Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-24T02:26:34.910Z Has data issue: false hasContentIssue false
  • English
  • Français

The Liability of the Occupational Health Nurse

Published online by Cambridge University Press:  27 April 2021

Elizabeth A. Bowyer
Get access Rights & Permissions [Opens in a new window]

Extract

Occupational health nurses exercise their professional skills in positions of enormous responsibility. An occupational health nurse works in industry or business, either alone or as part of a team, to ensure workers’ health and safety. Management is ultimately responsible for providing a safe and healthful work environment, and employs nurses and other professionals to provide health services for workers and to meet the mandates of the Occupational Health and Safety Act of 1970, which has imposed many responsibilities on employers and occupational health professionals.

Highly specialized professional nurses in recent years have gained recognition of their expanded responsibility, autonomy, and accountability. At the same time, an increased number of nurses have been named individually as defendants in negligence or malpractice actions. Occupational health nurses may become particularly vulnerable to a disproportionate number of malpractice suits, as a result of factors ranging from the independent setting in which occupational nurses work to the interplay of laws affecting workers and employers.

Type
NLE Rounds
Information
Law, Medicine and Healthcare , Volume 11 , Issue 5 , October 1983 , pp. 224 - 238
Copyright
Copyright © American Society of Law, Medicine and Ethics 1983

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Occupational Health and Safety Act of 1970, 29 U.S.C. ch. 15 §§651-677 (1976 and Supp. V 1981).Google Scholar
See generally Mancini, M., The Law and the Occupational Health Nurse, American Journal of Nursing 79(9): 1628 (September 1979); Walker, D.J., Nursing 1980: New Responsibility, New Liability, Trial 16(12):43 (December 1980); Hirsch, H.L., On Law and Medicine: The Courts have a New View of Nursing, American College of Physicians Observer 1(8): 2, 10 (August 1981).Google ScholarPubMed
See Brown, M.L., Occupational Health Nursing: Principles and Practices (Springer Publishing Co., New York) (1981) at 28-29; Babbitz, M.A., The Practice of Occupational Health Nursing in the United States, Occupational Health Nursing 31(6): 23, 24 (June 1983).Google Scholar
Id.Google Scholar
See, e.g., Fraijo v. Hartland Hosp., 160 Cal. Rptr. 246 (Cal. App. 1979) (recognizing that standard medical practice permits physicians to confer upon nurses, in certain situations, the exercise of independent judgment).Google Scholar
Prosser, W., Handbook of the Law of Torts (West Publishing Co., St. Paul) (4th ed. 1971) at 151 (reasonable man standard), 161 (reasonable professional standard).Google Scholar
See, e.g., Cooper v. National Motor Bearing Co., 288 P.2d 581 (Cal. 1955).Google Scholar
See, e.g., Wilmington Gen. Hosp. v. Manlove, 174 A.2d 135, 140 (Del. 1961). In affirming a summary judgment for the defendant hospital, the court discussed the duty of a nurse to one seeking emergency room admission. The hospital was not liable in this wrongful death suit because the emergency room nurse made an honest decision that there was no unmistakable indication of an emergency, and because this decision was not unreasonable in light of the nurse's training.Google Scholar
Brown, supra note 3.Google Scholar
Cooper v. National Motor Bearing Co., supra note 7.Google Scholar
Id. at 587.Google Scholar
See Brown, supra note 3, at 6-7.Google Scholar
Bruce, J.A. Snyder, M.E., The Right and Responsibility to Diagnose, American Journal of Nursing 82(4):645 (April 1982).Google Scholar
Id.Google Scholar
See Mancini, supra note 2, at 1628; Rozofsky, L.E., Warning, Legally Unsafe: 6 Common Nursing Practices You Should Avoid, Nursing Life 1(2):46, 49 (September/October 1981).Google Scholar
Fiesta, J., The Law & Liability: A Guide for Nurses (John Wiley and Sons, New York) (1983) at 28.Google Scholar
Prosser, supra note 6, at 458.Google Scholar
Id. at 460.Google Scholar
Id. at 467-68.Google Scholar
Id. at 467.Google Scholar
Larson, A., Workmen's Compensation for Occupational Injuries and Death (Matthew Bender & Co., New York) (Desk ed. 1983 & Supp. April 1983) at §1.00.Google Scholar
Id. at §72.00.Google Scholar
Id. at §72.10 (employer alone immune in Alabama, Arizona, Minnesota, Missouri, Nebraska, Rhode Island, South Dakota, Vermont, and under Federal Employees Compensation Act).Google Scholar
Id at §72.21 (all states except those named, supra note 23).Google Scholar
See id. at §72.31.Google Scholar
Id.Google Scholar
See Cushing, M., An Occupational Nurse's Liability, American Journal of Nursing 81(12): 2207, 2208 (December 1981).Google ScholarPubMed
Id. This article does not address the issue of workers’ right to know, and the resulting impact on confidentiality of records.Google Scholar
See, e.g., Horne v. Patton, 287 So. 2d 824, 830 (Ala. 1973). See generally Brown, supra note 3, at 83.Google Scholar
See, e.g., Horne v. Patton, supra note 29, at 830, 832; Hammond v. Aetna Casualty & Surety Co., 237 F. Supp. 92, 101, motion for reconsideration denied, 243 F. Supp. 793, 799–801 (N.D. Ohio 1965). But see Clarke v. Geraci, 208 N.Y.S.2d 564, 567 (N.Y. 1960) (physician not liable for damages; unauthorized release was warranted).Google Scholar
Horne v. Patton, supra note 29.Google Scholar
Id.Google Scholar
Id. at 825.Google Scholar
Id. at 830-31.Google Scholar
Id. at 832.Google Scholar
Betesh v. United States, 400 F. Supp. 238, 246 (D.D.C. 1974), citing Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229, 232–33 (6th Cir. 1956). In Betesh, a widow sued because her husband was not advised that his armed forces induction physical was failed because of an abnormal chest x-ray; he had assumed his rejection was due to a knee injury. Chest x-ray follow-up would have revealed Hodgkin's disease in an early, curable stage. When discovered, it was incurable.Google Scholar
Betesh v. United States, supra note 36, at 247. See James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980) (employer breached duty of due care when physician did not see applicant's abnormal chest x-ray due to clerical error; two years later, inoperable lung tumor was discovered); Coffee v. McDonnell Douglas Corp., 503 P.2d 1366 (Cal. 1971) (physician did not see report of elevated sedimentation rate; later, worker found to have multiple myeloma).Google Scholar