Legal Eagle Eye Newsletter for the Nursing Profession(4)3 Dec 95    PDF Version

   Quick Summary: Nurses have the legal right to complain when physicians fail to document patients’ charts properly to permit nurses to formulate correct care plans.

   Failure of a physician to document patients’ charts properly and/or failure to obtain informed consent prior to invasive procedures is a violation of various laws and administrative rules and regulations.

   An employer may not take retaliatory action against an employee who objects to or who refuses to take part in any activity, policy or practice which constitutes an actual violation of law, rules or regulations.

   An employer may not take retaliatory personnel action against an employee because the employee discloses, or threatens to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer that is in violation of a law, rule or regulation, if the violation creates and presents a substantial and specific danger to the public health or safety.  NEW YORK SUPREME COURT, APPELLATE DIVISION, 1995.

   A nurse employed by a hospital as vice president for nursing received complaints from staff nurses that bronchoscopic procedures were not   being performed by a staff physician. Assuming, however, the procedures were being done, surgical consents were not being obtained, nor were proper post-op physician’s notes being written. She relayed these concerns to the director of medicine. Meetings of the physicians’ governing board at the hospital considered the allegations. Instead of corrective action against the physician involved, a decision was made to terminate the vice president for nursing.

   The New York Supreme Court, Appellate Division, upheld a substantial award of damages for the nurse for past lost salary and benefits, as well as full compensation for the fees of the attorneys who represented her in the suit. In addition, the hospital was ordered by the court to reinstate the nurse to her former position as vice president for nursing. Since she was to be reinstated, the court did not award damages for future loss of salary and benefits.

   State law protects "whistleblowers" from retaliatory employer conduct. The court accepted testimony of several nurses and a physician that brochoscopic procedures can be hazardous to patients, and thus require informed consent signed by the patient, as well as proper chart documentation for post-operative nurses to care for the patient. Failure of the physician to get informed consent and to document the chart violates the law and creates a substantial and specific danger to the public health and safety. Nurses’ complaints over these issues are protected by the state "whistleblower" law. The employer cannot take retaliatory action under these circumstances, without facing liability in a lawsuit by a nurse subjected to retaliatory action. Kraus vs. New Rochelle Hospital Medical Center, 628 N.Y.S. 2d 361 (N.Y. App., 1995).

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