Maryland Lawyer Blog

I have seen the transcripts of many nurses stating in deposition or on the witness stand, “I don’t diagnose.” While it is true that nurses are not authorized to make medical diagnoses, what is the nurse’s responsibility if an obvious symptom goes unnoticed or unheeded and the doctor fails to timely diagnose and treat the condition, resulting in catastrophic injury or death?

Case in point: A young man in his mid twenties goes to his gym and performs some heavy exercises with his legs. He does not experience any trauma other than a slight twisting of his ankle in the locker room, but when he arrives home he notices that his ankle swelled like a balloon. He goes to the local emergency room and after the triage nurse sees him, the E.R. doctor examines the patient and sends him home with an ace bandage and instructions to use an ice pack for the next twenty-four hours followed by warm soaks. The last person to treat the patient is one of the emergency room nurses.

Subsequently, the pain increases in intensity over the next three days with swelling over the entire leg causing this poor fellow to go to another emergency room where the doctor immediately calls in an orthopedic consult, whose diagnosis after an x-ray is compartment syndrome. By this time, the damage is so extensive, that there is permanent loss of function and disfigurement that patient could have avoided with earlier treatment.

Of course, the plaintiff’s lawyer has no problem bringing a lawsuit against the emergency physician group that first treated this patient. However, the hospital’s culpability is confined to the question of nursing liability because the physician is an independent contractor or an employee of a contracting entity and the nurses are employees. Thus we have the question, “What is the nursing liability in this scenario?” After all, state laws do not empower nurses to make medical diagnoses unless the nurse qualifies as a nurse practitioner. Thus the obvious defense is, “The doctor made a diagnosis and gave orders to discharge the patient and provide treatment with instructions. Isn’t the nurse obligated to defer to the doctor’s opinion if there is a disagreement?

The answer lies in the relationship between the medical practitioner and the nurse being collaborative. In other words, the nurse is expected to know whether the patient is receiving competent medical treatment and owes a duty to contribute to the doctor’s diagnosis by making an independent nursing diagnosis and relaying his or her findings to the doctor. Moreover, when the diagnosis and prescription are clearly detrimental to the patient’s safety and well-being, the nurse owes a duty to question the doctor’s orders and refuse to follow them if need be and notify the nursing supervisor. These are all reasonable actions within the nurse’s power and authority.

In the case of the young man with compartment syndrome, the disparity between the level of trauma and the swelling was a clear red flag; the patient needed further orthopedic evaluation. Therefore, while the nurse was not empowered to change the prescribed medical regiment, he or she should have insisted upon an orthopedic evaluation and was duty-bound to express that concern to the doctor, the nursing supervisor and the patient or family member. The failure on the part of the nurse to take such action was a clear departure from good and accepted standards of nursing practice.