# Applewhite v. Accuhealth, Inc. > Appellate Division of the Supreme Court of the State of New York · December 28, 2010 · 81 A.D.3d 94 URL: https://www.frixlaw.com/law-library/cases/5813535 ## Case - **Full name:** Tiffany Applewhite v. Accuhealth, Inc., and Linda Russo, R.N. - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** December 28, 2010 - **Citations:** 81 A.D.3d 94; 915 N.Y.S.2d 223 - **Precedential status:** Published - **Opinion:** Concurring in part by Saxe - **Judges:** Mazzarelli, Saxe - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5813535 ## Opinion text Saxe, J. (concurring in part and dissenting in part). This appeal concerns the scope of the duty owed by a nurse to a patient, a relatively new and developing area of tort law. As the Court of Appeals has noted in Bleiler v Bodnar ( 65 NY2d 65 [1985]), “the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders” {id. at 71 [internal quotation marks and citations omitted]). But, though the practice of nursing today entails greater re *105 sponsibilities than ever before, it is inappropriate to impose on nurses duties that belong within the sphere of obligations assigned by statute to medical doctors. Yet, part of the majority’s ruling today holds, in effect, that it is a nurse’s legal duty to oversee or supervise the work of physicians, by requiring that they make an affirmative inquiry where a physician has prescribed for the nurse’s patient a medication which carries with it a risk of anaphylaxis, but has not prescribed epinephrine to accompany that medication. While initially this holding seems innocuous, because the duty is framed as merely a duty of inquiry, it imposes a duty that neither statute, regulation, nor case law has previously imposed, a duty that is better left to be imposed, if it is to be imposed at all, by statute or regulation, rather than by common law. Moreover, the imposition of this duty of inquiry on the administering nurse is particularly unfair where the plaintiffs have not even claimed that the prescribing physician was negligent for failing to prescribe epinephrine to accompany the prescribed medication. I therefore dissent from that aspect of the majority’s ruling. This tragic case concerns 12-year-old Tiffany Applewhite, who suffered catastrophic brain injury on February 21, 1998 as the result of an anaphylactic shock reaction to medication being administered in her home through intravenous infusion by defendant registered nurse, Linda Russo, to treat an eye inflammation. While plaintiffs sued the home health care agency that sent Nurse Russo, as well as the Emergency Medical Service (EMS) and the City of New York, this appeal considers only the claim brought directly against Nurse Russo. The theories of liability offered in support of the claim against Nurse Russo were that she failed to take various necessary steps at the necessary speed in response to Tiffany’s reaction, and that she failed to ensure that epinephrine was available before beginning the intravenous infusion. Nurse Russo’s motion for summary judgment was denied by the motion court. This court now affirms. I write separately because although I concur in the result that summary judgment should be denied, in view of the issues of fact as to whether Nurse Russo’s actions in response to Tiffany’s reaction comported with professional standards of care, I strongly disagree with the aspect of the ruling permitting plaintiffs to proceed on the theory that Nurse Russo should have ensured that an epi-pen was available. The question of whether Nurse Russo may be charged with that duty is for the court; I submit that as a matter of law, Nurse Russo should not be held liable *106 based upon the failure to inquire regarding the lack of an epipen. Accuhealth, Inc. was a home health agency which provided various nursing services to clients in their homes pursuant to orders by the patients’ physicians. One such service was home infusion therapy, for which Accuhealth sent nurses throughout the New York metropolitan area to administer intravenous medication at patients’ homes. The necessary medical supplies, including prescribed medications, would be dispensed by Accuhealth’s pharmacists and sent to the patient’s home in advance. While Accuhealth employed nurses at its headquarters, as well as field nurses and pharmacists, the record contains no evidence as to whether Accuhealth employed its own physicians to consult about the prescribing physician’s orders. The day before the services were to be performed on a patient, the nurse would receive the doctor’s orders and the “demographic” information via fax, including the patient’s name, address, age, primary diagnosis and type of therapy to be administered. Upon arriving at the location, the nurse would open the package of supplies and perform the prescribed procedure. Defendant Linda Russo was one of the nurses employed by Accuhealth to perform intravenous infusions and provide other home nursing services. Tiffany Applewhite had been diagnosed with uveitis, an inflammation of the sclera, or the whites of the eye. Solu-Medrol, a steroid medication, was prescribed for her by Dr. Ahuja, at the direction of Dr. Michael Weiss, director of the Uveitis Service at the Harkness Eye Institute of Columbia Presbyterian; it was to be administered intravenously each day for three consecutive days, with a second course to run for two consecutive days one month later. Tiffany’s first course of the Solu-Medrol was administered at her apartment in the Bronx by Accuhealth nurses from January 22 to January 24, 1998 without incident or any adverse reaction. Different nurses administered the first course of treatment on each of the three days; Nurse Russo was one of them. The second course of medication began on February 21, 1998. Nurse Russo arrived at plaintiffs’ apartment at about 11:00 a.m. on that day. Tiffany’s mother, Samantha Applewhite, testified at her deposition that Nurse Russo spent about 5 to 10 minutes setting up the equipment to administer the SolurMedrol. Nurse Russo explained that to administer the drug she had to open a vein and insert a “hep lock,” a device that ensured that the blood would not clot, and then begin administering the medica *107 tion. This was accomplished in a routine manner without incident. After this point, the facts are disputed. Ms. Applewhite testified that Nurse Russo went to the kitchen, about 20 feet away, to take notes, while Nurse Russo testified that she remained next to Tiffany until the girl cried out for help. Both women claim that Tiffany complained of breathing difficulties, screaming “Mommy, I can’t breathe!” but Nurse Russo claims that this happened after three to five seconds, while Ms. Apple-white claims the IV was running for about 10 minutes before Tiffany complained she could not breathe. Ms. Applewhite agrees that immediately after Tiffany complained, Nurse Russo approached Tiffany and shut off the IV Within.a minute Nurse Russo told Ms. Applewhite to call 911. Ms. Applewhite’s deposition states Nurse Russo told her to tell the 911 operator to send an ambulance because Tiffany was having a “reaction.” Ms. Applewhite’s affidavit, on the other hand, alleged that Nurse Russo told her to tell the operator that Tiffany was “having difficulty breathing” and that Nurse Russo did not tell her to say anything about Tiffany having an allergic reaction. By the time the call was over, Tiffany was unconscious. Ms. Applewhite testified that Nurse Russo asked her to help lay Tiffány on the sofa and get a padded spoon to open Tiffany’s mouth. Nurse Russo did so, opened Tiffany’s mouth using the spoon to “keep her tongue from going into her throat” and began CPR. The accounts differ as to where the CPR began. Nurse Russo claims she immediately moved Tiffany from the couch to the floor. Ms. Applewhite claims that Nurse Russo began CPR on the sofa and that Tiffany was not moved to the floor until about five minutes later, when two-person CPR began when “an ambulance arrived with two EMT’s” and a female EMT began CPR alongside Nurse Russo. Ms. Applewhite’s version is corroborated by the New York City Fire Department ambulance call report, which stated “12 year old female . . . found supine on couch.” According to Ms. Applewhite, two minutes after the first 911 call, she made a second 911 call at the request of Nurse Russo. About 20 minutes after Tiffany first claimed she could not breathe, a “male and [a] female” arrived from “[t]he first ambulance.” The male went downstairs to call EMS. The female commenced two-person CPR with Nurse Russo. When the male returned about 15 minutes later he was with four EMS responders from two other ambulances, according to Ms. Applewhite. *108 They then took over Tiffany’s treatment, putting an oxygen mask on her and taking her downstairs to the ambulance. Ms. Applewhite brought suit on behalf of Tiffany against Nurse Russo, Accuhealth, the Emergency Medical Service and the City of New York for her catastrophic brain injuries. No claim was made against the physician who prescribed the Solu-Medrol that was administered on February 21, 1998. 1 Nurse. Russo moved for summary judgment pursuant to CPLR 3212, offering in support her own affidavit and that of her expert, Anne Heuser, R.N., asserting that the treatment Nurse Russo rendered to Tiffany was “well within the standards of good and accepted nursing practices.” According to Heuser’s affidavit, it was proper for Nurse Russo to direct Ms. Applewhite to call 911 and inform them of Tiffany’s inability to breathe, as well as to promptly open an airway and administer CPR. Heuser noted that Nurse Russo was not authorized to carry the medical antidote to anaphylactic shock, epinephrine, without a physician’s order, and there was “nothing else” that Nurse Russo could have done. In opposition, plaintiffs submitted an affidavit from their own expert, Lynn Hadaway R.N., who is licensed in Georgia. Had-away’s affidavit attacked Nurse Russo’s qualifications on the grounds that she did not possess a “Certified Registered Nurse Intravenous” (CRNI) credential. Hadaway also cited a monograph stating that anaphylaxis is a side effect of Solu-Medrol and epinephrine should be kept “immediately available.” Had-away further criticized Nurse Russo’s failure to treat Tiffany with epinephrine and intravenous fluids and her failure to perform CPR on a “sturdy, rigid surface.” Plaintiffs also submitted the affirmation of Dr. Michael Wajda, an anesthesiologist, who stated that lack of oxygen can cause irreversible brain damage within five to seven minutes. Wajda criticized Nurse Russo’s alleged failures to administer epinephrine, properly maintain the patient’s airway, and *109 administer IV fluids to enhance blood vessel dilation. Wajda stated that it was unclear whether Nurse Russo immediately stopped the administration of Solu-Medrol when Tiffany began to have anaphylaxis symptoms. He also asserted that Nurse Russo should have brought Tiffany to the hospital herself rather than waiting for the first responders even though Tiffany was on the fifth floor of an apartment building, stating “if an emergency hospital facility was only minutes away from the scene, then in my medical opinion, Tiffany most probably would have had a better outcome going immediately to the hospital, rather than waiting with the Nurse and first responders, who did not provide the proper initial therapy for anaphylaxis.” In reply, Nurse Russo disputes plaintiffs’ position that it would have taken “minutes” for Nurse Russo to get from the living room to Tiffany, since—even if Nurse Russo had been in the kitchen, as Ms. Applewhite claims—it would only have taken a few seconds. Nurse Russo also pointed out that even assuming that she began CPR while Tiffany was on the couch, as plaintiffs contend, plaintiffs submitted no evidence as to the quality of the couch so as to establish that it was an inappropriate surface on which to perform CPR. She further argues the other alleged departures from the standard of care were not shown to constitute proximate causes of Tiffany’s injury. Finally, Nurse Russo disputes plaintiffs’ challenge to her expert, offering an affidavit by Heuser defending her qualifications, asserting that she had 19 years of experience as a registered nurse and had worked in trauma centers and emergency rooms in various New York hospitals and therefore was more than qualified as an expert witness. Heuser’s affidavit also countered Hadaway’s challenge to her expertise on the basis of her lack of CRNI certification, pointing out that CRNI is not required for an RN to administer home infusion therapy, in that the American Board of Nursing Specialties only accredited this designation in July 2006, more than eight years after the events in question. The motion court denied Nurse Russo’s motion for summary judgment on various grounds. The court held that a question of fact was presented as to whether by situating herself in the next room Nurse Russo failed to properly evaluate Tiffany’s condition and failed to recognize her reaction and stop the IV as quickly as possible. The motion court found that Nurse Russo’s expert, Nurse Heuser, was not qualified to give an expert *110 opinion because Nurse Russo must be judged according to the standards of a specialist in home infusion nursing, and Heuser was not a home infusion nurse. The court also rejected Nurse Russo’s argument that since a nurse may not order or administer epinephrine, she may not be held liable for that failure; the court pointed to a monograph cited by Hadaway which claimed that epinephrine should be kept immediately available. The majority affirms, finding issues of fact as to whether Nurse Russo breached a duty of care by failing to inquire regarding the availability of epinephrine, whether she properly maintained Tiffany’s airway and whether she failed to properly flush the IV As stated earlier, while I agree with the remainder of the majority’s reasoning, I take issue with this Court’s ruling to the extent it allows plaintiffs to proceed in reliance on the theory that Nurse Russo breached a duty to inquire regarding the failure to provide epinephrine. Finally, because the matter will proceed to trial, I would also reject the motion court’s ruling regarding Nurse Heuser’s qualifications to give an expert opinion in regard to Nurse Russo’s handling of Tiffany’s case. While nursing malpractice is a relatively new area of law (see Bleiler v Bodnar, 65 NY2d 65 [1985], supra), there is a long history of claims being sustained against hospitals based upon nurses’ failures, usually entailing the failure to follow nursing plans or medical orders (see Toth v Community Hosp. at Glen Cove, 22 NY2d 255 [1968]; Pacio v Franklin Hosp., 63 AD3d 1130 [2009], affg 2008 NY Slip Op 31702[U] [Sup Ct, Nassau County 2008]), failing to properly take the patient’s history (see e.g. Bleiler v Bodnar, 65 NY2d at 72), or failing to physically protect patients from injury in their weakened or compromised state (see e.g. N.X. v Cabrini Med. Ctr., 97 NY2d 247 [2002]). However, the present case goes well beyond these typical grounds for liability; here, liability is sought against a nurse based on the nurse’s claimed failure to properly exercise her independent professional skills and judgment in treating the patient—in particular, in failing to question the prescribing physician’s failure to include a prescription for epinephrine to be used in the event the patient experienced an anaphylactic reaction to the medication. For all malpractice claims, the critical issue is the existence and scope of the defendant’s duty. There is no dispute here that Nurse Russo owed a duty of care to her patient. It is the nature and extent of that duty that must be determined. *111 I recognize that where a defendant owes a professional duty to a plaintiff, the scope of that duty is often determined by courts with the input of experts in the same field. “The law generally permits the medical profession to establish what the standard is (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682, 689 [1981]). Once the existence of a duty has been established, resort to an expert is usually necessary. ‘To establish what the existing standard is or that there has been a departure from it, because laymen ordinarily are not deemed possessed of a sufficient knowledge, training or experience to have attained the competence to testify on this subject, a plaintiff nearly always will be required to produce expert testimony’ ” (Cregan v Sachs, 65 AD3d 101, 109 [2009], quoting Topel, 55 NY2d at 690 ). However, where, as here, statutes define and limit the parameters of the professional’s responsibilities in a particular area, courts should hesitate to use their authority to impose, through case law, duties previously not contemplated by the controlling statutory authorities. Education Law § 6902 defines the practice of nursing. The statutory definition encompasses a wide variety of tasks: “casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens prescribed by a licensed physician, dentist or other licensed health care provider legally authorized under this title and in accordance with the commissioner’s regulations” (§ 6902 [1]). The tasks for which a registered professional nurse may be held responsible in this state do not include prescribing medication, a responsibility which the Education Law leaves as the province of medical doctors, or other appropriately credentialed professionals such as those nurses who have received advanced certification as “nurse practitioners” and have the necessary additional credentials and supervision (Education Law § 6902 [3] [b]; § 6909 [4]). It is undisputed that epinephrine is available only by prescription; indeed, it would have been illegal for Nurse Russo to dispense epinephrine without a physician’s order (Education Law § 6902; Public Health Law § 3000-c). Even though prescribing medication is the responsibility of physicians, and is not within nurses’ statutorily-defined sphere *112 of responsibility, the majority today in effect imposes on nurses a requirement that they possess the same knowledge of pharmaceuticals that we properly demand of those who are authorized to prescribe them. A new duty of inquiry would blur the line between physicians and nurses, and substantially extend the responsibilities of registered professional nurses. Indeed, it cannot be reconciled with the long-standing rule that nurses are normally protected from liability if they are merely following a physician’s orders, except where the physician’s orders are clearly contraindicated by normal practice (see Toth v Community Hosp. at Glen Cove, 22 NY2d at 265 n 3; Warney v Haddad, 237 AD2d 123 [1997]). While Bleiler acknowledged the increasingly complex duties of modern nurses, it did not go so far as to permit courts to require nurses to act as the de facto supervisors of prescribing physicians. The majority suggests that the new duty it is imposing on nurses is minimal and acceptable, in view of the common knowledge that epinephrine is an antidote to anaphylaxis, and of the widespread use of epi-pens. Of course, it is common knowledge that many drugs can cause severe allergic reactions, and many people with known life-threatening allergies have been prescribed epinephrine as an antidote to carry with them. But, that fact does not justify a legal requirement that a nurse, before administering such drugs, must question the prescribing physician as to whether he or she failed to consider the need for a precautionary dose of epinephrine. In imposing that duty of inquiry, we have undertaken a task that courts are not equipped to handle: that of defining the circumstances in which nurses have the obligation to challenge a physician’s prescription. A new affirmative duty on the part of a nurse to inquire as to whether the prescribing physician overlooked the need for epinephrine, if it is to be imposed at all, should be imposed by the legislative bodies that define those responsibilities, rather than by the common law. Moreover, even if we use the opinions of the parties’ experts to formulate our own rule regarding whether a home infusion nurse has a duty to inquire as to whether a treatment for a possible anaphylactic reaction must be on hand, I disagree with the motion court’s ruling rejecting the qualifications of defendant’s expert and accepting the view of plaintiffs’ expert. In the context of a defendant’s motion for summary judgment dismissing a malpractice claim, the defendant must initially establish a prima facie right to relief through an expert’s opinion *113 responding to the essential factual allegations of the complaint (Cregan v Sachs, 65 AD3d at 108 ). Contrary to the motion court’s assertion, defendant’s expert, Nurse Anne Heuser, was sufficiently qualified to give an expert opinion as to Nurse Russo’s professional conduct, even though she was not a home infusion nurse. While experts must possess the requisite skill, training, knowledge or experience to establish that their opinion is reliable, they do not have to be specialists in the same field as that of the defendant, as long as they lay the foundation to support the reliability of their opinions (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], lv denied 6 NY3d 705 [2006]). It is not required in New York that an expert witness possess a particular certification in order to be qualified as an expert as long as the expert had the requisite degree of knowledge to testify as to the tasks at issue (see Bodensiek v Schwartz, 292 AD2d 411 [2002]). Under New York law, the practice of all nurses, other than nurse practitioners, is governed by the same statute (Education Law § 6902). As Nurse Russo pointed out at her deposition, registered nurses working in hospitals regularly encounter anaphylactic reactions to emergency treatment; anaphylaxis is not a complication that occurs uniquely in the home infusion setting. Therefore, any registered nurse with hospital experience would be qualified to testify on the issue of the standard of care relevant to an anaphylactic patient. Anne Heuser was a registered nurse with 19 years of experience, who had worked in emergency rooms and trauma centers, including hospitals in the New York area. This adequately laid the foundation for her opinion, and her affidavit should not have been rejected as a matter of law. While the question of whether an expert witness is qualified generally rests in the sound discretion of the trial court (Matter of Pringle v Pringle, 296 AD2d 828, 829 [2002]), in the context of this motion, Nurse Heuser’s affidavit was competent to establish that Nurse Russo’s conduct comported with the applicable standard of care. It is therefore necessary to turn to the issue of what issues of fact are presented as to Nurse Russo’s liability so as to preclude summary judgment. New York case law is not well developed in regard to the standard to which specialty nurses should be held. Furthermore, even assuming specialized nurses are held to a higher standard of care than ordinary nurses, it is not clear how that standard should be established, whether through the adoption of national *114 standards as proposed by plaintiffs’ expert, Nurse Hadaway, or by local standards. No court in New York has addressed the standard of care to be applied to a nurse who specializes in a field for which New York does not issue advanced certification. While Nurse Russo did not possess CRNI certification, at the time such certification was not a recognized accreditation by the American Board of Nursing Specialties. However, even in areas without professional certification, New York may hold specialized nurses to a heightened standard of care, just as physicians in this state are held to a standard under which they must employ any superior knowledge and skill they have, even if it exceeds that of the average doctor or specialist in the community where they practice (Nestorowich v Ricotta, 97 NY2d 393, 398 [2002]). To the extent it is asserted that Nurse Russo did not properly handle her patient’s anaphylactic reaction, such as in the manner and position in which she provided CPR to her patient, plaintiffs’ claims create issues of fact which preclude summary judgment. The issue of whether proximate causation was established is also properly left to trial. However, the portion of the ruling permitting liability to be based on Nurse Russo’s failure to take steps to ensure that epinephrine was available in the event of an anaphylactic reaction should not stand. If, as plaintiffs’ expert claims, anaphylaxis is a medically-recognized side effect of Solu-Medrol such that epinephrine should be “immediately available” when it is administered, it would have been the responsibility of the prescribing physician to provide the administering nurse with the necessary antidote along with the medication. Yet, plaintiffs do not claim that the physician who prescribed the course of treatment with Solu-Medrol committed malpractice by failing to make sure that epinephrine was available. 2 How can we allow plaintiffs to contend that the administering nurse’s failure to independently take steps to arrange for the availability of a prescription medication constituted nursing malpractice, particularly where the prescribing physician is not even named as a defendant? Notably, plaintiffs do not even claim that ensuring that epinephrine is available along with a prescription for Solu-Medrol is such a standard practice that its absence would be *115 recognized as a clear impropriety by any competent nursing professional, which forecloses any reliance on the theory mentioned in Toth v Community Hospital—namely, that nurses may be liable for following a physician’s orders when they are clearly contraindicated by normal practice (see 22 NY2d at 265 n 3). Additionally, although plaintiffs’ experts assert that epinephrine should have been administered, neither of plaintiffs’ experts testified that epinephrine was normally made available to nurses whenever home infusion therapy was performed. The monograph Hadaway cited, saying that epinephrine should always be available when Solu-Medrol is administered, does not establish that this recommendation has actually been followed in the general practice of home infusion therapy. Indeed, Nurse Russo pointed out that in the course of her entire career in home nursing care, no anaphylaxis kit had ever been dispensed to her along with medication to administer, although as admitted by Dr. Wajda, plaintiffs’ expert witness, any medication at all may trigger anaphylaxis. There was no existing standard or duty in the law requiring epinephrine to be made available when performing home infusion therapy, and there is certainly no law in New York imposing a duty on the part of a nurse to obtain an anaphylaxis kit when administering home infusion therapy. Finally, I observe that the use of home infusion therapy to administer powerful medications, rather than administering them in a hospital setting where crash carts and antidotes are at hand, certainly has many cost benefits and personal benefits to the patient. But, if plaintiffs are correct and such powerful medications are accompanied by a substantial possibility of a life-threatening adverse reaction, the medical profession and our society in general ought to reconsider the advisability of employing home infusion therapy without providing the medical provider administering the infusion with at least an epi-pen to combat such a reaction. Based upon the showing made, disputed issues of fact as to whether Nurse Russo properly handled Tiffany’s anaphylaxis, such as in performing CPR, justify denying her motion for summary judgment. However, the issues of fact remaining for trial should not include the possibility that liability be based on the failure to administer or procure epinephrine. DeGrasse and Manzanet-Daniels, JJ., concur with Mazzarelli, J.P.; Saxe and Nardelli, JJ., concur in part and dissent in part in a separate opinion by Saxe, J. *116 Order, Supreme Court, Bronx County, entered on or about October 29, 2009, affirmed, without costs. . The action was stayed for several years due to the bankruptcy of Accuhealth and its insurer, which was not covered by the New York Property/ Casualty Insurance Security Fund. Accuhealth’s general liability policy was written by Reliance Insurance Company of Illinois, a non-admitted carrier not licensed to do business in New York State. Accordingly, there was no coverage provided to Accuhealth for the loss under the New York Property/Casualty Insurance Security Fund under Insurance Law § 7603 because the Property/ Casualty Fund is only used to pay claims from the insolvency of authorized insurers, and “authorized” insurers are those licensed to do business in New York. . Indeed, plaintiffs’ appellate counsel affirmatively took the position that the physician committed no malpractice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5813535. Public record. Not legal advice.