Statutory provisions

There are often clear legislative obligations on nurses and other health professionals to undertake specific actions. For example, the Poisons Act Regulations of a particular state or territory provide that a registered nurse is required to check a dangerous drug with another nurse before administering it. A nurse’s failure to do so, without reasonable cause and which results in an incorrect drug being administered, would be deemed to be a breach of the nurse’s obligations under the Poisons Act Regulations. This would be in addition to a breach of her general duty of care to her patient by failing to observe proper professional standards of care and safety in the administration of a dangerous drug.

Departmental guidelines and/or employer policy and procedure directives

More often than not, the respective state or territory and Commonwealth departments of health issue numerous policy circulars, many of which are of direct relevance to nurses in their day-to-day work. Such policy circulars very often lay down procedures and practices to be observed and enforced in given clinical situations and are generally issued as a clear indication of the standards to be observed in such situations.

In addition, employers in the health industry put in place a large number of policy and procedure directives designed to ensure that employees follow a safe and recognised standard of clinical practice. Often a failure by a nurse to abide by a particular policy or procedure directive may provide supportive evidence of an allegation of a breach of his or her duty of care in a given situation. For example, if a hospital procedure manual laid down the strict procedure to be followed in adding prescribed drugs to a patient’s IV fluid line or in the administration of a blood transfusion, then a nurse’s unreasonable failure or refusal to abide by such procedural directives, with consequent adverse effects on the patient, would clearly place that nurse in breach of the proper and generally recognised safety standards laid down by the employer. It would also place the nurse in breach of his or her general duty of care to the patient because he or she failed to observe proper standards of care and safety in carrying out nursing procedures. In other words, the employer’s policy and procedure directive would be used as evidence of a reasonable professional standard, against which the nurse’s conduct would be judged.

Professional standards of practice

Nurses, like many other groups within the health industry, have addressed the need for the development of professional standards covering a wide range of their professional activities and responsibilities. The development of such standards is to be applauded and encouraged, as long as they are subject to regular professional peer review and assessment and are generally recognised by the profession as appropriate for the nursing activity to which they refer. Like the departmental and employer policy and procedural directives, professional standards documents would, where relevant, clearly provide objective evidence of an expected reasonable standard of professional conduct in a given clinical situation.

The courts in Australia and overseas have on occasions seen fit to specifically refer to documented practice and procedure standards as well as nursing standards documents as evidence to assist them in determining the standard of care expected of a nurse in a given situation. A very good example where the court relied on professional standards document was in the case of Langley v Glandore — a decision of the Court of Appeal of the Supreme Court of Queensland.⁶ The full details of that matter are set out later in this chapter.

That matter involved, amongst other things, the standard expected of nursing staff in operating theatres in relation to the counting of sponges. In commenting on that issue, the court said:

Nurses who work in operating theatres would know that reference to the ‘ACORN’ standard is a reference to the standards adopted by the Australian Council of Operating Room Nurses (ACORN).

As well, a recent Canadian case used the standing orders of an emergency room as the standard against which medical and nursing practice should be measured.⁸ In another Canadian case, an entire section of the procedure manual was reproduced in the judgment as it was considered crucial to determining the question of whether or not the practice under review had fallen below the standard which could reasonably have been expected.⁹

Closer to home, the Supreme Court of South Australia has made specific reference to professional standards in dealing with an appeal against a finding of a disciplinary tribunal of The Nurses Board of South Australia in the following terms:

Academic texts and publications

Recognised academic texts relevant to that particular area of healthcare and nursing practice may provide the foundation of widely accepted and safe nursing practice.

The best way of obtaining a clear understanding as to how the courts would approach the determination of the standard of care in a professional setting is by examining previous incidents that have arisen as a result of the conduct of various nursing or medical staff in the performance of their duties. The examples which follow arise in some cases from a formal finding of civil negligence by a relevant court of law. Other examples are derived from a coroner’s inquiry into the death of a patient. In the case of the latter examples, there is no formal finding of civil or criminal negligence but rather adverse and critical comment by the coroner concerning the actions of the nursing and/or medical staff concerned in determining the manner and cause of death.

All of the examples serve as a useful guide to understanding the standard of care expected in diverse clinical situations. All of the examples arose before the civil liability legislation was introduced in each of the states and territories, with the majority legislating, as exemplified in section 5O of the Civil Liability Act (New South Wales) as to the approach to be taken in determining the standard of care for health professionals (amongst others). That legislative approach does not negate the following case reports as practical examples that would still be relevant in determining whether the standard of care given in a particular situation was ‘widely accepted in Australia by peer professional opinion as competent medical practice’ or otherwise.

In many situations concerning the determination or otherwise of negligence in hospital or healthcare situations, the findings of a Coroner’s Court are often the first step in the legal process. The findings and evidence elicited in a coroner’s inquiries are often used as the basis for a subsequent court action alleging civil or criminal negligence. It is for that reason that Coroner’s Court inquiry reports are a valuable source of guidance and assistance in understanding the standard of care expected of nurses in certain clinical situations.

Facts

A 6-year-old child was admitted to hospital for a routine tonsillectomy. The operation was performed at the commencement of the afternoon list and the child was in the recovery room of the operating theatre at approximately 2.30 p.m. Prior to surgery an intravenous line was inserted and during the operation the child received 300 mL of normal saline. At the conclusion of the operation the surgeon wrote on the intravenous fluid order chart that the child was to continue to receive 100 mL per hour of a dextrose/saline solution. The registered nurse in the recovery room commenced an observation chart on the child (Figure 3.1), but not a fluid balance chart. That was commenced by the registered nurse in the children’s ward on the child’s return (Figure 3.2). The registered nurse in the recovery room, apart from noting some preliminary pulse rate readings, also wrote the initial comment concerning the intravenous fluids to be given to the child. That comment read, among other things, that the child was to have ‘as much as possible in ward’.

FIGURE 3.1 Child’s observation chart for incident described in example 1

FIGURE 3.2 Child’s fluid balance chart for incident described in example 1

The child returned to the ward at approximately 3 p.m. and the fluid balance chart was commenced and observations continued. A glance at the fluid balance chart in Figure 3.2 will reveal that at 4.30 p.m., some 1½ hours after the child’s return to the ward, a further litre of the dextrose/saline solution was commenced. This litre went through by 2 a.m. the next day, and a further litre was commenced by the registered nurse on night duty. The fluid balance chart does not reveal when that litre was intended to be completed but it does reveal that by sometime later that morning (approximately 9 a.m., as best determined in court) the child had received 700 mL of that litre. The total intravenous fluid intake of the child from the time of the operation to 9 a.m. the next morning was 3 litres — remembering the 300 mL of normal saline that was never entered on the fluid balance chart.

The child’s observations were continued spasmodically, as the observation chart reveals, and there were occasions when no observations were taken for some hours. A critical examination of the pulse rate in Figure 3.1 shows a slow but steady decline, and a relevant section of the nurse’s notes reveals that the child’s pulse rate went down to as low as 48 on at least one occasion.

The following are extracts from the nurse’s notes, written by the registered nurse on night duty at various intervals during the night:

Following the incident at 4.15 a.m., the child’s doctor came to the hospital and administered IV Valium and IM Dilantin to control the fitting. He also reduced the IV fluid order to 60 mL per hour. In doing this he did not look at the child’s fluid balance chart, as he presumed the child had been receiving what he had originally ordered (100 mL per hour). Arrangements were also made for the child to be seen by a specialist consultant later in the morning. This was done but no definite cause for the child’s condition could be determined at the time. While investigations were still under way, the child had a cardiac arrest at approximately 10 a.m. the same day, from which she never regained consciousness, and she died a few weeks later, the immediate cause of death being bronchopneumonia.

Comment

At the coroner’s inquest which followed, the major allegation raised by the relatives’ legal representative was that the real cause of the child’s death was the excess fluid negligently administered to the child by the nursing staff. It was stated that the excess fluid resulted initially in cerebral oedema with attendant cerebral irritation, eventual grand mal fitting, electrolyte disturbances, cardiac arrhythmia and finally cardiac arrest. Allegations of mismanagement were also levelled against the medical officers involved, because of their failure to detect the fluid overload as the cause of the child’s problem and deal with it. Certainly, in the absence of any other extrinsic evidence as to the cause of the child’s death and the expert medical evidence presented in support of such a proposition, it would appear that the excess fluid given to the child played a major role in the child’s death. Even assuming that it had not, this unhappy episode serves to illustrate very clearly the standard of care that is expected of nursing staff.

In making his formal finding of the manner and cause of death (bronchopneumonia following cerebral hypoxia and cardiac arrest) the coroner was extremely critical of the standard of care delivered by the nursing staff to the child. The areas of criticism can best be examined as outlined below.

The child’s fluid intake and the fluid balance chart

There can be no doubt that the child’s intravenous fluid intake far exceeded that ordered. The ward staff were obviously guided in their administration of fluid by the comments of the registered nurse in the recovery room to give the child ‘as much as possible in ward’.

In comparing what was done on that occasion against the objective standard that would be expected of the ordinary reasonable registered nurse in the same situation, ask yourself the following questions:

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would write ‘as much as possible in ward’ as a patient’s IV fluid order?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse working in a children’s ward would accept such an order as appropriate?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would seek clarification of such an order from the medical officer immediately?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would know the normal fluid balance requirements of children?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would know that 3 litres of fluid in 20 hours would be an excessive amount of fluid to give to a child of 6 in most situations?

If uncertain as to whether or not the IV fluid intake was or was not excessive, would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would seek clarification from the relevant medical practitioner?

In our view, the answers to the questions posed are self-evident. Using this example, it is important to appreciate that, as far as the law is concerned, it would be expected that a registered nurse who is nursing children or infants would be aware of the different fluid balance requirements of children. It would not be expected that the precise requirements of every age and weight be known by rote, but that a general knowledge of the difference be known which should cause nursing staff to be aware of the need to carefully check the fluid balance regimes of children. It would be argued that a registered nurse would have received such knowledge as a result of the education program undertaken to become a registered nurse. Accordingly, if a registered nurse is going to work in a paediatric area, the law would presume as being reasonable and part of her profession that the nurse not only has the knowledge but applies it.

The child’s observations and the observation chart

The child’s observation chart clearly demonstrates a steady decline in the child’s pulse rate as well as comments which state either that the child is ‘sleeping’ or ‘restless’. Such observations and comments have to be compared against the comments in the nurse’s report to the effect that the child is ‘twitching; screaming; eyes glazed; vomiting bile; obs. satisfactory’ and later ‘vomiting continued, but twitchings became less — movements generally became more rational. Pupils still dilated’. The child’s chart shows that there are also some periods when the observations were not recorded.

In comparing what was done on that occasion against the objective standard that would be expected of the ordinary reasonable registered nurse in the same situation, ask yourself the following questions.

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would not only record the child’s pulse rate but also note the steady drop in the rate?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would notify the medical officer of the drop in the pulse rate?

Would it be considered widely accepted as competent professional practice by peer opinion that a registered nurse would be alarmed or concerned at the signs and symptoms being exhibited by the child — for example, ‘pupils still dilated’ — bearing in mind she was a post-tonsillectomy patient?

Once again the answers to the questions posed are self-evident. One of the major tasks of nursing staff is to take and record observations on a patient so as to indicate the present state of the patient’s clinical condition and to act as an indicator of any worsening or improvement in that condition. As a result of such observations, together with other methods of clinical investigation, a patient’s treatment and/or medication is generally determined. It goes without saying that a nurse’s responsibilities in this area are significant. Important as the taking and recording of a patient’s observations are, what is more important is understanding the significance of those observations. Equally, as far as the law is concerned, a registered nurse would, generally speaking, know the significance of the observations she is taking and recording; that is, what is normal and what is abnormal having regard to the patient’s condition. Such knowledge would be presumed to have been received as part of the registered nurse’s education and training. If the registered nurse is presumed to have such knowledge it must follow, as a matter of commonsense, that, in the presence of abnormal observations, widely accepted professional practice would be that the nurse concerned would notify the appropriate medical officer or senior nursing staff. That is the standard of care that would be expected in such circumstances.

Facts

The plaintiff, Sha Cheng Wang, was left seriously and permanently disabled by irreversible brain damage as a result of an assault perpetrated upon him in April 1988 as he was walking from the railway station to his home. He was struck from behind by a heavy object and fell to the ground and may have been unconscious for a short period.

He managed to walk to his home, and two of his friends there took him by taxi to Royal Prince Alfred Hospital at Camperdown. They waited for some time in the Emergency Department, where they were joined by other friends of Mr Wang. After some time, and before Mr Wang had been treated, they left and went to the city Superclinic, which was then on Broadway near Railway Square. There, Mr Wang was treated by Dr Andrew Katelaris and returned home.

In the small hours of the following morning his condition deteriorated and he was taken back to Royal Prince Alfred Hospital by ambulance. It seems that his skull was fractured. He was suffering from extra dural haemorrhage, and surgical intervention at that stage was unable to prevent irreversible brain damage.

In the litigation which followed, the court found Central Sydney Area Health Service liable for Mr Wang’s damage because of the actions of the relevant nursing staff in the Emergency Department of Royal Prince Alfred Hospital. In doing so the judge dismissed allegations of negligence against Dr Katelaris and his employer Superclinic Australia Pty Ltd.

As the full facts of the matter disclosed, the reason why Mr Wang left the Emergency Department and went elsewhere is because he and his friends became upset and impatient that he was not seen by a doctor within a short time of his arrival at the Emergency Department. They were worried about his condition, he was bleeding from his head wound and very pale, but conscious. Mr Wang had come to the Emergency Department at 9.25 p.m. and left at approximately 11.00 p.m.

In his treatment at Royal Prince Alfred Hospital, Mr Wang was attended to by a registered nurse.

Mr Wang was seen on arrival by the triage nurse, Registered Nurse Carruthers, who obtained a brief history and undertook a brief physical examination of him. Her entry in the patient notes read simply ‘assaulted ? LOC’ and she explained that the expression ‘? LOC’ meant a possible loss of consciousness. There was no other notation made of any other neurological observations undertaken by Nurse Carruthers, although she gave evidence that, as part of her initial examination of Mr Wang ‘he walked into her office unaided and appeared to be alert. She had him squeeze her fingers to test his hand grip, which she found to be firm and equal. She checked his pupils by having him close his eyes and open them quickly, and they appeared to be equal and reacting to light’. It should be noted at this point that the judge hearing the matter concluded that he found the evidence of Nurse Carruthers ‘unreliable in certain respects’.¹²

In any event, Nurse Carruthers advised Mr Wang and his companions that the Emergency Department was busy and they would have to wait. There was evidence that Mr Wang’s companions later approached Nurse Carruthers on two occasions expressing their concern about him.

At about 10.00 p.m., Nurse Carruthers was relieved by Registered Nurse Jennifer Smith. Evidence was given that one of Mr Wang’s companions subsequently approached Nurse Smith to enquire how much longer Mr Wang would have to wait to be treated. He was told that the department was busy and that a lot of people were waiting. About 15 minutes later he asked her if they could go somewhere else for treatment, perhaps at a private hospital, and she said that they were free to do so. As he put it, she said that ‘we can do whatever we want to’.¹³

A decision was taken to leave the hospital and seek treatment elsewhere. Mr Wang and his friends left about 11.00 p.m. and Nurse Smith wrote in the notes ‘Did not wait to be seen’.

When Mr Wang and his friends arrived at the Superclinic he was immediately seen by Dr Katelaris. There was no criticism or adverse finding as to the treatment given by Dr Katelaris to Mr Wang as recorded by his clinical notes at the time. That is:

Dr Katelaris obtained a full history of the assault.

He examined Mr Wang and took the full range of neurological tests. He found no abnormal signs.

He examined, cleaned and sutured the head wound and administered a tetanus toxoid injection.

He advised Mr Wang he should return to the hospital for an X-ray. This was rejected because of the displeasure at what had occurred earlier.

Dr Katelaris gave them a ‘head injury advice form’ and went on to explain what it said, using gestures to ensure that he was understood. He said that an ambulance should be called immediately in the event of vomiting or convulsion, if the plaintiff became drowsy or unrouseable, or if they observed weakness in one or more of his limbs or inequality in the size of his pupils. He told them that the plaintiff should not be left alone. He advised them to take him to a Chinese-speaking doctor the next morning to arrange for an X-ray and for any ongoing care which might be necessary.

Mr Wang went home to the flat that he shared with his friends. During the night Mr Wang started vomiting and convulsing and became unconscious. An ambulance was called and Mr Wang arrived back at Royal Prince Alfred Hospital by 4.00 a.m. and underwent surgery, but was left with irreversible brain damage.

Comment

Mr Wang’s case against the hospital was put on two alternative bases. Firstly, it was alleged that Nurse Carruthers’ examination was inadequate and superficial and that no notice was taken of his friends’ insistence that Mr Wang needed urgent attention, so that Mr Wang was not afforded the priority which he deserved. Alternatively, accepting that his priority was appropriately assessed, Nurse Carruthers should have consulted a doctor about him before she went off duty and Nurse Smith should have done so before the plaintiff left the hospital. In either event, it was said, some attempt should have been made to dissuade Mr Wang from leaving before he had been seen by a doctor.

The judge was critical of the actions of both nurses in the terms as expressed above — particularly Nurse Smith, who did not give any evidence. On the role of the triage nurse the judge made the following comment:

It is clear that Nurse Carruthers gave an oral report to Nurse Smith at the end of her shift. Mr Wang’s friends continued to request that he be seen by a doctor only to be met by the statement from Nurse Carruthers and Nurse Smith that the Emergency Department was busy and they would have to wait. Eventually one of Mr Wang’s friends, a Mr Ng, enquired as to whether they should seek treatment elsewhere. On that issue, the judge stated:

In considering the circumstances in which Mr Wang left the Emergency Department, the judge came to the conclusion that the Central Sydney Area Health Service was liable for Mr Wang’s permanent damage, because of the failure of the triage nurses in Royal Prince Alfred Hospital to properly observe him and advise him against leaving the hospital. In determining that liability the judge concluded:

The question as to whether Mr Wang and his friends would have accepted the advice to remain at the hospital if spoken to in those terms had to be determined. Mr Wang was unable to say because of his incapacity. The judge did consider the evidence of his friends who were with him on the night in question and came to the view, on that evidence, that he would have.

Facts

Mr McCabe was a 21-year-old man admitted to hospital for an emergency appendicectomy. Post-operatively he did not make the expected uneventful recovery. He could not keep food or fluids down, he developed diarrhoea and a spiking temperature pattern, and he complained of excessive abdominal pain. A chest X-ray and a microurine were ordered and proved negative. On the morning of the fifth post-operative day, which was a Saturday, the registrar was doing his rounds prior to going off duty but remaining on call at home over the weekend. The patient was still exhibiting the same symptoms. The registrar ordered a full blood count to be done that morning. The blood was taken and the result returned to the ward that afternoon after the registrar had left the hospital. The result disclosed a significantly raised white cell count and other abnormal readings indicative of some form of severe infection. The registered nurse on duty filed the pathology result in the appropriate place in the patient’s record and did not attempt to contact the registrar. Likewise, at no time during the weekend did the registrar ring the ward to ascertain Mr McCabe’s results. None of the other registered nurses who came on duty that weekend noticed the pathology result.

Not only were the nursing reports written separately from the medical officers, but the nursing staff who came and went over the weekend relied on the verbal handover report received at the commencement of each shift.

The result did not come to light until Monday afternoon when the patient’s condition was considerably worse. The patient was immediately placed on IV antibiotics and was subsequently returned to theatre for an exploratory operation and found to have widespread peritonitis. He died a few days later after succumbing to renal failure.

The young man’s mother sued the hospital and the hospital staff for negligence in the care of her son and sought compensation for loss of income dependence under the New South Wales Compensation to Relatives Act 1897 as well as nervous shock. On the basis of the facts as outlined above, and the evidence presented, the judge upheld Mrs McCabe’s claim against the hospital and staff. The hospital acknowledged their vicarious liability for the actions of the medical and nursing staff of the hospital at the outset of the case.

In arriving at his conclusion of negligence on the part of the hospital and its staff the judge saw fit to make critical comment on the accuracy and reliability of the medical and nursing notes particularly having regard to evidence given by other patients and Mr McCabe’s friends and relatives as to his deteriorating condition. The following extracts on this issue appear in His Honour’s judgement:

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