Who's responsible when a nurse dies on the way home from work? More specifically, can a hospital be held responsible for working a nurse to the point of a fatal car crash? That's what the family of Elizabeth Jasper, RN, a 38-year-old Ohio nurse, is claiming. Jasper was killed while driving home after working a 12-hour night shift, and her family says that her death was a direct result of overwork necessitated by a staffing shortage that the facility was well aware of. The wrongful death lawsuit was filed by her husband, Jim Jasper, who publicly stated that his wife was “worked to death” and that the hospital was aware of the situation. Eric Deters, the attorney representing Jasper, also publicly speculated that Jasper might have dozed off while driving, which could have caused her car to veer off the road, jump an embankment, and hit a tree.
According to the lawsuit, the bone marrow transplantation unit where Jasper worked had been busy and understaffed during her final shift. During that shift, she also reportedly complained to her coworkers that she was “really stressed” and “hadn't eaten” during the shift. Jasper had been working on that unit at Jewish Hospital of Cincinnati for 13 years.
WHERE DOES THE RESPONSIBILITY LIE?
In some states bartenders can be held liable for a drunk-driving accident, the reasoning being that they made it possible for the person to drive in an intoxicated state by overserving alcohol. Sleep deprivation is also a well-established cause of traffic accidents. Studies performed by the National Institute for Occupational Safety and Health show that more drivers are killed from falling asleep at the wheel than from drug use and alcohol combined, according to Edie Brous, JD, MS, MPH, RN, a nurse attorney in New York City and coordinator of AJN’s legal column, Legal Clinic, who specializes in nursing licensure, malpractice, education, and legislation advocacy. In fact, a November 2010 study by the American Automobile Association estimated that one out of every six deadly traffic accidents is related to a sleep-deprived driver. “Most of the focus on tired nurses has revolved around patient safety,” said Brous, “and less so on the nurse's safety.” But in terms of who's responsible for an accident—the employer or employee—the answer could be “both,” according to Brous. “The courts can hold the employer responsible if [the accident] was foreseeable—if they knew she was too tired to drive but did not intervene.”
Some similar cases have found employers liable, and others haven't. In a case in Sacramento, California, nurse Vikki Peeler fell asleep at the wheel after participating in a required “skills lab” at her hospital—which took place at the end of her 12-hour shift. She lived, but two people in a truck she hit died, and the family of the victims sued her and the hospital. According to a case description in Sleep Medicine, a book by Lee-Chiong and colleagues, although the court deemed the nurse 75% responsible and the hospital 25% responsible, the hospital was forced to pay all of the $1.3 million award—because it had the funds and Peeler didn't.
Trial outcomes vary by state and are very fact specific, explained Brous. “Generally, the courts hold that an employer may be liable for injuries caused by worker fatigue if the employer knew there was a risk and had control over the risks but didn't manage them. But for the employer to be liable, there must also be a direct cause-and-effect relationship between the employment and the injury. And there cannot be any superseding or intervening factors.”
For example, Brous said, the courts will look at the amount of break time, the distance the person has to drive, whether any special circumstances apply, whether there's statutory language, whether there's considered to be a duty to third parties, and the person's normal work hours, among many other factors.
According to the Jasper lawsuit, from 2011 until Jasper's death, the bone marrow transplantation unit and ICU were regularly understaffed. As a result, nurses often were unable to take their breaks, worked extra shifts, and were asked to stay late. Additionally, Jasper was routinely called into work while off duty because she was one of the few nurses qualified to care for patients undergoing dialysis. These policies had compelled a number of nurses to seek employment elsewhere, resulting in a “revolving door” of staff at the facility.
The Jasper lawsuit further asserts that the hospital administration was aware of the staffing shortages but made no move to improve staffing; therefore, the suit alleges, Jasper's death was “directly and proximately caused by the wrongful acts and conduct of all defendants,” and they “owed a duty to their employee, Ms. Jasper, to take reasonable precautions for her safety by abstaining from deliberate practices that placed her in a position of unjustifiably high risk.”
But employees also have to be responsible and know their limits, said Brous. “If you are assigned to work 12-hour shifts—which in reality often turn into a 16-hour day, but that's what you signed up to work—then you need to make sure you get enough sleep. And if you are unable to drive safely, you [must] make sure to tell your employer that you're impaired and cannot stay over.”
And that's a crucial point when weighing employer responsibility against employee responsibility. If the employer is aware that the employee is impaired but still requires the employee to work past her or his physical limits and, say, get behind the wheel of a car, operate machinery, or something of that nature, then the employer is responsible for the consequences, explained Brous.
Licensing boards also look carefully at these issues and may hold nurses responsible for knowing their limits. For example, said Brous, “the board isn't going to hold the employer responsible for a medical error you make.”
CAVEATS ON MAKING JUDGMENTS
A perennial struggle for the nursing profession is how to optimize nurse staffing and schedules, explained Amy Witkoski Stimpfel, PhD, RN, assistant professor at the New York University College of Nursing, who researches the effects of extended work hours on nurses. In order to maintain round-the-clock patient care, she said, shift work (working shifts other than the day shift or rotating shifts) is required, “leaving nurses vulnerable to acute and chronic sleep loss. Fatigue related to shift work poses a threat to nurse safety and well-being.”
Drowsy driving is a significant threat to public safety and has been observed across professions in which shift work is common; a study by Scott and colleagues in the December 2007 issue of the journal Sleep found that two-thirds of nurses reported at least one episode of drowsy driving in a four-week period. “Thus,” said Stimpfel, “hospital management and staff nurses must work in tandem to cope with shift work and promote safety on and off the job.”
Various strategies can be used to achieve this, she pointed out, such as establishing policies prohibiting mandatory overtime and excessive workloads. Managers should routinely monitor their staff's work hours and use flexible scheduling when possible.
Importantly, nurses engaged in direct care also share responsibility for preventing fatigue. “Obtaining adequate rest prior to the start of a shift is critical,” said Stimpfel. “And caffeine can be used strategically during the shift to increase alertness. Nurses who are able to ‘self-schedule’ should consider the length of their shift, any rotation involved, and the number of consecutive shifts worked.”
To help prevent tragic accidents, such as what may have occurred with Elizabeth Jasper, nurses and administrators need to work together to promote a safe commute home after a long shift. “Nurses should be educated on recognizing the signs of drowsy driving and what countermeasures can be used to prevent a drowsy-driving accident,” said Stimpfel, pointing out that managers can provide cab vouchers for fatigued employees or an on-call room in which they can take a short nap before driving home.—Roxanne Nelson
WHAT NOT TO DO
How to avoid a drowsy-driving accident.
According to Jeanne Geiger-Brown, PhD, RN, FAAN, associate professor at the University of Maryland School of Nursing, who researches nurses’ work hours, “The things that nurses try to keep themselves awake while driving home are totally ineffective.” Here is a partial list of what's not effective:
* making the radio loud
* talking on the phone
* rolling the window down
* slapping yourself in the face
* not voiding before leaving to ensure a full bladder
So what can you do? The only remedy for drowsy driving, she says, is to “pull over in a safe place, quickly drink a caffeinated beverage or chew caffeine gum, lock your car with the windows up, recline your seat, and sleep for no more than 20 minutes—set a cell phone alarm. That small amount of sleep,” she says, “combined with the caffeine that's now in your system, will probably be sufficient to get you home safely. And never say to yourself, ‘I'm almost home, I can make it a little farther.’”