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Mar 27, 2013

When Dead is not Dead: One Nurse Who Dared to Challenge the Board's Position That Dead is Not Dead and Defended Herself as the Board Sought to Discipline Her Because She Determined That Initiating CPR on a Dead Patient was Futile.


“Wrong does not cease to be wrong because the majority share in it.”

The above quote is from Leo Tolstoy, A Confession.  It epitomizes a recent case that the firm handled on behalf of a professional nurse who spent the better part of two years being doubted by her then employer, her then superiors and/or colleagues, other colleagues in the profession, previous legal counsel, and, more importantly, the Board.  At every turn she was reminded repeatedly that she was absolutely wrong regarding her decision to withhold cardiopulmonary resuscitation (CPR) when she responded to an unwitnessed arrest involving a patient who had hung himself and was found in rigor mortis.  My client, who responded and immediately performed a comprehensive assessment determined presumptive and multiple conclusive signs of death.  Based on this, she determined that it was futile to initiate any resuscitative measures (i.e., CPR).  She determined that CPR was not proper and elected to not initiate CPR. 

To my client, dead meant dead.  To the Board, despite its acknowledgement that the patient was found dead, dead is not dead and even if one were dead, a nurse’s duty to the deceased does not end.  This belief lead the Board for the better part of two years to unflinchingly pursue public and permanent disciplinary action against my client.  When my client held firm in her belief and refused to accept discipline, this matter was scheduled by the Board for a contested case hearing at the SOAH.  Recently, and upon our filing of a motion for summary disposition (a motion requesting the judge dismiss this case), the Board, in response, dismissed this matter without any discipline against my client.  This case, not unlike others that we have handled, saw the Board take some untenable positions during the course of its investigation and throughout, providing harsh and scathing criticism of my client for her decision to withhold CPR.  The Board’s conduct and tactics were ratcheted up tenfold after it filed charges with the SOAH with the judge commenting that this case was "contentious."

Factually, an LVN on the scene disagreed with my client's decision to withhold CPR and began to argue with my client that CPR must be initiated.  When rebuked, the LVN alerted the charge nurse, an RN, who was not immediately on scene.  Once alerted, the charge nurse ordered that CPR be initiated.  This case came to the Board’s attention when my client informed her then employer, well after the fact, that she would respond in the exact same manner should this situation occur again. 

The Board took the undeniable position that an RN, who responds to an unwitnessed arrest of a patient that does not have a valid do not resuscitate (“DNR”) order, may not exercise judgment and make a decision to withhold CPR despite clinical signs supporting inappropriateness or futile intervention.  In my client’s case, a determination of inappropriateness or futility was made based upon presumptive and conclusive signs of death that were present; the latter being livor mortis and rigor mortis.  

The Board’s unmistakable position in this matter was that regardless of whether a patient is or was beyond the need for emergency medical intervention (i.e., resuscitative efforts; here, CPR), the generally accepted standards require that a professional nurse initiate CPR intervention.  Obviously my client disagreed.  She and I were told repeatedly during the investigative stage, during settlement conference, and while preparing for a formal hearing that she was wrong, that case law supported the Board’s position (we note this to be untrue), and that the Board considered this a “willful” act and would seek to impose discipline against her.  For good measure, a documentation allegation was leveled against my client and made its appearance for the first time only a few months before the actual hearing at the SOAH.

Essentially, the Board alleged that my client failed to practice professional nursing in an acceptable professional manner consistent with public health and welfare and violated her standard of care by failing to initiate CPR.    The Board complained that my client "failed to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the Board’s opinion, exposes a patient or other person unnecessarily to risk of harm,” and that she engaged in “unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud, or injure a patient or the public.” 

The Board staff, although it has and will continue to deny same, dismissed this case because they ultimately recognized, perhaps reluctantly, that we would not give up the fight, but more importantly, that they would lose at the SOAH based on the law and then, even if the full Board decided to impose disciplinary action following the SOAH hearing, would lose on a collateral issue in District Court and, if necessary, the Supreme Court, given the constitutional issues that we raised in our defense of this matter.  Baffling in their approach, the Board, despite a specific written policy on point that justified my client's action, took the position that it was free to ignore such a policy or apply it unevenly, selectively or limitedly.  When done so, this leads to the absurd practice of allowing it to pick and choose which nurse or which setting its own written policy applies to.  Although the Board believes it can and attempted to do so before dismissal--treating "orange" nurses differently from "purple" nurses--the United States and Texas Constitution instructs otherwise.  

The problem with the Board’s substantive case, with respect to the law, was that it could not establish the elements requiring that my client’s action exposed the patient to unnecessary risk of harm or that her conduct injured a patient.  Simply put, if it is undisputed that one is dead, what actually is the exposure to risk of harm or injury to that patient?  If the Board staff asked itself this question, and one must presuppose that it did given that they are the authorities regulating this practice, it begs the question of why did staff aggressively pursue disciplinary action against an RN given these facts relative to the law?  Irrespective of whether or not staff did so, it appears that there is a larger issue and agenda in play that cannot be answered here in this pedestrian blog posting.  Ultimately, we surmise that the answer may be found in the Board's hubris and the pervasive belief that the Board alone believes that it is the only entity that can define what the standard of care is and only it can determine how its policies and/or rules are applied or interpreted.  This, even for the Board, is pretty brazen.

For purposes of argument, if the Board's logic is followed to its natural conclusion, an RN must initiate resuscitative efforts in situations involving decapitation, a patient found in a state of decomposition, a patient presenting with all of the following presumptive signs of death (e.g., (1) patient unresponsive; (2) no respirations; (3) no pulse; (4) pupils are fixed and dilated; (5) body temperature indicated hypothermia (i.e., cold to the touch relative to the baseline skin temperature); (6) generalized cyanosis), a patient presenting with other conclusive signs of death (e.g., livor mortis), and where the provider’s safety could be comprised if resuscitative efforts were initiated.  This, for anyone other than the Board, is mere folly; especially to the American Heart Association who is the leading authority on the standards for CPR and recognizes exceptions for withholding CPR; itself recognizing futility (incredibly, even the Board recognizes futility).

This case, overall, presented with many issues, and many messages from the Board; many of them chilling.  One of the most chilling is that the Board discounted information learned by an RN during a comprehensive nursing assessment and discounted other circumstances and assessments derived by that RN that could influence a decision on the part of the RN to not initiate CPR.

This case had a myriad of problematic issues for the Board and one must presuppose that the Board was cognizant of same, but was willing to suspend the application of its own policies (Board position statement 15.20), re-interpret its policies as it deemed fit, and ignore the the law and its own administrative rules in order to seek discipline against my client at all cost. 

In the end, this case was dismissed by the Board in response to our motion for summary disposition, but prior to a ruling by the SOAH ALJ on my client’s motion.  Had it not been dismissed we were confident the same result would have been achieved per the judge's ruling in favor of our motion.  The Board, as it may likely, can now choose to explain or spin this matter how it sees fit.  It's best tactic, however, is remaining silent on this issue as evidence by its dismissal prior to further judicial involvement or scrutinty.  Without a doubt, the groundwork that frames its belief that my client was wrong can still be employed in similar cases going forward.    

Finally, I add parenthetically that I am extremely proud of the expert we retained who was unequivocal in his opinion no matter how testy or agitated Board counsel became during his deposition.  Moreover, I am extremely proud of my client for the fortitude that she exhibited during this entire proceeding.  Nurses are trained to save lives and and often encounter many life or death situations.  When death occurs or has occurred that involves a nurse, this gives rise to a multitude of emotions, many of them raw.  These emotions were compounded negatively by the Board in seeking to impose discipline.  Regarding my client, a much lesser individual would have questioned themselves and likely succumbed to the Board’s tactics and doggedly, aggressive pursuits to initiate discipline against her.   Despite her triumph if it can even be considered as such, this entire process came at great costs to her professional reputation and emotional well-being.  In the end, she proved, without question, her conviction and belief that “wrong does not cease to be wrong because the majority share in it.”


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