By Stacey Kusterbeck
A former emergency nurse was recently sentenced to three years in prison for diverting injectable pain medications, such as fentanyl, morphine, and ketamine.1
According to authorities, the nurse obtained the drugs from an automated medication dispensing machine in the ED, refilled the vials with saline solution, and super-glued the lids back on. The nurse administered the saline solution to dozens of patients who needed pain relief.
“In most states, it is a felony to attempt to divert drugs by misrepresentation, fraud, forgery or deception,” says Susan Montminy, EdD, MPA, BSN, RN, CPHRM, CPPS, director of risk management at Coverys and a former nurse investigator with the Rhode Island attorney general’s office.
Potential civil and administrative penalties could be imposed as well, especially if the diversion resulted in harm to a patient. “Both the provider who diverted the drugs and their employer could be subject to a lawsuit,” Montminy cautions.
There are specific malpractice risks for EDs in this situation. Risks for patients include inadequate pain relief and infectious disease transmission. There also are patient safety issues related to receiving care from an impaired provider. For leaders, Montminy says there are processes to put in place that can help them identify patterns or trends indicating potential diversion.
For example, conduct surveillance routinely to look for unusual patterns of controlled substance removal and deviations from waste procedures. Educate staff on signs of drug diversion and impairment. These signs include employees frequently disappearing from the units, long periods spent near medication dispensing units, behavior changes causing interpersonal issues, or physical clues that could indicate impairment (e.g., constricted pupils, euphoria, or anxiety). Additionally, encourage staff to seek help for substance use disorder. “Provide staff with contact numbers to seek confidential help, making it easy to access assistance,” Montminy suggests.
Finally, track compliance with processes for removing, wasting, and returning unused controlled substances. “Failure to follow these procedures should be first addressed by coaching, and further investigated if failure to follow procedures continues,” Montminy says.
For cases in which a nurse is diverting medications, there is the potential for administrators to face criminal liability. “There have been instances where a company’s officers were held responsible for failing to have appropriate controls in place,” says R. Stephen Stigall, JD, an attorney in the Philadelphia office of Ballard Spahr. Those cases involved pharmaceutical companies, but the same legal doctrine could apply to hospitals.
Normally in criminal cases, the prosecutor has to prove the individual intentionally, knowingly violated the law. However, under the Responsible Corporate Officer doctrine, prosecutors do not need to prove someone’s mental state to establish liability. “That’s why it’s risky for EDs; you could be held responsible even if you intended to comply with the law,” Stigall says. “You may not have even known about it. It’s almost like taking a negligent standard and applying it to criminal law.”
Stigall says if prosecutors are determining whether to file criminal charges in a drug diversion case, there are critical factors to consider. First, the location of the automated medication dispenser — was it in a closed-off area away from the view of other people, making it easy for a healthcare provider to divert medications, or was it near a nursing station in full view of others? Second, was the automated medication dispenser routinely audited so suspicious activity could be detected?
If the hospital learns an ED nurse diverted medications, leaders might be obligated to inform authorities. If there is any risk that patients might have been harmed, the hospital might choose to disclose it to the U.S. attorney’s office or perhaps to the FDA.
“One determination of how the Department of Justice should treat business entities is, ‘Did you self-disclose?’” Stigall says.
If administrators did self-disclose the incident of drug diversion, the hospital might be able to avoid a fine or at least mitigate the severity of a fine — or avoid potential prosecution for aiding and abetting or conspiring to tamper with a consumer product.
Meanwhile, the hospital also could face malpractice lawsuits stemming from the incident. The defense likely would be the ED nurse acted independently. “However, plaintiff attorneys could counter that the hospital should be held liable for failing to prevent the situation,” Stigall explains.
Even if the patient did not suffer physical harm, there still could be liability for the medical facility. The plaintiff attorney could allege the patient was subjected to battery. The argument would be the patient came to the ED and consented to be injected with pain medication; instead, someone injected a potentially tainted saline solution, to which the patient did not consent.
“In certain states, patients may also be able to sue for pain and suffering,” Stigall adds. “There may be zero in compensatory damages. But the plaintiff attorney could ask the jury to punish the hospital for allowing it to happen.”
Juries might be sympathetic to this argument, viewing the hospital as a deep pocket. “Rightly or wrongly, the public looks at our healthcare system and says the people in it are making money hand over fist,” Stigall observes.
An individual nurse likely will not be able to pay a large judgment, so plaintiff attorneys will name the hospital or health system. “The creative plaintiff attorney is going to sue the corporation, maybe the holding company over the hospital, and then probably name some individuals in order to force some sort of settlement,” Stigall says.
All the entities sued have to defend themselves and incur legal expenses. “If one of the hospital employees is deliberately putting something in a medication vial that could poison a human being, the hospital will be vulnerable,” Stigall asserts.
The nurse might assume liability is minimal because injecting patients with saline is not going to harm or kill anyone. “But it could become tainted, which is inherently dangerous,” Stigall warns. “If somebody were to die as a result of that, a jury is going to be very unforgiving.”
REFERENCE
1. U.S. Attorney’s Office, Southern District of Indiana. Former emergency department nurse sentenced to 3 years after stealing pain medication and injecting patients with saline. April 12, 2023.
There are specific malpractice risks for EDs in this situation. Risks for patients include inadequate pain relief and infectious disease transmission. There also are patient safety issues related to receiving care from an impaired provider. For leaders, there are processes to put in place that can help them identify patterns or trends indicating potential diversion.
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