In the case of a nurse disciplined for contributing to the death of a hospital patient, the Supreme Court of Ohio held February 23 that a hearing examiner’s denial of the nurse’s subpoena of several other patients’ medical records was not so arbitrary as to constitute an abuse of discretion or denial of due process (Clayton v. Ohio Board of Nursing).
However, the 4-3 decision upholding a 2014 ruling of the Court of Appeals was notable in that two of three dissenting justices, referring to the “chaotic” situation at the hospital that evening, raised a question about whether, as the nurse alleged, a “failure of process” and not the nurse’s individual fault was to blame for the errors.
A licensee is entitled to “fairly wide latitude” in making such a defense, the dissenters argued.
The nurse, Beverly Clayton, was on staff at the intensive-care unit at Mercy Hospital Western Hills since 2008. In August 2009, an elderly patient with numerous health problems, “R.B.,” came to the emergency room of the hospital, complaining of shortness of breath.
Instead of consulting the notes from the admitting doctor, Clayton relied on information entered by a hospital pharmacist into Mercy’s computer system regarding the patient’s care. In contravention of the doctor’s orders, Clayton administered a saline drip, and failed to administer drugs ordered by the doctor.
Unfortunately, the information entered by the pharmacist into the system was both incorrect and incomplete. The computer system showed a different dose of a drug, Cardizem, than had been directed by the admitting physician, and did not contain any information about several of the doctor’s orders, such as an order to prohibit the administration of saline via an intravenous drip.
As a result, Clayton failed to follow the admitting doctor’s orders in several respects. On top of this problem, after the patient’s condition worsened as a result of her actions, Clayton waited an unusual amount of time to notify a physician. The patient died the next day. Clayton was told there would be an investigation, she was suspended without pay, and she immediately resigned.
Disciplinary charges against Clayton followed. Although Clayton claimed that the doctor’s notes had been missing from the patient’s chart and that another doctor had ordered the administration of saline, investigators testified that Clayton had told them she did not have time to read the chart and no written order from another doctor for saline administration was found to exist. Further, expert witnesses testified that, if Clayton could not find the admitting doctor’s orders, she was obligated to call the doctor.
After a hearing, the board suspended Clayton’s license indefinitely and placed conditions on her application for reinstatement. On appeal, a trial court affirmed the order, as did the Court of Appeals of Ohio.
In her defense, Clayton asserted that “other ICU patients’ records were necessary to establish extenuating circumstances surrounding her ability to care for R.B.,” the court said.
The nurse’s subpoenaed document list was long. During prehearing proceedings, she requested all hospital records associated with the patient, any pharmacy records and communications associated with the patient, the personal contact information and employment files of all hospital employees and supervisors with any association with the patient’s admission or treatment at the hospital, her own complete personnel file, personnel files of all nurses working at the ICU during the shift in question, and finally, the complete medical charts of all patients who received treatment at the ICU at any point during that shift.
The hearing examiner found that those other medical records were likely irrelevant, beyond the scope of the charge against Clayton, and outweighed by privacy and confidentiality protections.
Clayton made several arguments in that appeal. Specifically relating to the subpoena issue, she charged that the hearing examiner in her discipline case had erred by refusing her request to subpoena the medical records of other patients in her unit during the shift in question.
The appeals court found that the hearing examiner, who had rejected Clayton’s subpoena request in order to protect the confidentiality of the other patients, afforded Clayton adequate opportunity to obtain the same information via the testimony of other nurses on shift at the time, and that was sufficient.
Clayton’s reliance on the erroneous entries in the hospital’s computer system did not justify her behavior, the court said, because the standard of care required her to locate the doctor’s orders.
When Clayton again appealed, the Ohio Supreme Court initially declined jurisdiction, but on reconsideration accepted the appeal on one proposition of law: Clayton’s contention that a nurse subject to disciplinary proceedings has the right to the issuance of subpoenas for evidence that is purportedly material to the nurse’s defense.
The high court noted that hearings are “a necessary incident to administrative agencies’ licensure powers” and agencies must have at least some minimal authority to control those hearings. So there was no question whether the hearing examiner lacked discretion to rule on the subpoenas.
Was the decision to deny the subpoenas arbitrary? “Regardless of whether we would have struck the balance differently,” the court said, “we cannot say that the hearing examiner’s decision was so irrational that it was an abuse of discretion or so capricious that it violated Clayton’s procedural due-process rights.”
However, dissenting judges cited testimony that the case concerned an unusually chaotic night in the ICU. Clayton’s expert witness described the situation. “I believe that it was an absolutely insane night the entire night. However, without the other documentation that we requested, we don’t have anything that says we had to run over here. There’s another rapid response, here’s another admission, here’s another admission, here’s another admission. I believe that kind of thing went on that entire time.”
Dissenting Judge Paul E. Pfeifer, joined by another judge, argued that Clayton’s loss of her license for a year was a crushing sanction, and that a person fighting to maintain her right to keep practicing is entitled to “fairly wide latitude in seeking documentary evidence to support her defense.”
“Was patient R.B.’s death the result of the failure of Beverly Clayton or a larger, systemic failure at Mercy Hospital Western Hills? It is easy to blame the nurse; she made mistakes. But Clayton lost the opportunity at her hearing to demonstrate effectively that her own mistakes were the natural result of a failure of process at Mercy Hospital. I would hold that the hearing officer erred in quashing Clayton’s subpoena for records of other patients in the intensive care unit on the night of R.B.’s death and that that error was prejudicial,” Pfeifer wrote in his dissent.