RALEIGH, N.C. (Legal Newsline) - Registered nurses can be sued for malpractice even if they were carrying out a doctor’s orders, the North Carolina Supreme Court ruled, overturning a 90-year-old precedent shielding them from liability in all but the most egregious cases.
The decision by a three-judge majority drew a sharp dissent from two other judges, including the chief justice, who said it could force nurses to purchase malpractice insurance and raised difficult questions including what to do when a nurse and a physician disagree.
Edward Connette and Andrea Hopper sued the Charlotte-Mecklenburg Hospital Authority and Gus VanSoestbergen, a nurse anesthetist, claiming he was complicit in the decision to administer anesthesia that left a three-year-old child with permanent brain damage.
A jury ruled in favor of VanSoestbergen and the hospital in 2018, after the trial judge refused to allow testimony from a plaintiff expert that the nurse had violated the standard of care. An appeals court unanimously upheld the trial court’s decision, relying upon the North Carolina Supreme Court’s 1932 decision in Byrd v. Marion General Hospital, which held nurses don’t have a separate duty of care to patients when they are working under the supervision of a doctor.
The plaintiffs appealed, and the state Supreme Court overturned Byrd in an Aug. 19 decision. Justice Michael Morgan, joined by Justices Anita Earls and Robin Hudson, ruled that changes in the medical profession, including the increasing responsibilities and autonomy of registered nurses forced a change in the law.
“Due to the evolution of the medical profession’s recognition of the increased specialization and independence of nurses in the treatment of patients over the course of the ensuing ninety years since this court’s issuance of the Byrd opinion, we determine that it is timely and appropriate to overrule Byrd,” the majority wrote.
Under Byrd, nurses could be liable for acting outside the supervision of a physician, or for following a doctor’s instructions that were “so obviously negligent as to lead any reasonable person to anticipate that substantial injury would result.” But if the nurse was following a doctor’s diagnosis or treatment plan, only the physician could be liable for malpractice.
North Carolina courts applied Byrd “with increasing strain,” the court said. Hospitals increasingly supplied nurses and other personnel, diminishing the surgeon’s once-absolute control over the operating room, for example. Even the appeals court seemed pained by its decision, saying the plaintiffs made good arguments.
“We are an error-correcting body, not a policy-making or law-making one,” the appeals court said, however. “We have no authority to modify Byrd’s comprehensive holding simply because times have changed. Only the Supreme Court can do that.”
With this decision, registered nurses in North Carolina can be judged based on their own professional standards, regardless of whether they were following a doctor’s orders, the Supreme Court said. “Because we established the legal principle at issue in Byrd and no intervening enactment or policy has emerged to change it, we are properly positioned to reverse Byrd without treading upon the Legislature’s domain as we fulfill this Court’s charge to interpret the law,” the court concluded.
Justice Tamara Barringer dissented, joined by Chief Justice Paul Newby. The three-justice majority appeared to “create liability without causation,” Barringer wrote, by allowing a nurse to be liable for carrying out a physician’s orders.
“Left unanswered is what constitutes adequate collaboration or what happens when the physician and (nurse anesthetist) disagree,” the dissenting justice wrote. “The uncertainty created by the majority’s new standard highlights why such policy decisions should be left to the legislature, not this court.”