An appellate court in Colorado addressed a novel question: can a pattern jury instruction on judgment calls that usually only applies to doctors be expanded to include nurses. The trial court instructed the jury that, “A physician or nurse does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent. An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent.” The Colorado Jury Instruction does not include the phrase, “or nurse.”
In this case involving emergency room nurses and a doctor’s failure to diagnose a patient’s impending cerebral vascular accident (CVA), it would seem like a fairly straightforward analogy between doctors and nurses. Both types of healthcare professionals failed to diagnose the impending CVA or order CTs or MRIs that might have caught it before injury occurred.
However, the appellate court in Colorado found no cases addressing the extension of the professional judgment jury instruction to nurses. At best, the court found that the language in the Colorado Jury Instructions supported extending the current instruction to healthcare professionals other than physicians. To find the definition of healthcare professionals, the appellate court found only one Colorado case and several statutes that classified nurses as medical professionals. The court held that the trial court acted within its discretion when it instructed the jury that an exercise of judgment that resulted in a unsuccessful outcome does not by itself mean that a physician or nurse was negligent.
Notably, the court left open the possibility that a fact-based argument could have been raised by either party and would have been determinative. The appellate court gave weight to the one fact put forth by either party: the hospital had a policy vesting nurses with the prerogative of challenging a physician’s order, which used the phrase “good clinical judgment.” The appellate court implied that, if the plaintiff identified any expert testimony that the nursing activities at issue in this particular case did not require some exercise of judgment, then the factual record would have supported a finding that the nurses in this case were not exercising nursing judgment and, therefore, the instruction on professional judgment would be invalid.
The court did not endorse the regular substitution of the word “nurse” for the word “doctor” in the pattern jury instructions. It merely stated that, without specific facts from either party, the balance of authority weighs in favor of this substitution.
By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.
For more details, see the Scalpel Weekly News for October 20, 2014.
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For more information on cerebral injury, see the Medical Law Perspectives, October 2013 Report: Brain Aneurysm and Subarachnoid Hemorrhage: Failure to Diagnose, Delayed Diagnosis, Misdiagnosis
For more information on CT scans and MRIs, see the Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation
For more information on emergency care, see the Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care