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Lane v. Provo Rehabilitation and Nursing

Court of Appeals of Utah

January 19, 2018

Shaunna Lane, individually and as the heir of Jackie Adams, deceased, Appellee and Cross-appellant,
v.
Provo Rehabilitation and Nursing, Appellant and Cross-appellee.

         Fourth District Court, Provo Department The Honorable Claudia Laycock No. 100404282

          Stephen T. Hester and Bradley M. Strassberg, Attorneys for Appellant and Cross-appellee.

          Bradley H. Parker, W. Alexander Evans, and James W. McConkie, Attorneys for Appellee and Cross-appellant.

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

          HARRIS, JUDGE.

         ¶1 While Jackie Adams was a resident at Provo Rehabilitation and Nursing (Provo Rehab), a residential nursing facility, a nurse (Nurse) mistakenly gave Adams doses of three potent narcotics that were prescribed for another patient. Nurse then compounded her mistake by not informing anyone about it, thereby depriving Adams of the opportunity to be administered medicine that would likely have reversed the effects of the overdose. Adams later died due to the physiological effects of the overdose. His heir (Plaintiff) filed suit against Provo Rehab and Nurse.

         ¶2 During the lawsuit, Provo Rehab conceded that Nurse was negligent in giving Adams the wrong medication, and conceded that it was vicariously liable for Nurse's initial mistake. However, Provo Rehab asserted that it was not responsible for Nurse's concealment of her mistake, and that Nurse's knowledge of her mistake could not be imputed to Provo Rehab. Based on these two contentions, Provo Rehab's main defense of the case was its claim that it was Nurse's concealment of her mistake, and not the mistake itself, that proximately caused Adams's death. During pretrial proceedings, the trial court agreed with Provo Rehab that knowledge of Nurse's mistake could not be imputed to Provo Rehab. Based partly on this ruling, the trial court approved a special verdict form that required the jury to decide whether Nurse was acting in the course and scope of her employment when she concealed her mistake, and then potentially to allocate fault as between Nurse's original mistake and her subsequent concealment of the mistake.

         ¶3 After a three-day trial, the jury determined that Nurse was not acting in the course and scope of her employment when she concealed her mistake, and that therefore Provo Rehab was not vicariously liable for her act of concealment. The jury determined that both Nurse's initial error and her subsequent concealment were causes of Adams's death, and allocated 65% of the fault to the initial medication error and 35% of the fault to the subsequent concealment. The jury also determined that Plaintiff's total damages were $1, 407, 210.68. The trial court later entered judgment against Provo Rehab for 65% of that amount, plus court costs.

         ¶4 Both parties appeal from this judgment. Plaintiff argues, among other things, that knowledge of Nurse's mistake should have been imputed to Provo Rehab, and that the jury should therefore never have been asked to apportion fault between Nurse's initial mistake and any concealment. Plaintiff asks us to vacate the judgment and remand for entry of judgment for the full amount of damages as determined by the jury. Provo Rehab, for its part, argues that Plaintiff failed to introduce sufficient evidence of causation, and that the trial court should have entered a directed verdict in favor of defendants. Provo Rehab asks us to vacate the judgment and remand for entry of a no-cause judgment.

         ¶5 For the reasons discussed herein, we conclude that knowledge of Nurse's medication error should have properly been imputed to her employer, Provo Rehab. It follows from this conclusion that there was no "concealment, " at least not from Provo Rehab, given that Provo Rehab is deemed to have known about the error from the outset, and that therefore the jury should not have been asked to apportion fault between the medication error and any concealment. It also follows from this conclusion that Plaintiff's evidence of proximate causation-that the initial medication error set in motion an unbroken chain of events that led to Adams's death-was easily sufficient. We therefore vacate the judgment, and remand this case to the trial court for entry of judgment for the full amount of damages as determined by the jury.

         BACKGROUND

         ¶6 On the evening of February 8, 2010, Nurse worked a six-hour swing shift as a licensed practical nurse at Provo Rehab, a residential nursing facility in Provo, Utah. During this time period, Nurse was one of Provo Rehab's many employees, and worked occasional shifts as a nurse there. On one previous occasion, Nurse had been involved in an incident in which one narcotic pill ended up unaccounted for at the end of her shift, and Nurse was informed that if something like that ever happened again, she would be terminated.

         ¶7 By February 2010, Adams had resided at, and been under the care of, Provo Rehab for approximately eleven months. He was in his early seventies and had been suffering from a number of medical conditions, including congestive heart failure, diabetes, and obesity, and had been having a hard time at home. He and his family had hoped that, during his stay at Provo Rehab, he could "get stronger" and "get his weight under control."

         ¶8 Upon arriving at work on February 8, 2010, Nurse consulted an assignment board and learned that she would spend the evening attending to the residents in the hallway in which Adams resided. Part of her job as a nurse was to "pass medication" to the residents in the hall to which she was assigned. These duties included ascertaining which medications were prescribed for which resident, gathering those medications, and administering them timely and in the manner prescribed. If the medication consisted of pills, her duties also included actually counting the pills to make sure that she administered the correct dosages.

         ¶9 On the evening in question, Nurse began a "medication pass" at about 8:00 p.m., in which she proceeded down her hallway with a movable cart containing the medications she would need to administer. In the course of this "medication pass, " Nurse made a crucial mistake: she mixed up Adams's identity with another resident's. When she arrived at Adams's room, she erroneously assumed that another resident, and not Adams, resided there. Based on that mistaken assumption, she prepared the other resident's medications in a "cup of pills" and gave them to Adams, who inquired as to whether his "as-needed" pain medications were in the cup. Both Adams and the other resident had been prescribed pain medications to be administered on an as-needed basis, but the prescribed pain medications were not the same. Nurse told Adams that his pain medications were not in the cup, and Adams asked that he be given some. Nurse returned to her cart and retrieved the pain medications-three narcotics of varying dosages for which Adams did not have a prescription-that had been prescribed for the other resident, and added them to the cup. Adams took all of the pills in the cup.[1]

         ¶10 A few minutes later, as she was completing her "medication pass" through the hallway, Nurse noticed that the other resident's name appeared on the door of a different room than the one in which Adams resided. Nurse soon deduced that she had mistakenly provided the other patient's medications to Adams. She also realized that Adams was diabetic, and the other resident was not, so she returned to Adams's room to administer insulin to him. Adams was still awake and lucid at this point, as the narcotics had not yet had time to metabolize. In the course of administering to Adams his diabetes medication, she did not inform him that she had given him the wrong pain medications.

         ¶11 Over the course of the rest of her shift, Nurse decided to conceal her mistake. She proceeded into the other resident's room and administered to him the narcotics that had been prescribed for Adams. She also checked on Adams "at least twice" over the course of the rest of her shift, and nothing appeared acutely amiss. Before her shift ended, Nurse falsified the medical records so that they indicated that both Adams and the other resident had been given their proper medications. Nurse testified that, at the time, she did not think administering the incorrect medications would cause harm to either Adams or the other resident. In addition, Nurse testified that, given her past employment history including the previous lost-pill incident, she was concerned that she might be terminated if she informed anyone of her mistake. Nurse's shift ended around midnight, and she informed no one of the Medication Error before completing her shift.[2]

         ¶12 The three narcotics that Nurse mistakenly administered to Adams were morphine, hydromorphone, and oxycodone, three "very potent" opioids. By contrast, the only pain medications for which Adams had a prescription-and which he should have been given-were Neurontin, which is not an opioid, and Norco, a less-potent opioid similar to Lortab. Individuals who are not conditioned to taking strong opioid medications are more prone to suffer acute negative effects, including respiratory depression and cardiac arrest. Because Adams had not been prescribed these three potent opioid medications, both parties' experts agreed that he was not conditioned to them. Indeed, one expert referred to Adams as an "opiate-naïve" individual who was more likely than others to suffer negative effects from a mistaken overdose of narcotics.

         ¶13 However, even unconditioned individuals who have taken an overdose of narcotics can be administered another medication-known generically as naloxone-which, if timely administered, will almost always reverse even severe physiological effects of a narcotics overdose. Neither side disputes the fact that Nurse's decision to conceal the Medication Error deprived Adams of an opportunity to be saved from the Medication Error through the timely administration of naloxone.

         ¶14 At approximately 5:45 a.m. the next morning, Adams was discovered "not breathing" and "unresponsive." He had no pulse. At that point, Adams was taken to a hospital but, despite aggressive treatment, he died two days later without ever regaining consciousness.

         ¶15 Plaintiff filed suit against Provo Rehab and Nurse, [3]alleging that both Provo Rehab and Nurse owed Plaintiff a duty of care and that both defendants breached that duty, causing Adams's death and Plaintiff's damages. Plaintiff also brought claims against Provo Rehab and Nurse under the wrongful death statute and the survival statute. During pretrial proceedings, Provo Rehab conceded that Nurse acted negligently by committing the Medication Error, and further conceded that it was vicariously liable for Nurse's actions in committing the Medication Error, because Nurse was clearly acting in the course and scope of her employment in administering the medications. However, Provo Rehab took the position that Nurse was not acting in the course and scope of her employment when she chose to conceal the Medication Error from Adams and from her superiors, and contended that it was therefore not vicariously liable for Nurse's Concealment.

         ¶16 Plaintiff responded to this defense by asking the trial court to determine, as a matter of law, that knowledge of Nurse's Medication Error was imputed to Provo Rehab, because Nurse committed the Medication Error during the course and scope of her employment with Provo Rehab, and therefore Provo Rehab had knowledge of the Medication Error pursuant to principles of agency law. Plaintiff argued that, if knowledge of the Medication Error was imputed to Provo Rehab at the moment it occurred, there could not have been any "concealment, " at least not from Provo Rehab. Had the trial court granted this motion, it would have prevented Provo Rehab from pursuing any defense based on Nurse's Concealment. Indeed, at oral argument before this court, Provo Rehab conceded that, if knowledge of the Medication Error is imputed to it, it effectively has no defense to Plaintiff's lawsuit. The trial court denied the motion, however, effectively allowing Provo Rehab's concealment defense to continue.[4]

         ¶17 The trial court also approved the use of a special verdict form that contained seven questions. First, the jury was asked to determine whether Nurse was "acting in the course and scope of her employment . . . when she concealed her medication error." Next, in two questions, the jury was asked to determine, in turn, whether the Medication Error and the Concealment were "a cause" of Adams's death. After that, the jury was asked, in two questions, to apportion fault between the Medication Error and the ...


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