. at 1320.

[50] Id. at 1321.

[51] Id.

[52] In some circumstances, a hospital's staffing policy may prevent a nurse from adequately and safely performing her monitoring duties. Where a nurse is assigned too many patients and is unable to provide the necessary level of care--taking into account the patients' needs for close monitoring--she is under an ethical and legal obligation to report the staffing problem to her immediate supervisor and/or to hospital administration.

[53] Variety Children's Hospital v. Perkins, 382 So. 2d 331, at 333 (Fla. 3d D.C.A. 1980).

[54] Id.

[55] Id.

[56] Id.

[57] See also Darling v. Charleston Community Memorial Hosp., 211 N.E. 2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 (1966) (nurses failed to report the deteriorating condition of a casted leg to other than the treating physician; the young man ended up having the leg amputated); Goff v. Doctor's Gen. Hosp., 333 P.2d 29 (Cal. 1958) (a nurse failed to pursue administrative channels when a doctor failed to come to attend to a hemorrhaging obstetrical patient after several calls from the nurse).

[58] Mather v. Griffin Hospital, 540 A.2d 666, at 668 (Conn. 1988).

[59] An "ambu bag" is a type of oxygen delivery device commonly used in artificial resuscitative efforts.

[60] Mather v. Griffin Hospital, 540 A.2d 666.

[61] Id. at 668-69.

[62] Horwitz, supra note 19, at 41.

[63] Habuda v. Trustees of Rex Hospital, Inc., 164 S.E. 2d 17, at 20 (N.C. App. 1968).

[64] Id.

[65] Id.

[66] See Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981) (case in which a patient alleged that a nurse negligently administered an intramuscular injection thereby causing the patient injury, was dismissed by the court as barred by the statute of limitations).

[67] Barnes v. St. Francis Hosp. and Sch. of Nursing, Inc., 507 P.2d 288 (Kan. 1973).

[68] Norton v. Argonaut Insurance Company, 144 So. 2d 249, at 255-56 (La. 1962).

[69] Id. at 253.

[70] Id. at 255.

[71] Id. at 255-56.

[72] Id.

[73] Id.

[74] Id. at 260.

[75] Kileen v. Reinhardt, 419 N.Y.S. 2d 175 (N.Y. App. Div. 1979). "The law is clear that a hospital is protected from liability when it follows the direct and explicit orders of the attending physician unless its staff knows that the doctor's orders are `so clearly contraindicated by normal practice that ordinary prudence requires inquiry into [their] correctness.'" Id. at 177 (citation omitted).

[76] Horwitz, supra note 19, at 43.

[77] Campbell v. Preston, 379 S.W. 2d 557, at 561 (Mo. 1964).

[78] Id.

[79] Id.

Marjorie C. Makar is an attorney at Smith Hulsey & Busey in Jacksonville, whose practice includes medical malpractice litigation and health law. She received her J.D. with high honors from Florida State University in 1992, and her B.S.N. with high honors from the University of Florida in 1984. Prior to law school, Ms. Makar worked as a registered nurse at Shands Teaching Hospital in Gainesville, and at Henrietta Egleston Children's Hospital in Atlanta, Georgia. Ms. Makar clerked for Judge Wm. Terrell Hodges, U.S. District Court for the Middle District of Florida, in 1992-94.