Medical Malpractice: Spiderman & Nurses - With Great Power Comes Great Responsibility
Updated: Nov 18, 2022
During the depths of COVID it was said again and again that nurses were, like Spiderman, superheroes. That was, and is, a true statement. That fact was also recently recognized by the North Carolina Supreme Court in Connette for Gullatte v. Charlotte-Mecklenburg Hospital Authority, 2022-NCSC-95, 876 S.E.2d 420. In that case, much like Spiderman's Uncle Ben did for him, the Court reminded nurses that, with great power comes great responsibility.
Connette is a tragic case of a three year old child who went into cardiac arrest while undergoing an ablation procedure to treat her cardiomyopathy. The procedure called for general anesthesia, which was administered by an anesthesiologist and a certified registered nurse anesthetist (CRNA). Prior to administration, the anesthesiologist and the CRNA collaborated on the anesthesia plan and concluded that it was appropriate to utilize a mask to administer the anesthetic sevoflurane. According to the plaintiff's expert, that decision caused the child to go into cardiac arrest, which in turn resulted in oxygen deprivation, brain damage, cerebral palsy, and profound developmental delays. According to the expert, the standard of care required an intravenous method of anesthesia rather than administering anesthesia through a mask.
When the plaintiff attempted to present their expert at trial, the trial court concluded that the testimony was inadmissible based on a 2006 Court of Appeals decision which was itself rooted in the North Carolina Supreme Court's eighty-year old holding in Byrd v. Marion General Hospital, 202 N.C. 337 (1932). Byrd held that a nurse could be liable for how they executed their duties while outside the supervision of a physician, but they could not be held liable for what the nurse did so long as they were executing the orders of the physician. In essence, they could rely on the Nuremberg Defense that they were just following orders. Based on that precedent, the trial court refused to let the plaintiff present evidence that the CRNA was liable for his role in concurring with the anesthesiologist that mask-induced anesthesia was appropriate. As a result, the jury returned a verdict in favor of the CRNA. The plaintiff appealed, and the Court of Appeals affirmed the trial court's ruling. In doing so, the Court of Appeals recognized that Byrd was decided at a time where nurses held a much different role than they do in modern times, but they did not have the authority to overrule a decision of the North Carolina Supreme Court.
The Supreme Court, however, has the authority to overrule itself, and, in a very thoughtful opinion by Justice Morgan, it did just that. The Court's opinion relied on the changing role of nurses, the changing extent of regulation over the nursing profession, and the realities of modern medical practice. The Court observed that when Byrd was decided a "nurse" was just someone who worked in a doctor's office, and they did not need any specific education, training or certification. By contrast, since 1965 all nurses must be licensed by the North Carolina Board of Nursing and only upon meeting the requisite educational requirements. The Legislature had also defined the practice of nursing to include:
a. Assessing the patient's physical and mental health, including the patient's reaction to illnesses and treatment regimens.
b. Recording and reporting the results of the nursing assessment.
c. Planning, initiating, delivering, and evaluating appropriate nursing acts.
d. Teaching, assigning, delegating to or supervising other personnel in implementing the treatment regimen.
e. Collaborating with other health care providers in determining the appropriate health care for a patient but, subject to the provisions of G.S. 90-18.2, not prescribing a medical treatment regimen or making a medical diagnosis, except under supervision of a licensed physician.
f. Implementing the treatment and pharmaceutical regimen prescribed by any person authorized by State law to prescribe the regimen.
g. Providing teaching and counseling about the patient's health.
h. Reporting and recording the plan for care, nursing care given, and the patient's response to that care.
i. Supervising, teaching, and evaluating those who perform or are preparing to perform nursing functions and administering nursing programs and nursing services.
j. Providing for the maintenance of safe and effective nursing care, whether rendered directly or indirectly.
N.C. Gen. Stat. § 90-171.20(7) (2021). Nurses also now possess specialized roles including CRNAs, certified nurse midwives, clinical nurse specialists, and nurse practitioners. The Court acknowledged that, although nurses are still required to practice under the supervision of a physician, it had become "apparent that the independent status, the professional stature, the individual medical determinations, and the shared responsibilities with a supervising physician have grown in significance and in official recognition since Byrd...." These modern roles and duties, along with the applicable regulations, show that nurses are authorized and expected to collaborate with physicians and not just obey.
As a result, the Supreme Court overruled its prior holding in Byrd, reversed and remanded the lower courts' decisions, and held that "even in circumstances where a registered nurse is discharging duties and responsibilities under the supervision of a physician, a nurse may be held liable for negligence and for medical malpractice in the event that the registered nurse is found to have breached the applicable professional standard of care." In doing so it, knowingly or unknowingly, paraphrased Peter Parker's Uncle Ben and stated the "defendant CRNA in the instant case is a beneficiary of these heightened responsibilities which have been accorded to registered nurses and, with these heightened powers and the autonomy recognized by law, come heightened responsibilities recognized by law." In other words, with great power, comes great responsibility.