First Department Expands Scope Of Nurse's Duty

In Applewhite v. Accuhealth, Inc., the defendant was a registered nurse whose work was exclusively limited to home infusions of intravenous medication. During an infusion of a twelve year old girl at her home, the plaintiff had an allergic reaction to the medication causing her to go into anaphylactic shock. The nurse instructed the mother to call for an ambulance and then began CPR with a one-way breather she had brought with her. The plaintiff, however, rapidly deteriorated going into full cardiac arrest and by the time assistance arrived she had suffered oxygen loss and permanent brain damage. It was undisputed that epinephrine is commonly given to counteract the effects of the allergens that cause shock. The nurse, however, did not have epinephrine with her, it was not prescribed by the physician and was not shipped by her employer to the plaintiff’s house along with the other medical equipment that had been shipped there.

At issue was the scope of the nurse’s duty. While the panel agreed that questions of fact were presented as to whether the nurse did not properly handle the plaintiff's anaphylactic reaction, such as in the manner and position in which she provided CPR, they split as to the nurse's duty with respect to the epinephrine. The majority held that the nurse should have been proactive and inquired with the physician as to whether epinephrine was available. According to the majority, this was part of a nurses “critical role” “as a check against medical error.” The dissent argued that the majority’s ruling constituted a new “duty to inquire” and that nurses would now need to supervise doctors and the prescriptions they provide or do not provide. In September, we published an article in the New York Law Journal, entitled “Defining the Duty of a Physician” discussing the need for the courts to clarify how to determine the scope of a physician’s duty. Those same principles should have applied to this case.