Legal Eagle Eye Newsletter for the Nursing Profession (7)2 Feb 99


Quick Summary: A nursing home resident can sue for not getting medications a nurse is diverting to his or her own use.  The facts of this case did not support the resident’s family’s lawsuit.

   But it is an open possibility for another patient to sue, if the facts support a finding of negligent supervision of a nurse who is diverting narcotics and a finding that the patient’s discomfort was exacerbated by not getting prescribed pain medication because a nurse was improperly diverting it.   COURT OF APPEALS OF TEXAS, 1998.

   As a general rule, a healthcare facility has to supervise its nurses to prevent narcotics diversion, the Court of Appeals of Texas observed.

   Nevertheless, the court threw out a deceased nursing home resident’s family’s lawsuit which sought damages because the resident was allegedly denied pain medication the nurse was diverting to support her own addiction.

   The court believed the nursing home’s nursing manager and the nurse’s co-workers genuinely did not have grounds to suspect the nurse in question was addicted to narcotics or was diverting narcotics on the job before that was discovered after the resident’s death.

   The court also said there was no evidence the nurse actually withheld medication from the resident who was suffering from terminal cancer. That was not to be assumed, but had to be proven for a case of this nature to succeed against a nursing home, the court ruled. Continued Care, Inc. v. Fournet, 979 S.W.2d 419 (Tex. App., 1998).