EMAIL TO A FRIEND COMMENT

 

No Duty of Physician To Consult Nurse on Per-Prescription Basis; Patient Harms Children


A man was a patient under the care of a nurse practitioner. The nurse practitioner prescribed the man at least six medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone. While under the influence of those medications, the man shot and killed his wife. The man went to prison on a guilty plea to the charge of aggravated murder. This left their two minor children essentially parentless.

 

The children, through their conservator, sued the nurse practitioner and her consulting physician for negligence in the prescription of the medications that caused the man's violent outburst and his wife's death. In a different appeal, the Supreme Court of Utah held that the nurse practitioner had a duty of reasonableness in her affirmative acts of prescribing medication to the father and that that duty extended to third parties who might be injured as a foreseeable result of her negligence. The children subsequently entered into a voluntary settlement with the nurse practitioner.

 

The claims against the consulting physician remained. The nurse practitioner had statutory authority to prescribe controlled substances so long as she did so “in accordance with a consultation and referral plan.” Utah Code § 58–31b–102(13)(c)(iii). The statute defines “consultation and referral plan” is a written plan jointly developed by an advanced practice registered nurse and a consulting physician that permits the advanced practice registered nurse to prescribe schedule II–III controlled substances in consultation with the consulting physician. The complaint alleged that the physician agreed to be the nurse practitioner's consulting physician. But it also asserted that “no consultation plan existed” and that the nurse practitioner had prescribed and then increased dosages of various schedule II and III controlled substances to the father without ever consulting with her consulting physician. The complaint alleged negligence on the consulting physician's part in not affirmatively reaching out to the nurse practitioner to discuss her treatment decisions regarding the man's care. The complaint argued that the Utah Nurse Practice Act, Utah Code §§ 58–31b–101 to –802, imposed a duty on the nurse practitioner’s consulting physician to consult directly with the nurse practitioner as a precondition to any individual prescription of controlled substances for the father. The Salt Lake City District Court in the 3rd Judicial District dismissed the children's claim against the physician, concluding that the physician had no statutory special relationship with the children and thus no duty in a case charging him with nonfeasance.

 

The Supreme Court of Utah affirmed. The court held that the Nurse Practice Act did not establish a duty for the consulting physician to consult on an individual, prescription-by-prescription basis with the nurse in her individual prescriptions of controlled substances for the children’s father.

 

The Nurse Practice Act did not establish a duty for the consulting physician to consult on an individual, prescription-by-prescription basis with the nurse in her individual prescriptions of controlled substances for the children’s father. Nurse Practice Act was aimed at nurse practitioners, not physicians. The court reasoned that a physician would be unlikely to view this statute as the place to find the legal duties of a doctor, particularly where such duties were set forth comprehensively in code provisions aimed specifically at doctors. The Nurse Practice Act nowhere addressed the specific duty—of consultation on a prescription-by-prescription basis—asserted by the plaintiffs. To the contrary, the statute generally acknowledged the prerogative of a licensed nurse practitioner to prescribe and administer “schedule II–III controlled substances,” at least so long as it was “in accordance with a consultation and referral plan.” The court read the statute as placing the onus on the nurse practitioner to seek consultation with the physician and authorizing a prescription by such a nurse practitioner “in accordance with a consultation and referral plan.” A “consultation and referral plan,” moreover, was not defined in terms requiring the physician to supervise or consult on individual prescriptions. Instead such a plan was simply a “written plan jointly developed by an advanced practice registered nurse and a consulting physician that permits the advanced practice registered nurse to prescribe schedule II–III controlled substances in consultation with the consulting physician.” The court interpreted the reference to “consultation with the consulting physician” as imposing an obligation on the nurse practitioner because the act was aimed at nurse practitioners and the generally understanding of the term “consult” implies that consultation occurs at the insistence of the one seeking counsel. The court reasoned that if individualized consultation was required as to each prescription, no “consultation and referral plan” would have been needed.

 

The Supreme Court of Utah affirmed the trial court’s dismissal of the children’s claims against the physician.

 

See: B.R. v. Rodier, 2015 WL 122251, 2015 UT 1 (Utah, January 9, 2015) (not designated for publication).

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians

 

See also Medical Law Perspectives, December 2014 Report: Beyond the Holiday Blues: When Depression Leads to Liability

 

 

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