Duty of care: where does a nurse’s responsibility end?

The potential liability of health services, hospitals, day surgeries and clinics does not, depending on the nature of the treatment or care provided, cease upon physical discharge or a patient leaving the facility. If any treatment or care has had an “adverse” and/or “debilitating” effect on a patient’s level of functioning, cognition and/or consciousness, it becomes a matter of determining what potential harm is reasonably foreseeable thereafter.

A recent case illustrates that a healthcare provider/service and its staff have a “positive” duty of care to make enquiries and ensure arrangements are instigated to minimise risk to such patients.

The plaintiff (Ms N) alleged that at the time of her discharge from hospital (3pm) she was tired and drowsy, which significantly resulted from sedation, and she should not have been permitted to drive home – a distance of 50km. Her claim against the hospital and treating psychiatrist related to injuries suffered as a consequence of a car accident caused by “blacking out” or falling asleep some 10 minutes after discharge.

Ms N had been hospitalised 31 days prior to the accident with depression, including suicidal ideation. In the course of her hospitalisation, she was prescribed various medications, including 20mg zolpidem, 5mg diazepam and 10mg oxycodone (the last of which the court found she ingested at 8am on the morning of discharge).

During the course of Ms N’s entire hospitalisation, the notes made clear that she was lethargic, tired and drowsy.

The court found that on the morning of discharge, Ms N was sleepy and drowsy, that the nursing staff woke her on about four occasions, and that on each occasion she kept falling asleep, including over breakfast time on the day of discharge and again thereafter in her room. In fact, on the morning of discharge, Ms N stated that she did not even pack her bags, and that when woken at lunchtime, “[the nurse said] they needed the bed for another patient, so while I was in the shower and got out, the bed was stripped and cleaned down. All my bags were packed, my car was brought to the door, closer to the hospital, and all my stuff was packed into my car”.

Ms N alleged numerous breaches of duty owed to her, including:

(a) failing to observe her condition before discharge
(b) failing to ascertain the means whereby the plaintiff was journeying home
(c) furnishing the plaintiff’s car keys to her at the time of her discharge
(d) facilitating her to operate a motor vehicle immediately on discharge
(e) failing to warn her of the potential effects and/or not to operate a motor vehicle due to her medications to get home.

The hospital sought to deflect liability to the psychiatrist who prescribed the medication. The psychiatrist denied negligence and sought to rely on the relevant defence afforded under the Civil Liability Act, to assert that her treatment of Ms N was in a manner that at the time was accepted in Australia by peer opinion as competent professional practice.

Both the hospital and the treating psychiatrist alleged contributory negligence on the part of Ms N, in that she:

(a) drove in circumstances where she knew or ought to have known that she may be (adversely) affected by medication
(b) failed to inform the hospital that she was not fit to drive
(c) failed herself to request a taxi or other means of transport to return home
(d) failed to arrange for someone to collect her from hospital.

At trial, the psychiatrist argued her treatment of Ms N was “in accordance with peer professional standards of practice”. The judge dismissed this defence, rejecting the defendant’s expert opinion in support of the defence argument because the expert’s opinion contained an implicit assumption that the psychiatrist assessed the plaintiff as “fit to drive”. On this topic the judge said: “[That] does not reflect the evidence of the psychiatrist. The effect of her evidence was that she left the assessment of fitness to drive as a matter for the plaintiff herself. In my view, that could never be considered acceptable professional practice for a patient taking sedative medication.”

The judge had access to overwhelming and consistent evidence from various sources including from the psychiatrist, the hospital, the contemporaneous notes leading to discharge, the observations of an independent witness and the notes/letters created after the accident, which demonstrated that Ms N was tired, drowsy and sedated at the time of discharge. Accordingly, the court found Ms N “was not in a fit state to make a decision about her capacity to drive” and that the onus in such circumstances was “with the hospital/health service and their clinical staff”.

As the patient was successful in her claim against both defendants (the hospital and the treating psychiatrist), liability to the plaintiff after apportionment was $32,167 and $64,333, respectively, therefore totalling $96,500 in damages. The apportionment between the defendants was on the basis that the hospital was one-third responsible and the psychiatrist two-thirds responsible. The court found no contributory negligence on behalf of Ms N.

While this judgement concerns the effects of psychiatric medications on discharge of a patient, it is a salutary warning to other areas of care whereby patients are discharged or leave under the influence of the treatment and/or care they have received. This warning includes nurses, for in this case one of the last staff members who undertook a risk assessment was a nurse.

Scott Trueman is a lecturer in the school of Nursing, Midwifery and Nutrition at James Cook University.

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