Consider a scenario whereby an attending physician gives orders to a nursing staff to monitor a patient and report to the physician any changes in the patient’s condition. Despite the nursing staff’s constant monitoring, quick reporting to the attending physician, and implementation of further physician-guided treatment, the patient takes a turn for the worse. Will a lawyer be able to point the finger at those nurses and say they owed an independent duty to do more than what they were ordered to do by the doctor? The current law in Nebraska holds that the staff does not owe such a duty.
But consider next, when a nurse anesthetist consults with an anesthesiologist for a procedure, advises the physician, and agrees with the physician’s ultimate course of treatment, is there an independent duty assigned to the nurse anesthetist – even though the ultimate decision lies with the doctor? The Supreme Court of North Carolina overturned longstanding precedent in that state to say, yes, an independent duty exists.
The long-held rule in Nebraska is that hospital staff members, generally, “lack authority to alter or depart from an attending physician’s order for a hospital patient and lack authority to determine what is a proper course of medical treatment for a hospitalized patient.” Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 13, 459 N.W.2d 178, 183 (1990). However, states have begun to examine precedent of similar ilk.
An August 2022 opinion from North Carolina addresses the existence of a duty of hospital staff that goes beyond following the orders of a physician. In Connette v. Charlotte-Mecklenburg Hosp. Auth., North Carolina abandoned similar precedent to that in Nebraska. 2022 N.C. LEXIS 781, **28-31. The Connette Court held that the practice of medicine has evolved and now recognizes the increased specialization and independence of nurses in the treatment of patients. Nurses (at least nurse anesthetists), the Court reasoned, should thus be treated as professionals in their own right and owe professional duty of care separate and distinct from merely following the orders of the attending physician.
The Connette holding will have a meaningful impact on litigation in North Carolina, and the prospect of other states following suit is likely to impact medical malpractice litigation around the country, including in Nebraska. Should Nebraska revisit its prior guidance on the duty owed by hospital staff in similar situations, the result may well be an increase in litigation involving hospital staff for acts or omissions that were previously precluded.