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  • Writer's pictureW. Cory Reiss

Nursing profession evolves, but malpractice claims are frozen in time.

Time marches on, inventions change the world, and entire professions are born and go extinct.

But law is stubborn by design.

The North Carolina Court of Appeals recently hinted it might be time to alter a significant body of medical malpractice law but couldn’t even consider it because the state Supreme Court decided the issue almost 100 years ago.

The state Supreme Court ruled in 1932 that no nurse can be liable for medically negligent treatment decisions. Back then, hospitals used something called a “sweat machine” to treat people suffering from convulsions. It was a metal box filled with light bulbs that a person would lie in up to the neck. In that case, a patient showed up at a private hospital on a doctor’s orders and a nurse put her in the box, which caused severe burns after a few hours. The family sued the nurse for participating in the decision to put her in the box and leave her there.

Think of the “sweat machine” as the electric version of bleeding with leeches. Neither treatment is in vogue anymore.

But a century later, a certified nurse anesthetist employed by a North Carolina hospital participated in treatment decisions involving a young girl with a heart problem, which allegedly put her into cardiac arrest, leading to severe brain damage. The Court of Appeals had to face facts: Nursing in the 21st Century isn’t like nursing in 1932, when nurses were seen as mere assistants or “appendages” to doctors rather than highly trained, specialized, and in this case certified practitioners that many have become.

The Court of Appeals admitted that the girl’s family “presented many detailed policy arguments for why the time has come to depart from” the decision in Byrd v. Marion General Hospital, but it lacked the authority to consider them because it must follow the Supreme Court’s precedent.

What a difference a century can make in medicine, but not always in our law about the practice of medicine.

The result also highlights some continued protection for hospitals: if the nurse can’t be liable, then the hospital that employed her couldn’t be liable either. A hospital is not liable for negligence unless a patient can show injury from its agents or employees, such as nurses, and most doctors operating in hospitals are employed by third-party practices.

Hospitals are often responsible for employee negligence, for example with errors administering medication, but the question raised here is whether increasingly independent nurses participating in treatment decisions with doctors should share the blame if those treatment decisions breach the standard of care.

For now, the answer remains no, but the Supreme Court may be asked to get with the times.

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