Metropolitan News-Enterprise


Monday, November 17, 2008


Page 3


Court of Appeal Upholds Lifting of Nurse’s License for Negligence


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal upheld the revocation of a local nurse’s license for gross negligence and incompetence, based on her refusal to comply with a doctor’s orders regarding a patient in respiratory distress.

Div. Eight ruled Thursday that substantial evidence supported the Board of Registered Nursing’s conclusion that Ellen Finnerty, a registered nurse with over 20 years of experience, engaged in conduct which constituted a failure to provide care or to exercise ordinary precaution in a situation which she knew, or should have known, could have jeopardized her patient’s health or life.

The uncontested evidence was that Finnerty was responsible for monitoring the condition of a 55-year-old man with Down syndrome and multiple illnesses at Huntington Memorial Hospital in Pasadena.

When the patient began having trouble breathing, the patient’s primary care physician ordered that the patient be intubated and transferred to the intensive care unit.

An intern and Finnerty both came to the patient’s room and examined the patient. The intern concluded that the patient was too unstable to be transported without securing his airway and paged the on-duty resident.

When the resident arrived, according to testimony, Finnerty was preparing the patient for transport to the ICU. The resident announced that the patient needed to be intubated immediately and sent for the necessary equipment.

Finnerty told the resident that she could not intubate the patient where they were. Even though the resident, according to testimony, repeated her intention to immediately intubate the patient, Finnerty took the patient to the ICU, which was on another floor of the hospital, without any device for monitoring his cardiac status or vital signs. The trip took approximately five minutes.

The patient was intubated after arriving at the ICU, but died about 30 minutes later. There was no evidence that the delay in intubation caused or contributed to the patient’s death.

Finnerty later wrote a report stating that she had countermanded the resident’s orders because the equipment and staff were not adequate. She claimed that the patient was “viable at the time,” and that intubation was not necessary.

A few days after the incident, the hospital terminated Finnerty’s employment for “gross negligence – failure to follow direction from treating physician.”

Finnerty noted her disagreement with the hospital’s finding “due to the lack of a direct order to me by the physician to do or not do anything and the knowledge that the patient was transported to ICU faster than a code team could have come to the room.” 

She filed suit against the hospital, but the hospital settled her claims by canceling Finnerty’s termination in exchange for her agreement to resign. Finnerty, who who was placed on probation after the board stayed the revocation, is currently employed at Glendale Adventist Medical Center.

 The Board of Registered Nursing filed an accusation in connection with the incident, alleging unprofessional conduct and gross negligence and incompetence and seeking the revocation or suspension of Finnerty’s license. 

Finnerty submitted a declaration stating that she had “reason to doubt, very seriously” the resident’s ability to successfully intubate the patient and that the criteria for intubation were not fully met. But at a hearing before an administrative law judge, Finnerty conceded that the patient needed to be intubated.

The ALJ concluded there was clear and convincing evidence of gross negligence and incompetence. He specifically found that Finnerty lacked credibility, failed to work collaboratively with the doctors, and usurped the responsibility and decision-making authority of the doctors without effectively communicating any concerns she may have had.

The board adopted the ALJ’s decision, revoked Finnerty’s license, stayed the revocation and placed Finnerty on probation for three years. Finnerty then petitioned for a writ of administrative mandamus.

Finding the weight of the evidence supported the finding that Finnerty’s conduct was grossly negligent and/or incompetent, Los Angeles Superior Court Judge Dzintra Janavs, since retired, denied the writ.

Finnerty appealed, contending that she was required to act as the patient’s advocate by taking him to the ICU for intubation, rather than permitting intubation to take place in an environment that was not equipped for intubation. She also contended that insufficient evidence supported the findings that her conduct constituted gross negligence or incompetence.

Writing for the appellate court, Presiding Justice Candace Cooper explained that when a trial court rules on a petition for writ of mandate following a license revocation, it must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision. Appellate review of the trial court’s ruling is limited to determining whether credible, competent evidence supported the trial court’s judgment.

Although Cooper acknowledged that there can be circumstances justifying a nurse’s refusal to follow a doctor’s order that is inaccurate or unsafe, Cooper reasoned, where, as here, “the question whether the physician’s order was inaccurate or unsafe, or against the interests of the patient, has been resolved in favor of the physician, not the nurse who countermanded it,” a nurse cannot substitute her clinical judgment for that of doctor.

Because the record showed substantial support for the trial court’s conclusion that the weight of the evidence supported the board’s finding, Cooper, joined by Justices Laurence D. Rubin and Patricia A. Bigelow, affirmed the trial court’s ruling.

Wrightwood attorney Phyllis M. Gallagher represented Finnerty and would not accept a call from the MetNews Friday. Deputy Attorneys General Karen B. Chappelle, Marc D. Greenbaum, and Rene Judkiewicz represented the board.

Judkiewicz opined that the court’s decision “emphasized that it is important to apply the substantial evidence standard of review,” and that the court could not “second-guess” the trial court.

She explained that the court found under there particular facts, substantial evidence supported the doctors’ decisions and the nurse’s duty to advocate did not override the doctor’s orders.

The case is Finnerty v. Board of Registered Nursing, 08 S.O.S. 6160.


Copyright 2008, Metropolitan News Company