Is Nurse Who Refused to Perform CPR Liable for Woman’s Death?

 

On February 26, 2013, Lorraine Bayless collapsed in the dining room of Glenwood Gardens, an independent living home in California. When Bayless collapsed, a nurse at the facility called 911. The nurse was on the telephone with the 911 operator for seven minutes and 16 seconds, during which time the dispatcher pleaded with the nurse to perform CPR on the dying woman. The dispatcher reportedly said, “As a human being… is there anybody that’s willing to help this lady and not let her die?” The nurse’s response to this plea from the dispatcher was, “Not at this time.”

“Media reports of this seemingly preventable death elicited public outrage,” explained California personal injury lawyer James Ballidis, “as well as questions concerning the facility and the nurse’s duty to save the woman.”

No one was willing to perform CPR on Bayless because it was against the facility’s policy. Bayless reportedly was aware of and signed a contract agreeing to the policy when she moved in. However, she did not have a Do Not Resuscitate, or DNR, in place dictating her wishes for emergency lifesaving treatment, such as CPR.

Why The Nurse Refused to Perform CPR

The nurse’s refusal to perform CPR and the independent living facility’s policy aimed to provide legal protection for the facility.

Independent living facilities are different from nursing homes and there is no law requiring the staff to provide active emergency nursing care to patients. There is also no general duty to aid in California outside of certain limited exceptions.

While a nursing home would typically have a special relationship that would require employees to render medical assistance to a patient because the patient lives there in order to receive medical care, there is no such relationship guaranteed in every independent living home. Just as a landlord would not necessarily be required to provide CPR to a tenant, medical staff at an independent living facility would not necessarily have to provide medical assistance to a resident, particularly when a policy says that the home will not provide such care.

When the facility specifically outlines a policy stating that its employees will not perform CPR, residents agree to and can become bound by that agreement. In fact, residents may count on this agreement and expect that they will not receive life-saving care from the staff where they live.

Further, if medical staff attempts to perform CPR in their official capacity as medical providers, they could potentially become liable if they are found to have performed the life-saving procedure in a negligent or inadequate way. While there are Good Samaritan laws in place to protect bystanders who try to help in an emergency, it is questionable about how these laws would apply to a medical professional in this type of situation. Moreover, Good Samaritan laws have also been successfully challenged in the past to impose responsibility.

By performing CPR, the nurse would have been putting the home at risk of being sued and would have been violating the contractual agreement that the facility had with Bayless.

Bayless’ daughter supports the nurse’s decision, indicating that she and her mother were aware of the no CPR policy and that she was happy with the care her mother received. Following an investigation, it was also determined that no laws were broken and that no charges would be filed.

Should The Nurse Have Performed CPR?

While the nurse may have had valid reasons for refusing to perform CPR, some argue that she acted immorally, unethically or even negligently in the eyes of the law.

Pat McGinnis, the founder of the California Advocates for Nursing Home Reform, was quoted in The Huffington Post as saying that independent living facilities “should not have a policy that says you can stand there and watch somebody die.”

A spokesman for the California Board of Registered Nursing also indicated that nurses who have appropriate training and who are working as nurses should provide required medial care whenever possible.

It could also be argued that the nurse had a legal obligation to the patient, despite the written policy. The law has found that a legal duty exists to attempt rescue when special circumstances are present, especially when a person in peril is dependent upon the person who failed to rescue. For example, past cases have found homeowners responsible for failure to help houseguests who fell ill or who overdosed on drugs in their home.

In this case, the patient was dependent upon the nurse for help, and a special relationship existed between them because the woman was living in the facility under the supervision of facility staff. Again, however, it could be argued that the nurse did come to her aid by calling 911 and that this was sufficient to fulfill any obligation she might have had, especially in light of the written agreement detailing that no CPR would be performed.

Because Bayless’ daughter is satisfied with the care provided, no lawsuit will be forthcoming. The independent living facility has also said the nurse followed protocol, and the police have indicated that there will be no criminal charges filed. In this case, therefore, the nurse will not face any consequence for what some may see as her failure to save a life.

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