TRENTON, N.J. (Legal Newsline) – A woman who pulled a medical tube out of her nose and refused to let it be reinserted can’t sue her health care provider because her condition worsened without it.
The New Jersey Supreme Court made that decision on May 4, overruling an intermediate appellate court and dismissing the lawsuit of Linda Cowley. Justice Faustino Fernandez-Vina authored the opinion, restoring the trial court’s decision and going against the arguments of the state’s trial lawyer group – the New Jersey Association for Justice.
The case swung on whether an affidavit from an expert was required to help determine if the lawsuit had merit, as required for medical malpractice lawsuits in some jurisdictions.
“Here, where a patient removed the tube herself and refused replacement, important questions about the procedures, protocols, and duties of a licensed nurse in these circumstances must be explained in order to establish a deviation in the standard of care,” Justice Feranandez-Vina wrote.
“In addition, important considerations about patient autonomy complicate the standard-of-care analysis. A jury could not reach a determination as to a nurse’s responsibility under these circumstances without the benefit of expert opinion as to the appropriate balance between patient autonomy and prescribed treatment. An affidavit of merit was therefore required…”
Cowley was admitted to Virtua Voorhees Hospital and was administered a Nasogastric Tube to deliver medicine, liquids and liquid foods through her nose into her stomach.
But Cowley removed the tube herself overnight and refused replacement. Her lawsuit said her condition deteriorated because the nurses refused to comply with the original written order from her physician to insert the tube.
Her lawsuit did not contain the affidavit of merit required, though. Her lawyer and the state’s trial lawyers argued it did not need one because of a “common knowledge” exception. The NJAJ also argued the failure to follow the doctor’s order was at least enough evidence of negligence to allow the case to proceed.
“Common sense dictates that some action should have been taken when the nurses were confronted with the sudden termination of Linda’s medical treatment that was required by the physician charged with her care,” the intermediate appellate court ruled.
The Supreme Court did not agree, however.
“To assess a deviation in the standard of care in such a setting, one must know the procedures, protocols and scope of duties of the licensed professional nurses in such circumstances,” Justice Feranndez-Vina wrote.
“An expert is required for that explanation. Such information is outside the realm of common knowledge. And, importantly, considerations of patient autonomy must be added to the consideration of the requisite professional standards in this matter.”
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.