October 1999

  The nurse was negligent, and the health plan can be sued as her employer for the patient’s wrongful death. UNITED STATES DISTRICT COURT, ILLINOIS, 1999.

   The surviving spouse of a forty-two year-old health plan member sued the health plan for the negligence of the plan’s telephone advisory nurse.

   The deceased began experiencing symptoms which included feeling agitated and upset, nausea, and an urgent need, but inability, to vomit, as the court phrased it for the record.

   The deceased’s health insurance contract required him to contact the plan at a specified phone number and speak with an advisory nurse prior to seeking any medical attention.

   The widow said in her lawsuit she phoned at 10:55 p.m., related all the symptoms, informed the nurse about the history of heart trouble in her husband’s family and expressly told the nurse she wanted to make sure he was not having a heart attack.

   The nurse told the wife her husband’s symptoms were probably due to excess stomach acid and reassured her he should be fine.

   The wife called back and spoke with the same nurse at 11:34 p.m. The wife expressed concern that the symptoms were continuing and now he was having pain in the middle of his chest.

   This time the nurse told the wife to have him sit at a 40^o angle and drink some milk, which would allow the stomach acids to recede and reduce his discomfort. The nurse again said he would be fine in the morning.

   According to the court record, the nurse explicitly advised the wife her husband did not need to go to an emergency room.

   At 11:55 p.m. the wife decided to get him into the car and go to an emergency room anyway. He became non-responsive en route. When she got him to a hospital at 12:05 a.m. resuscitation was attempted but was unsuccessful, and he was pronounced at 12:29 a.m.

   The cause of death was determined on autopsy to have been acute myocardial infarction.

   The widow’s civil lawsuit alleged negligence against the advisory nurse, in that she undertook to render a medical diagnosis of the deceased’s condition without being trained, qualified or licensed to practice medicine and failed to instruct the deceased to seek immediate medical attention at a hospital emergency room.

   The lawsuit also attempted to fault the health insurance plan for requiring its beneficiaries to submit to a medical diagnosis by an advisory nurse before seeking emergency medical care.

   The U.S. District Court for the Central District of Illinois determined the nurse was liable for negligence, ruled her employer was responsible for her negligence and threw out the plan’s legal challenges to the widow’s lawsuit.

   The health plan had challenged the lawsuit under the Employee Retirement Income Security Act of 1974 (ERISA), which limits to some extent the ability of health plan beneficiaries to sue their health plans.

   The health insurance plan’s strategy to defend the suit was to remove it from state court to Federal court, where a large insurance corporation presumably would get more favorable treatment, then argue that the only allegations permissible against a health plan are those contemplated by ERISA, which do not include claims for medical negligence.

   The court ruled the widow’s allegation of fault against the plan for requiring beneficiaries first to phone an advisory nurse was essentially a benefits allocation decision and was not something for which the widow could sue. The court allowed her to drop that allegation from her lawsuit rather than the court having to dismiss it as improperly filed in the first place.

   However, the rest of the widow’s lawsuit was on solid legal ground. And the court ruled the case belonged in the local county circuit court in front of a home-town jury where the widow presumably would receive a much more sympathetic hearing than in Federal District Court.

   The court contrasted this case with one from the Seventh Circuit Court of Appeals in 1996. There a nurse, acting as utilization review coordinator for a health maintenance organization, was exonerated under ERISA’s language from civil liability in a patient’s lawsuit. That patient sued because the nurse refused to authorize physical therapy after knee replacement surgery. The patient claimed it was necessary because the patient was dissatisfied with the result, but the nurse decided it was unnecessary and therefore not an allowable benefit under the plan. The court said ERISA in this situation dictated the nurse could not be sued, because she was making a benefits allocation decision and was not participating directly in the patient’s diagnosis or care.

   The court pointed to an unpublished 1999 Federal District Court decision from Texas which ruled a lawsuit against a nurse for sub-standard care is not restricted by ERISA. The quality of the nurse’s direct patient care was the legal issue in that case, not whether the health plan erroneously withheld benefits due to the patient as a plan beneficiary. Crum v. Hospital, 47 F. Supp. 2d 1013 (C.D. Ill., 1999).