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Failure to act is not an option

Oyeleye, Omobola Awosika EdD, JD, RN-BC, CNE

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doi: 10.1097/01.NURSE.0000615156.14425.36
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NURSES HAVE AN obligation to communicate changes in a patient's condition to the healthcare provider in a timely fashion. When a patient's condition deteriorates, a nurse's failure to act violates this fundamental responsibility, undermines patient safety, and has potentially severe consequences for the patient and nurse alike. The following court case summary and discussion illustrate the peril of failing to act.

Facts of the case

Mary Long* was admitted to the hospital with cholelithiasis and common bile duct dilation and evidence of a bowel obstruction, leading to a diagnosis of acute cholecystitis. After undergoing a procedure to remove the gallstones, a nasogastric (NG) tube was inserted as prescribed by the physician. No further orders were written regarding what actions to take if the NG tube was dislodged or removed.1

Hospital records indicated that Ms. Long removed the NG tube within 2 days after insertion and refused to let the nurses reinsert it. The nurses did not replace the NG tube or inform the prescribing physician that the tube had been removed and not replaced. Ms. Long subsequently underwent surgery for a bowel obstruction. At the time of discharge, she had been diagnosed with 12 different medical conditions and experienced many post-op complications.1

Ms. Long (plaintiff) sued the hospital, hospital system, and two RNs (defendants) for failing to comply with the physician's order for an NG tube and for “failure to properly treat...diagnose...and monitor” the patient.1,2 The plaintiff alleged that after the tube was removed, she “aspirated and significantly deteriorated,” and that her post-op complications resulted from the nurses' failure to comply with the NG tube order. The plaintiff also alleged that the nurses failed in their duty to care for the plaintiff, including a failure to follow policies and procedures.1 Whether the plaintiff was partly liable because she removed the tube herself was not addressed in this lawsuit.

Case dismissed, then appealed

The defendants asked the trial court to dismiss the lawsuit because the plaintiffs failed to provide an Affidavit of Merit. In New Jersey, the hospital's location, the Affidavit of Merit statute requires that any malpractice or negligence action against a licensed person in his or her professional capacity must be supported with an affidavit by another appropriate licensed person. The affidavit should state that it is reasonably probable that the actions leading to the lawsuit did not comply with acceptable professional standards or treatment practices.3 In other words, the plaintiff would need to have an expert's affidavit to support the claim of professional misconduct.

As requested by the defendants, the court dismissed the case on the grounds that the plaintiff had not submitted an expert's affidavit. The plaintiff appealed this ruling.

Plaintiff prevails upon appeal

At the appellate level, the plaintiff's lawyers argued that the trial court was wrong in dismissing their case for lack of an affidavit. They based this argument on the “common knowledge” exception to New Jersey's Affidavit of Merit statute. Under this exception, an expert is not needed if jurors and other laypersons could reasonably use their common knowledge, understanding, and experience to determine whether the defendants were negligent in their duties. The plaintiff argued that the nurses' failure to reinsert the NG tube fell under the common knowledge exception.

The appellate court agreed, ruling that in this case, a layperson could use “ordinary understanding and experience to determine a defendant's negligence, without the benefit of the specialized knowledge of an expert.”1 The Court reasoned that even though the general requirement is to have an expert establish the standard of care and the breach of care in a professional negligence claim, that requirement is not absolute. In cases where individuals of average intelligence can assess the carelessness of a defendant, an expert is not required.

The court drew another distinction between this case and other cases where experts are required. Most cases requiring an Affidavit of Merit concern situations in which a professional defendant had taken some action requiring an expert's professional opinion. In contrast, Ms. Long's case involved an “act of omission,” or a failure to act.

The appellate court determined that the nurses' alleged failure to take action by not alerting the physician that the NG tube was no longer in place was obvious enough that a layperson would not need an expert's assistance to determine the significance of the nurses' inaction, especially given that a physician had ordered its insertion. The court concluded that “common sense dictates that some action should have been taken when the nurses were confronted with the sudden termination of [the patient's] medical treatment that was required by the physician charged with her care.”1 The case was returned to the lower court for future trial or settlement.

The appellate court's decision expresses no opinion about whether the nurses were negligent or whether they should be found negligent when the case goes to trial in the lower court. It means only that the plaintiff's case against the defendants should not have been dismissed because of the absence of expert testimony. The plaintiff will still have to prove the merits of the case when she goes before the trial court.


Once an NG tube is inserted, the RN's major responsibilities involve monitoring the patient and managing the NG tube. The results of this monitoring will likely indicate when the tube should be removed.4

It is not uncommon for a patient to experience some discomfort during and after NG tube insertion. It is also not unusual for patients to pull out the NG tube before completion of the therapy, usually due to discomfort.5

The details and merits of the Long case will not be discussed here because they were not litigated in the trial court. Instead, because the hospital's records indicate that the patient removed the NG tube and refused to permit reinsertion, this discussion will revolve around the question of what constitutes a nurse's duty of care when a patient refuses treatment.

For nurses, the obligation to care begins once they accept the assignment to care for a patient. Many of these obligations are regulated by the various state Nurse Practice Acts and the laws of medical malpractice encompassing the duty of care. That duty of care includes carrying out the healthcare provider's prescriptions for the patient's therapy and communicating the patient's condition to the multidisciplinary team, especially the prescribing healthcare provider.6 Until a healthcare provider's prescription for a patient is terminated, it remains in effect. If the plaintiff can establish that a breach of duty led to patient injury, the professional will be found to be negligent.7

To be successful at trial, the plaintiff needs to prove all the elements of negligence: that there was a duty of care by the defendants, that the defendants breached that duty, that there was injury, and that the breach was what caused the injury. In this case, the plaintiff needs to prove that the nurses' failure to notify the physician led to the plaintiff's injury and that the outcome would have been different if the nurses had informed the physician.8

In view of a competent adult's right to refuse treatment and the nurse's duty to provide care, what should a nurse do when a patient has refused treatment?

Follow the nursing process

Many facts of this case were not discussed in court, so it is unclear whether the nurses recognized the dangers of their alleged inaction or why they took no action over several shifts and days. One must then view the case from the perspective of what is common knowledge to nurses and how that could have helped them resolve the issue. That common knowledge is the nursing process.

Used consistently, the nursing process is a tool that helps nurses provide appropriate patient care. The five steps of the nursing process: assessment, nursing diagnosis, planning, intervention, and evaluation (ADPIE) provide an organized method of patient care that, if followed, would guide a nurse along a path that gets the patient the right care even when the nurse is not completely certain about what to do.

If the nurses in this case had utilized the nursing process, they could have found a solution with minimal delay. An assessment would have shown that the tube had been removed. Further assessment, through questioning the patient, would have revealed the reasons why the patient removed the NG tube and why she did not want it back in. Those reasons would have led them to a nursingdiagnosis, such as pain. Planning would have given them a chance to determine how to address the diagnosis so that the patient could accept the reinsertion as an intervention. Evaluation would include assessing the patient's comfort level following tube reinsertion.

If the patient continued to refuse an NG tube, or if the reinsertion was not successful or acceptable to the patient, then the next intervention would have been to communicate the issue to other members of the team and escalate it up the chain of command, documenting along the way who was notified, when they were notified, and what actions were taken by those up the command chain. This process should continue until the issue is resolved.9

Communication problems account for approximately one-third of malpractice cases against nurses, with more than 75% resulting in serious injury or death.10 As in this case, any failure to communicate a patient's condition is potentially harmful.

Fundamental nursing responsibilities

Regardless of whether the nurses are found to be negligent at trial, the big takeaway from the appellate court's ruling is that the nurses' obligation to communicate a patient's condition to a healthcare provider, such as a physician, is so fundamental and simple to understand that no expert affidavit is necessary. In other words, it is common sense. As members of a multidisciplinary team, nurses must share information. There is no “do nothing” option.

In this case, the nurses may or may not win in court. But doing nothing is what took them to court in the first place.


1. Cowley v. Virtua Health System, 193 A.3d 330 (2018).
2. Justices to take up “common knowledge” exception, duty to warn for outsourced parts. ALM Media. January 24, 2019.
3. N.J.S.A. 2A:53A-27.
4. Price G, Shuss S. The ins and outs of NG tubes. Nurs Made Incredibly Easy. 2016;14(5):52–54.
5. Feil M. Dislodged gastrostomy tubes: preventing a potentially fatal complication. Penn Pat Saf Advisory. 2017;14(1):9–16.
6. Shannon SE. The nurse as the patient's advocate: a contrarian view. Hastings Cent Rep. 2016;46(suppl 1):S43–S47.
7. Negligence. In: Batten D, ed. Gale Encyclopedia of Everyday Law. 3rd ed. Detroit, MI: Gale; 2013: 1425–1429.
8. Kidney v. Eastside Med. Ctr., LLC, 806 S.E. 2d 849 (2017).
9. Using the chain of command effectively. AORN J. 2019;109(3):367–369.
10. CRICO Strategies. Malpractice risks in communication failures. 2015 CRICO Strategies national CBS report. 2015.

* The patient's name has been changed to protect her privacy.
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