Nurse Refusing CPR Could be Legally Liable Despite Policy

March 5, 2013 - PRLog -- WASHINGTON, D.C. (March 5, 2013): The nurse who refused to even try using CPR when an elderly resident at her facility was dying may be liable – civilly and perhaps even criminally – even though California does not have a so-called duty-to-rescue statute, because a variety of special circumstances may create such a legal duty in this unique situation, says public interest law professor John Banzhaf, who teaches this subject.

Any civil liability by the nurse would likely make the independent living facility which employed her civilly liable as well, although imposing criminal liability on her might not likewise expose the facility to criminal proceedings and penalties.  Reportedly, a criminal investigation is being conducted by the local authorities.

Generally, the law does not require one person to attempt CPR – or to otherwise even go to the assistance of a person facing a sudden emergency – but such a legal duty has often been imposed, even in the absence of a duty-to-rescue statute, where special circumstances have been present.

The special circumstances which have been held to create a legal duty to assist include: when a person becomes ill, or is injured, on the premises of the defendant; when there is a special relationship – especially one of dependence or reliance – between the plaintiff and the defendant, even if the plaintiff is otherwise healthy and is, for example, simply a passenger in defendant's automobile; when the plaintiff is a guest at a hotel or motel (or even a patron at a store) owned or operated by the defendant, etc.

Here it appears that all of these factors were present, creating an even stronger argument for imposing civil liability here. For example, the person in immediate peril was on the defendant's property. Indeed, the property was an independent living facility which is like a hotel or motel, except that the dependence of the elderly woman was obviously even greater than that of a typical guest of a hotel.

Moreover, unlike the ordinary relationship between a hotel or motel employee and a guest, there appeared to be a special relationship between the frail women and a nurse-caregiver which even further strengthens the argument that a legal duty exists.

Indeed, some courts have held that there may be a general duty based upon "principles of social conduct so universally recognized that their observance is demanded as a legal duty, and the relationship of the parties may impose obligations that would not otherwise exist. . . . It has been said that under some circumstances moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person; failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care."

For example, a California appellate court held that a women owed a legal duty to go to the aid of a healthy man she had just met – in this case when he took an overdose of drugs in her bathroom. When she did nothing to help, and the man died as a result, she was convicted of the crime of involuntary manslaughter.

Another court held that a husband and wife had a legal duty to a guest in their home who had suddenly become seriously ill. If ordinary folk have a duty to help a previously healthy house guest, how much greater must the legal duty be when the plaintiff is a frail and elderly women known to have health problems, and the defendant is a commercial facility which maintains a nurse on the premises.

An entirely different and additional basis for imposing civil liability occurs when a defendant assumes the responsibility of aiding another, and then refuses to take reasonable steps. This is especially true if other persons who might have rendered assistance are deterred from doing so by the actions of the defendant – especially someone in a position of authority – apparently taking control
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Here, other elderly residents or even non-resident guests might well have called 911 themselves, and/or attempted CPR under the guidance of the 911 operator, if they hadn't seen the nurse already on the phone and apparently doing whatever might reasonably appear to be necessary.

In another California case, an appellate court held a restaurant owner liable when he failed to call the police, or let others call the police, to deal with a death threat made by a third party. In this case of the nurse, she apparently refused to hand the phone to any bystanders – and possibly prevented those bystanders from calling or using the phone themselves – to aid their dying fellow resident.

One thing which should be clear is that the “I was just following orders” argument – in this case, the policy of the independent living facility – is not a valid legal defense to either civil or criminal liability. The Nuremberg defense (or lawful orders defense) has no more place here than when Nazi guards tried to use it when they similarly did nothing to prevent the deaths of those in their care, says Banzhaf.

In death camps, trying to prevent a needless death would have put guards at risk for their lives, whereas here performing CPR to help a dying elderly resident would at most cost the nurse her job, says Banzhaf.  He also suggests that the nurse may have put her nursing license at risk by following orders which might constitute a breach of her ethical and even legal duties as a nurse.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf