Rejecting a lower court's no-harm-no-foul decision, the Supreme Court of Delaware October 2 upheld discipline imposed by the state's board of nursing on two nurses in a state correctional facility who retrieved several expensive pills out of a medical disposal container and administered them to an unknowing patient.
(Delaware Board of Nursing v. Francis).
This case is the latest, and perhaps the last, chapter in a somewhat sensational case involving the reclamation of expensive hepatitis C medication—dropped in a medical sharps disposal container and fished out again before being administered to a patient—in a Delaware correctional facility.
In March 2015, two nurses at the James T. Vaughn Correctional Center in Smyrna, Delaware, spilled twelve pills of sofosbuvir, a hepatitis C medication costing $1,000 per pill. The nurses discarded the spilled pills into a medical sharps disposal container, which contained medical waste like syringes and blades.
When the nurses asked the prison’s pharmacist to order a refill of the expensive medication as part of an inmate patient’s prescription, the pharmacist contacted her supervisor, who contacted the head physician of the company that provided the prison’s medical care, who called Christine Francis, a licensed nurse serving as the prison’s health services administrator, and told her to retrieve the pills from the disposal container for further use.
Francis and Angela DeBenedictis, the prison’s director of nursing, found the container, turned it upside down, and shook it until all twelve pills–plus assorted syringes, lancets, and diabetic testing strips–tumbled out of the container.
Importantly, additional waste which had contacted the pills remained inside the container and was never identified.
The reclaimed pills were eventually administered to the patient, who was not informed of the adventure they had taken through medical waste disposal. The patient did not experience any ill effects from taken the potentially-contaminated pills, but upon learning that the discarded medication had been reclaimed and administered, one of the two nurses who had done the initial discarding filed a complaint with Delaware’s Division of Professional Regulation. Disciplinary proceedings against the two supervising nurses who retrieved the pills followed.
The nurses’ defense was based on two primary arguments. First, they argued that, because the patient had not suffered any ill effects, they could not be disciplined. Second, they argued that, even if reusing the pills was unprofessional, they were acting on the direction of both a physician and a pharmacist, and were not required to question those others’ judgment.
During an administrative hearing, the nurses enlisted expert witnesses who opined that the pills’ contact with various disposed items could not cause harm to the patient. However, the testimony of those experts was premised on the mistaken premise that all of the contents of the disposal container had been known, as well as what, if anything, had been on the surface of the floor where the pills were originally spilled.
In the eventual ruling by the Supreme Court of Delaware, Justice Gary Traynor noted that, other than the sharp objects which were known, other typical contents of such a container include “wound dressings, items soiled with more than five milliliters of blood or other bodily fluids, items from patients on strict isolation, skin-piercing objects such as needles, disposable scissors, scalpels, and catheters, and other disposable equipment for other internal use.”
Thus began a series of decision which eventually sent the case up to the state Supreme Court. After a hearing officer found the nurses culpable for unprofessional behavior, the board placed them on probation for ninety days and ordered them to undergo ethics and pharmacology training.
The nurses appealed this decision, and a state superior court found in their favor, holding that the state had failed to present evidence that the standards of the nursing profession require licensees to disobey instructions from a doctor or a pharmacist—in this case, the physician who told the nurses to retrieve the pills and the prison pharmacist, who the nurses claimed had okayed the use of the pills.
In addition, the court held that, in order to discipline the nurses, the state had to have shown that their actions had caused harm to a patient, which the state had not done. The board appealed, and the case went up to the Supreme Court, which reversed the superior court.
The justices of the high court did not agree that the nurses would have needed to cause actual harm to their patient in order to be disciplined for unprofessional behavior. “While the Superior Court thought that requiring nurses to protect patients from conduct that falls below professional standards—but may not pose a risk—would be an ‘unnecessary redundancy,’ we think it would be entirely consistent with the State’s special interest in upholding the integrity of the profession,” wrote Justice Gary F. Traynor.
Justice Traynor explained that, in making its decision, the lower court had incorrectly interpreted the state’s nursing regulations. The rule defining “unprofessional conduct” states that “nurses whose behavior fails to conform to legal and accepted standards of the nursing profession and who thus may adversely affect the health and welfare of the public may be found guilty of unprofessional conduct,” and the superior court incorrectly read that language as requiring both that licensees fail to conform to legal and accepted standards of behavior and that that behavior adversely affected the health and the welfare of the public before the state can issue discipline.
However, Justice Traynor wrote, “the Board may have rightfully concluded that a nurse who engages in standard-breaching behavior is, for that very reason, a nurse who ‘may adversely affect the health and welfare of the public,’ regardless of whether the nurse’s unprofessional behavior in fact caused specific harm to the patient. The use of the word ‘may’ has the clear intent of addressing improper behavior that may cause harm; the rule does not exempt from sanction improper behavior that creates a risk to a patient simply because the harm does not come to pass.”
The justices rejected the nurses’ other arguments. First, the court ruled that the board reasonably believed that the nurses’ actions put their patient at real risk of harm, due to the risk of contamination from the floor and the medical waste contained in the sharps container. And the nurses could find no excuse in the claim that they were simply following the orders of a doctor and a pharmacist.
“This is not a case where a nurse found herself in a good-faith disagreement with another professional about how to best care for a patient, which might excuse a violation of her own profession’s standards in deference to another professional who the nurse believes has higher decision-making authority or subject matter expertise,” wrote Justice Traynor.
“The directive the nurses received to retrieve pills from a sharps container was not born of a divided judgment about how best to care for the inmate’s condition and administering pills that had come into contact with the floor—let alone the medical waste container—was so basic a misstep that the two on-duty nurses who originally discarded the pills . . . both knew it was wrong. . . . Worse still, the record reflects that medical staff planned to keep their actions quiet and keep the patients in the dark.”
“The only urgency here was economic, and, while conserving resources is not an improper motive, we see no error in the Board’s conclusion that a desire to save money did not excuse the professional breach these nurses committed.”