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Surgeon & nurses falsified cause of death.

CASE ON POINT: Thomas v. The Hosp. Bd. of Dirs. of Lee County, 2D08-1561 FLCA2(5/7/2010)-FL

ISSUE: What is more egregious that a surgeon and nurses entering into a conspiracy to fake the cause of a surgical patient's death? Even when death was caused by an overdose of meds?

CASE FACTS: On March 6 1997, Mildred Thomas died at Lee Memorial Hospital after having hip surgery and going into cardiac arrest. Purportedly, following the surgery, Mildred's heartbeat and blood pressure increased, and Dr. Kenneth Backstrand and Nurse Clara Hughes injected Mildred with Esmoiol, which is commonly used to treat the conditions exhibited by Mildred. However, in doing so, they purportedly gave her a lethal overdose that ultimately led to her going into cardiac arrest. Subsequently, Dr. Backstrand, Nurse Hughes, and Nurse Jeanie Smith purportedly agreed to conceal the real cause of Mildred's death and to instead notify her family that she died from the "stress of surgery." Dr. Backstrand, Nurses Hughes and Smith listed the same cause of death in computer records, in the report to the medical examiner, and in discussions with other physicians. Dr. Robert Arnall, Nurse Jackson, and Robert McCurdy, the hospital's attorney, later learned of the real cause of Mildred's death through the hospital's incident reporting procedure, but they failed to disclose it. Based on the report listing the cause of death as resulting from "natural causes," the medical examiner did not conduct a complete autopsy, and Mildred's body was released to her family for burial. On March 11, 1997, during Mildred's funeral, Mildred's daughter, Lucy Thomas, received a phone call from Mr. McCurdy and the medical examiner; the medical examiner demanded that Mildred's body be returned to him immediately for a second autopsy. This demand was made after the medical examiner learned of the real cause of Mildred's death. After the second autopsy was completed, the medical examiner attributed the death to Esmoiol toxicity. In 1998, Lucy Thomas filed suit alleging: (1) wrongful death by medical malpractice against both Dr. Backstrand and the hospital: (2) breach of contract of care by the hospital, Dr. Backstrand, and Nurse Hughes; (3) mishandling of a dead body; (4) outrage (intentional infliction of emotional distress); (5) invasion of privacy; and (6) intentional misrepresentation. The Hospital and Dr. Backstrand filed a motion for partial summary judgment. The trial court entered an order for the defendants on their motion for partial summary judgment. The plaintiff appealed.

COURT'S OPINION: The Florida Court of Appeals found that the trial court erred when it granted partial final summary judgment on the intentional misrepresentation claim and when it dismissed the claim for outrage (intentional infliction of emotional distress). However, the court affirmed the dismissal of the plaintiffs' claims for mishandling of a dead body and invasion of privacy, and dismissed that portion of the plaintiff's appeal addressing the order denying the motion for leave to amend. Accordingly, the case was affirmed in part, dismissed in part, reversed in part, and remanded back to the trial court.

LEGAL COMMENTARY: The court held that under the facts of the case Lucy Thomas sufficiently pleaded the elements of a cause of action for outrage (intentional infliction of emotional distress) as defined by Florida case law. The court was convinced that the defendants' conduct in making false statements-which led to the interruption of the decedent's funeral and the return of her body for a second, more thorough, autopsy-rose to the level of atrocious and utterly intolerable behavior which cannot be condoned in a civilized society. The court was rightfully impressed with the fact that in a situation in which a person's loved one has died, it had to be apparent to anyone that the person would be susceptible to emotional distress and, therefore, the act of providing false information concerning the decedent's cause of death met the standard for a claim of outrage. The court therefore reversed the trial court's order dismissing the plaintiff's claim of outrage.

Editor's Note: Although the court in its opinion failed to go into detail regarding what was, for all intents and purposes, a conspiracy, we would be remiss if we failed to draw attention to the fact that Dr. Backstrand and the nurses involved in the cover-up of the true cause of Mildred Thomas' death may, in fact, have been guilty of the crime of conspiracy. At the very least their conduct both as individuals, as well as co-conspirators to fake the cause of death, which was determined to be at their hands in administering the overdose of the drug that caused the patient's death, is the ultimate violation of the both the duty and responsibility of the nurses (not to mention the good doctor). Again, the court failed to even allude to what sanctions the nurses were subjected to. Hopefully, they received sanctions corresponding to the egregiousness of their conduct!
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Title Annotation:Nursing Law Case of the Month
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:May 1, 2010
Previous Article:Defendants' judgment reversed: plaintiff's experts to testify.
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