Applewhite v. Accuhealth, Inc.

81 A.D.3d 94, 915 N.Y.S.2d 223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2010
• Status: Published

Opinions

OPINION OF THE COURT

Mazzarelli, J.P.

Defendant Linda Russo is a registered nurse whose work is exclusively limited to the performance of home infusions of intravenous medication. On February 21, 1998, she visited the 12-year-old plaintiff at home to administer to her a dose of methylprednisolone (Solu-Medrol). Russo worked for Accuhealth, Inc., a company which specialized in home infusions.

Solu-Medrol had been prescribed by an opthamologist who was treating plaintiff for uveitis, a vision-threatening form of eye inflammation. The physician had ordered that the medication be given for three-day periods on consecutive months. The first month that the medication was administered was January 1998, and plaintiff accepted the infusion without incident. Russo performed the infusion, which takes approximately one hour, on one of the January days. Other nurses from Accuhealth covered the other two days. Although not entirely clear from the record, it does not appear that the physician who prescribed the Solu-Medrol worked for Accuhealth.

The incident in question occurred on the day that the February series of infusions began. When Russo arrived at plaintiffs apartment, the only medical equipment she had with her was a blood pressure cuff, a stethoscope and a one-way breather, which is used during cardiopulmonary resuscitation. All of the items which Russo would need for the infusion itself, such as needles, intravenous lines, the pole to support the bag of medication and the medication itself, had been delivered directly to plaintiffs apartment in anticipation of Russo’s visit. The infusion materials were shipped by Accuhealth, without Russo’s involvement.

Within seconds after the Solu-Medrol began to flow into plaintiffs veins, plaintiff complained that she could not breathe. Russo testified at her deposition that she was next to plaintiff at all times and immediately stopped the drip. She said she instructed plaintiffs mother, who was observing the infusion, to call 911 and tell the operator that her daughter was having difficulty breathing and to send an ambulance immediately. Plaintiff then began to have a seizure, and Russo directed her mother to bring her a spoon with padding around it. Russo used the spoon to force plaintiffs mouth open. She then inserted the one-way breather and began breathing into plaintiffs mouth through the device. Plaintiffs condition rapidly deteriorated and she went into full respiratory, and then cardiac, arrest. Russo claims that she lowered plaintiff from the sofa, where she had been situated at the beginning of the infusion process, to the floor, where she began to administer CPR until the arrival of emergency medical services personnel. Tragically, by the time emergency responders were able to stabilize her condition, plaintiff had suffered significant oxygen loss, which resulted in permanent brain damage, leaving her unable to eat, speak or communicate.

It is not in dispute that plaintiffs condition was caused by an allergic reaction to the Solu-Medrol, which caused her to go into anaphylactic shock. This is a known side effect of the drug. It is also not in dispute that epinephrine is a prescription drug commonly given to counteract the effects of those allergens that can cause anaphylactic shock. Russo did not have epinephrine with her on the day in question. She testified that epinephrine was not included in the box of supplies that Accuhealth had delivered to plaintiffs apartment before her arrival. She further stated that she would not have been permitted to carry epinephrine with her without a prescription.

Plaintiffs mother testified at her deposition that, when plaintiff first complained about having difficulty breathing, Russo was writing notes in the kitchen, approximately 20 feet from where plaintiff was situated in the living room. She stated that it took approximately one minute from the time she told Russo that plaintiff could not breath until Russo instructed her to call 911. She further contended that, after she brought the padded spoon to Russo and Russo commenced rescue breathing, Russo asked her to help place plaintiff in a lying position on the couch, not on the floor as Russo testified, where she performed CPR on plaintiff.

Plaintiffs commenced this action against Russo, Accuhealth, the City and its Emergency Medical Service.¹ As concerns Russo, plaintiffs’ bill of particulars alleged that she committed professional malpractice by, inter alia, failing to properly supervise and attend to plaintiff, failing to properly and immediately perform CPR on plaintiff, failing to personally advise the 911 operator of the nature of the emergency, and failing to have ensured that epinephrine was available to counteract the allergic reaction which caused plaintiffs anaphylaxis.

Russo moved for summary judgment to dismiss the complaint. She primarily relied on the expert affidavit of Anne Heuser, a registered nurse. Heuser opined that Russo, in each and every aspect of her treatment of plaintiff, acted “well within the standards of good and accepted nursing practice.” With respect to Russo’s failure to have epinephrine available with which to treat plaintiff, the entirety of Heuser’s opinion was as follows:

“Furthermore, Nurse Russo was not authorized to carry epinephrine or an Eppi pen without a specific order from a physician. Here, neither Dr. Weiss nor Dr. Ahuja ordered epinephrine for the infant Plaintiff. It would have been a violation of good and accepted nursing practices for Nurse Russo to somehow obtain epinephrine on her own and administer it to the infant plaintiff.”

In opposition to Russo’s motion, plaintiffs submitted two expert affidavits. One was from Lynn Hadaway, a registered nurse from Georgia who specializes, like Russo, in home infusion therapy. Hadaway attached to her affidavit the drug monograph for Solu-Medrol, which identifies anaphylaxis as a side effect, and advises those administering the drug to “keep epinephrine immediately available.” She concluded that Russo fell short of national standards for infusion therapy by failing to have the requisite knowledge about Solu-Medrol and failing to ensure the presence of epinephrine in plaintiffs’ apartment on the day in question. Finally, Hadaway rendered her opinion that Russo improperly administered CPR to plaintiff on the sofa, because CPR should be properly performed on a sturdy, rigid surface.

Plaintiffs’ second expert affirmation was from Michael Wajda, a medical doctor. Dr. Wajda stated that Russo was responsible for handling any complications caused by administration of Solu-Medrol to plaintiff. He stated that if Russo was not prepared to address any such eventualities on the day in question, including by not having epinephrine at her disposal, she was required not to perform the infusion. Dr. Wajda further stated that it was unclear to him whether Russo stopped the flow of Solu-Medrol immediately after plaintiff went into shock, and whether she began to give intravenous fluids to plaintiff at the same time as she did stop the medication. This infusion of liquids would have been critical, Dr. Wajda stated, to keep plaintiffs veins open to allow the maximum volume of blood to flow through them. Dr. Wajda also opined that Russo did not properly maintain plaintiffs airway.

Plaintiffs also questioned the qualifications of Heuser to act as an expert for Russo, since Heuser did not specialize in home infusion nursing. In reply, Russo submitted a supplemental affidavit from her expert, Heuser, in which she attempted to counter plaintiffs’ argument that she was not qualified to render an opinion in this case. While admitting that she did not specialize in home infusion nursing, Heuser stated that because, during her 19 years of nursing, she had worked in emergency rooms and in trauma centers, she was “more than qualified to comment on the treatment rendered by a home infusion nurse.” Supreme Court denied Russo’s motion. It found that questions of fact existed as to where Russo was at the time plaintiff first complained of trouble breathing and whether her location may have rendered her incapable of intervening quickly enough in case of an emergency. The court rejected Heuser’s affidavit, finding that her lack of experience as a home infusion nurse rendered her opinion meaningless in a case where the standard of care to be applied was that of a home infusion specialist and not a generalist. The court credited the affidavits of both Nurse Hadaway and Dr. Wajda, and expressly rejected Russo’s argument “that [p]laintiff falls short of defeating her entitlement to summary judgment because it is irrefutable that Nurse Russo had no authority to order or administer epinephrin [sic].”

Plaintiffs’ expert submissions raised triable issues as to whether Russo’s alleged failure, after the onset of plaintiffs reaction, to properly maintain plaintiffs airway, to flush the I\( to perform CPR on a rigid surface, and to ensure a prompt response from emergency medical services, contributed to the severity of plaintiffs brain injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Further, Russo failed to even shift the burden to plaintiffs on the issue of whether she breached a professional duty by administering Solu-Medrol without an available supply of epinephrine.

It is basic that the party moving for summary judgment has the burden of establishing the absence of any factual issues to entitle it to judgment as a matter of law. Here, it was Russo’s obligation to establish the absence of a departure from good and accepted practice (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, Heuser’s affidavit is completely silent regarding plaintiffs’ allegation that Russo had a duty to request a dose of epinephrine before beginning to infuse plaintiff with Solu-Medrol. As such, Heuser’s affidavit is insufficient to shift the burden to plaintiffs to submit evidence creating an issue of fact (see Wasserman v Carella, 307 AD2d 225, 226 [2003]). To the extent that Heuser states that Russo “acted in accordance with good and accepted nursing practices,” without addressing specific allegations, such bare conclusory statements are also insufficient (id.).

The concurrence has confused the parties’ respective burdens on a summary judgment motion by arguing that Russo should have been awarded summary judgment because plaintiffs failed to establish that it is common practice for Solu-Medrol infusion kits to include epinephrine. It ignores the fact that even Heuser’s affidavit, which the motion court correctly determined, in relevant part, lacked probative value, does not state that epinephrine is not ordinarily prescribed by physicians in conjunction with the administration of Solu-Medrol. Rather, it states only that Russo would have needed a specific order from a doctor. This statement is clearly insufficient to shift any burden to plaintiffs.

The statements in Heuser’s affidavit regarding Russo’s duty to secure epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, Heuser was not qualified to render such an opinion. We note that our review of this issue is limited to whether the court providently exercised its discretion, and that we will not disturb its determination “absent a serious mistake or an error of law” (Guzman v 4030 Bronx Blvd. Assoc. L.L.C., 54 AD3d 42, 49 [2008]). Here, the motion court was correct as Heuser did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience Heuser did purport to have was necessarily transferable to the issue of whether Russo should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other “foundation . . . tending to support the reliability of’ her opinion, the motion court properly rejected Heuser’s affidavit when considering the epinephrine issue (see Behar v Coren, 21 AD3d 1045, 1047 [2005], lv denied 6 NY3d 705 [2006]).²

Even if Heuser had succeeded in shifting her burden on the epinephrine issue, plaintiffs amply demonstrated the existence of an issue of fact. Plaintiffs do not contend, as Russo suggests, that Russo should have prescribed epinephrine herself or otherwise obtained it without the proper authorization. Rather, plaintiffs claim that Russo had a duty to inquire if epinephrine was available before she proceeded with the infusion. To impose such a duty on a nurse is not, as Russo also suggests, to grant the nurse a license to practice medicine. Rather, it recognizes the critical role of nurses as a check against medical error.

The Court of Appeals discussed the crucial job nurses perform in Bleiler v Bodnar (65 NY2d 65 [1985]). In Bleiler, the plaintiff suffered an eye injury at work and went to the emergency room the next day. An emergency room nurse and the supervising physician both separately took medical histories which failed to elicit information that would have led to proper treatment of the eye. The plaintiff sought to hold the hospital vicariously liable for the misconduct of the doctor and the nurse. The Court of Appeals had to consider whether the applicable statute of limitations was for negligence or for medical malpractice. In finding that the latter limitations period applied with respect to the conduct of both the doctor and the nurse, the Court observed that

“[w]hile courts have in the past held that a nurse could be liable for negligence, but not for malpractice, the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders” (65 NY2d at 71 [internal quotation marks and citations omitted]).

The court concluded that by not taking a proper medical history of the plaintiff, the nurse failed to carry out her “role as an integral part of the process of rendering medical treatment to a patient” (id. at 72).

Here, there is no evidence that the physician who prescribed the Solu-Medrol affirmatively decided that it was unnecessary to direct that epinephrine be included in the supply box that was delivered to plaintiffs’ apartment. Consequently, it cannot be said as a matter of law that Russo was simply carrying out a prescribed treatment plan. If, on the other hand, the physician’s failure to ensure the availability of epinephrine was an oversight, or the result of a mistaken assumption by the doctor that Accuhealth would independently procure an epinephrine prescription, Russo could have served as a critical backstop by assuring that epinephrine was available. After all, the injuries plaintiff suffered were a medically recognized consequence of the infusion. Again, the Court of Appeals in Bleiler identified one of the crucial roles of the modern professional nurse as that of one who “coordinates the delivery of a myriad of patient services” (65 NY2d at 71 [internal quotation marks and citation omitted]). Here, the allegation is that Russo failed in that role, and that her actions constituted those of “a passive, servile employee” {id. [internal quotation marks and citation omitted]) and not those of “an assertive, decisive health care provider” {id. [internal quotation marks and citation omitted]). Plaintiffs have certainly submitted sufficient evidence to require that a jury determine the issue.

Contrary to the concurrence’s claim, we are not suggesting that, in all cases, a professional registered nurse must “possess the.same knowledge of pharmaceuticals that we properly demand of those who are authorized to prescribe them.” Nor are we creating any new duty for registered professional nurses. Rather, our holding is informed by the fact that, in this case, as concerns the lack of epinephrine, plaintiffs’ allegation of malpractice does not depend on a finding that Russo should have taken extraordinary steps or made inquiry into an area of medicine that far exceeded the knowledge ordinarily expected of a nurse. To the contrary, the notion that a nurse should be aware of the importance of having epinephrine available when administering medication in the home setting is not a difficult one to embrace. After all, the fact that epinephrine is the antidote to anaphylaxis is widely known among laypeople. Indeed, many individuals who care for a child with severe allergies, or who have a spouse or partner prone to anaphylactic shock, are known to carry a dose of epinephrine in pockets and purses, regardless of their medical background.

Moreover, the administration of epinephrine is far from a radical procedure. Rather, the medicine is easily transportable in the form of auto-injector devices, commonly known as “epipens,” and apparently easily administered, as evidenced by the fact that the Legislature has expressly authorized summer camp personnel to use them (Public Health Law § 3000-c). This fact further undermines the already inconsequential statement by the concurrence that “[t]he monograph Hadaway cited, saying that epinephrine should always be available when Solu-Medrol is administered, does not establish that this recommendation has actually been followed in the general practice of home infusion therapy.” In other words, the idea of having a dose of epinephrine available in cases where, as here, a person may encounter a substance known to cause anaphylaxis is so obvious that common sense would seem to dictate that it be routine. Indeed, it is so intuitive, even to a layperson, that the antidote for anaphylaxis should accompany a medicine known to cause anaphylaxis, that lack of empirical proof that this “recommendation” is “followed” by the medical community should hardly compel the dismissal of the complaint. This is especially true in this case, where defendant has not offered any plausible reason why a physician would not prescribe epinephrine for use by a home infusion nurse if, in her role as “ coordinator of] the delivery of . . . patient services” (Bleiler, 65 NY2d at 71 [internal quotation marks and citation omitted]), the nurse suggested that it was medically indicated.

The concurrence invokes Education Law § 6902 in arguing that, by holding that Russo should have inquired into the availability of epinephrine, we are holding her to a standard in excess of what is required by statute. As conceded by the concurrence, however, the definition of the practice of the profession of nursing as a registered professional nurse, as provided by section 6902, “encompasses a wide variety of tasks,” including:

“diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens prescribed by a licensed physician, dentist or other licensed health care provider legally authorized under this title and in accordance with the commissioner’s regulations” (§ 6902 [1] [emphasis added]).

That this definition does not mention prescription medication is irrelevant to the issues in this case. Certainly that part of a registered professional nurse’s job which the Legislature has identified as the “provision of care supportive to or restorative of life and well-being” is broad enough to embrace inquiring into the availability of epinephrine during home infusions of medications known to cause anaphylaxis. Moreover, we note that the definition of “nurse practitioner” also does not include any mention of prescription medication (Education Law § 6902 [3] [a]). Although we recognize that nurse practitioners are separately authorized to prescribe medicine under certain circumstances (Education Law § 6902 [3] [b]), it is evident that these definitional sections were not intended to provide exhaustive descriptions of what nurses can and cannot do.

That a home infusion nurse live up to the standards established by the Court of Appeals in Bleiler is critical. Home infusion nurses work without the resources normally available in a medical office or hospital setting. The issue in this case is what steps must a nurse with no readily available support take to ensure that any and all reasonably foreseeable problems can be addressed so as to minimize patient harm. Nurses have become a crucial element in the provision of medical care. As recognized by the Court of Appeals in Bleiler, no longer are they automatons who operate by rote, but professionals who are expected to be proactive in their work, while always deferring to the reasonable directives of the doctors they work with. There is sufficient evidence in this record that Russo failed to comport herself in accordance with this more modern model of nursing, and that if she had, the disaster that befell plaintiff and her family could have been averted. Consequently, we find that the motion court correctly denied Russo summary judgment.

Accordingly, the order of the Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about October 29, 2009, which denied defendant Linda Russo’s mot11ion for summary judgment dismissing the complaint and all cross claims as against her, should be affirmed, without costs.

1 . Plaintiffs did not name the physician who prescribed the Solu-Medrol that Russo administered. Accuhealth, Inc. is no longer a party, having been dissolved in bankruptcy.

2 . We disagree with the court to the extent that it refused to consider those portions of Heuser’s affidavit which opine on such general nursing skills as the proper way to maintain an airway, to flush an IV and to perform CPR Heuser’s general nursing experience was sufficient to qualify her to discuss those basic nursing functions (Behar at 1046-1047). However, the court’s error is of no consequence because, as stated above, plaintiffs introduced sufficient evidence to create an issue of fact as to whether Russo properly performed those skills.