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A nurse began choking and was not offered any assistance by the charge nurse who was right there. Does she have any recourse in this situation?

Monday February 11, 2013
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Question:

Dear Nancy,

I have a close friend who I used to work with at an assisted living facility. She is still employed there. She was having lunch and began choking on a piece of food. The charge nurse for the shift was right there, but failed to render any assistance whatsoever because she dislikes her for some reason. She choked hard enough that she aspirated and her nose began to bleed. Still, the other nurse did not provide any assistance, just waited for the situation to fix itself and gave her a glass of water. There should have been an incident report filed, but there was not. My friend is still experiencing voice loss and was called into the administrator’s office and told she just needed to quit. She is 65 years old and a full-time employee, but agreed to go part time. She is no longer working in a nursing capacity and has kitchen and hospitality duties. She keeps all of her nursing certifications current. The administration felt since she had more experience as a nurse that she, instead of the charge nurse, should have filed the paperwork, as well as sent herself to the hospital after this incident. I assume since the charge nurse is responsible for everyone in the facility during her assigned shift, this includes employees. It is a small facility that normally has four employees on duty during a shift. Two of them have kitchen and hospitality duties. When I worked there as the charge nurse, I was told I was responsible for everything that occurred during my shift. What, if any recourse does my friend have?

Briana



Nancy Brent replies:

Dear Briana,

The situation you describe is quite disconcerting generally and specifically the conduct of the nurse who was with your friend when she was choking. However, be that as it may, your friend should contact an nurse attorney or attorney in the state to determine if this injury, the loss of her voice and any other connected health problems can be covered under workers’ compensation. She should contact an attorney who concentrates his or her practice in this area of the law. Workers' compensation would be the only recourse she could have against the employer.

As for the nurse who was with your friend during the incident and did nothing, the question will be what her duty was in the situation. Since she is not the employer, a civil suit might be possible against her for your friend's injuries, but your state’s law and case decisions would govern that.

In addition, a report to the state board of nursing might be possible against the nurse who did nothing while your friend was choking. This again would depend on many factors, such as what the nurse practice act and rules say about this kind of situation (e.g., unprofessional conduct) or if a legal duty exists to aid someone in an emergency situation.

These situations would be best evaluated by an attorney who works with nurses in the area of regulatory law or an attorney who does personal injury work. The workers' compensation lawyer may have colleagues who work in these areas and can provide a referral.

Your friend should seek legal advice as soon as possible so as not to let any statute of limitations run out, including the possible workers' compensation claim.

Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.