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Finnerty v. Board of Registered Nursing (Cal. Ct. App. - Nov. 13, 2008)

By Shaun Martin

I knew that there were disputes at the margin about the chain of command in, say, the military. You can't just uniformly say you were "following orders" and be in the clear; there's a degree of professional judgment (albeit circumscribed) involved as well. Until I read this case, I was less informed about the "chain of command" at a hospital; or, at least, the relative roles of doctors and nurses. But now I know a bit more.

Moreover, given that your life and welfare is much more likely to be at stake in a hospital than in the hands of the military (at least nowadays), practically speaking, this is a good topic to understand. The question here is whether a particular nurse (Ellen Finnerty) should have her license taken away for countermanding orders of a doctor. Basically, you had a very sick patient with very labored breathing, but when the doctor ordered immediate intubation (in the hospital room), the nurse disagreed, and whisked the patient off to the ICU for intubation therein instead.

My reaction to the case varied a little bit page-by-page. Initially, I thought that the nurse was totally and completely in the wrong. And my intuition was definitely that the doctor -- not the nurse -- should clearly be in charge. But then, after reading various paragraphs, I thought there might actually have been good reason for the nurse's decision; namely, that intubation might have been a lot safer in the ICU, and she argued that the intubation would actually have taken place faster there since the room didn't have the staff or equipment to do the intubation within the 5 minutes it would take to roll the patient to the ICU and intubate there. If that was indeed the case, then I could see why the nurse might have acted the way she did. And presume -- and I've been around hospitals a lot lately -- that nurses generally don't countermand the express orders of a doctor on a whim, and that when they do so, they typically feel like they've got a darn good reason for doing so.

But, in the end, I think that Justice Cooper gets in right. On both the facts as well as the law. Yes, nurses have the power to countermand clearly dangerous orders. But this one wasn't. The intubation originally ordered by the doctor could indeed have taken place more rapidly in the room. And hence, especially when giving the decision below deference, the decision to revoke the nurse's license was justified. You can refuse to follow the orders of those superior to you. But if you do, you'd better be right. And here, the nurse wasn't. And the fact that the patient died a mere hours after the delayed intubation -- even if (as the Court of Appeals recognizes) the delay had nothing to do with the death -- surely doesn't help the nurse's position.

This stuff matters. Part of me profoundly respects a nurse for putting her own booty on the line if she does so in a sincere attempt to advance the welfare of the patient. That's an incredible, incredible thing. On the other hand, if the nurse countermands an important order merely because (as at least alleged here) she thought that an immediate in-room intubation would be a hassle to the staff and patients at shift-change time, well, in that event, I'm not at all bummed that you lose your license.

In the end, I agree with Justice Cooper. The casual reader, or justice on the Court of Appeal, can't tell for sure which version of the facts is right. Both versions have some support. So, right or wrong, you affirm.

Yep.

Full post as published by California Appellate Report on November 13, 2008 (boomark / email).