Monday, November 30, 2009

First District On Pleading Failure To Establish A Sufficient Duty Of Care - Hospital Employee Murdered Patient With Controlled Drugs

In Herndon v. Shands Teaching Hospital and Clinics, Inc. (1D09-0437), the First District reversed the trial court's order granting Shands motion to dismiss with prejudice.  Judge Browning wrote the majority opinion and was joined by Judge Van NortwickJudge Padovano wrote a dissent.  The majority opinion stated:
Appellants alleged that Oliver O’Quinn, (hereinafter referred to as “O’Quinn”), a surgical nurse employed by Appellee, murdered Michelle Herndon with an injection of hazardous controlled drugs (Propofol, Midazolam and Estomidate, unavailable without a doctor’s prescription and under the supervision and control of Appellee). Appellants alleged that Appellee had a legal duty to Michelle Herndon that was breached by its negligent hiring and supervision of O’Quinn.
we conclude the Appellants’ complaint essentially alleges: (1) Appellee knew or should have know of the risk of unsupervised release of hazardous controlled drugs under its control requiring a doctor’s prescription for use; (2) a reasonable medical care provider like Appellee, in possession or control of the alleged drugs, would understand that the public would be exposed to an unreasonable and unnecessary risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor’s prescription; and (3) the death of Michelle Herndon was a foreseeable consequence of Appellee’s failure to use reasonable care in the hiring and supervision of O’Quinn. We conclude these facts and allegations are sufficient to establish a duty of care.
The dissent stated:
The amended complaint creates the impression that the defendant breached a duty of care to the plaintiff but it does so only by making broad statements that are in the nature of conclusions. Because I believe that the plaintiff’s claim against the hospital is unsupported by allegations of fact, I respectfully dissent.
The foreseeability of harm in the anthrax case takes only one step. If a person comes into contact with anthrax, injury or death will occur. To say that the harm was foreseeable in this case, however, would require several additional steps. Assuming the hospital knew that Nurse O’Quinn was stealing the drugs, one would have to assume he was not using them himself, but rather that he was giving them to others against their will. One would also have to assume that the hospital could reasonably predict that he would intentionally harm or kill someone by deliberately giving them an overdose. This, I think, stretches the duty element of negligence too far.


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