Provider denies it worked a nurse to death, but will court agree?
James M. Berklan
Long-term care workers, particularly nurses, might complain or even joke about it: I'm being worked to death. But now a dead nurse's family is testing such an assertion in court.
Legal experts aren't sure where how the chips are going to fall on this one. A judge is expected to make a key ruling in less than a month.
Although the case involves a 38-year-old nurse from a hospital bone marrow transplant unit, it is a situation that long-term care nurses and other shift workers can groggily identify with.
It pits the family of a nurse who was regularly asked to work extra hours and was heading home after a 12-hour shift against a hospital that vehemently denies responsibility for her driving off the road a year ago Sunday. It is a case that both employee and employer groups will be watching intently.
Next up is an April 10 court date when a Common Pleas Court judge is expected to rule on a defense motion to dismiss the lawsuit. Jewish Hospital of Cincinnati and its parent company, Mercy Health Partners of Southwest Ohio, seek the dismissal; the family of the late Elizabeth Jasper, RN, is suing, claiming that even her supervisor had commented that the job was wearing her down.
There are emotional heartstrings on all sides of this one. The day before her death, Jasper had accepted a job elsewhere, hoping to convert to a job that was less demanding of her time, her husband said. She is also survived by their two young children.
Whether or not the hospital was overworking its nurses in the face of a nursing shortage, or knew that it was, could be immaterial. Hospital attorneys maintain that the facility's responsibility ended when Jasper ended her shift and got in her car to go home. She was a specialist who was often called upon to work extra hours because few had her skill set, and staffing levels had been pared down, the lawsuit claims.
A legal nursing expert quoted in the February issue of The American Journal of Nursing noted that the court could rule against an employer if an accident were deemed foreseeable. The lawsuit claims Jasper's own supervisor had expressed worry that Jasper was being “worked to death.”
The AJN package makes thorough reference to other cases involving drowsy drivers and shift work. It also includes tips for nurses needing to find energy to stay awake,
One case cited in the AJR article told of a sleepy nurse who struck and killed two other people with her vehicle. The court deemed the nurse 75% responsible and the hospital that required extra work at the end of her 12-hour shift 25% responsible. Yet the provider wound up paying all of a $1.3 million award because it could afford it and the nurse-driver couldn't.
Ultimately, the legal expert said, a provider can expect to have its policies and practices put under a microscope when cases like these arise. Amounts of break time granted, driving distances after work and various accommodations could be among the things probed.
Both sides of this case are liable to be shifting on pins and needles as it winds its way through the legal system. Rightfully so. Interpretation of law in this area varies widely from jurisdiction to jurisdiction, making the outcome less than certain.
Moreover, the opponents in this one are in it not only for themselves, but also thousands of others who could be affected by the outcome at some point in the future.
It's almost enough to give long-term care providers and the nurses they assign to long, overnight shifts insomnia.
Jim Berklan is McKnight's Editor. Follow him @LTCEditorsDesk.