A patient who had been experiencing a fever and cough for several days made an appointment with her physician. The physician refused to see her due to the severity of her symptoms and referred her to an emergency department (ED). The ED conducted a COVID-19 test, and the patient was sent home to await the results.
An RN conducted a routine home health visit with the patient, for an unrelated issue, the day after the COVID-19 test was done. After being with the patient for about 25 minutes, the RN quickly went to her car and called the agency to express concern over the patient’s symptoms and the possible COVID-19 exposure.
The agency told the RN to continue with her other scheduled home visits for the day, and if she did not do so, she would be terminated.
The RN stressed that the patients she was to see that day were already compromised by existing illnesses, and she was concerned she might expose them to the virus. The agency was adamant that she must adhere to the schedule and see her remaining group of patients. The RN refused and was summarily terminated.
The patient called the RN several days later and said that her COVID-19 test was negative. The RN asked the patient to notify the agency, but the patient never did so.
The RN assumed that the patient did have COVID-19 because of the patient’s reluctance to contact the agency. The RN also began to wonder if she had any recourse regarding her termination.
Analyzing the RN’s Account
The RN’s account of the events that transpired highlights several legal and ethical employment issues that surfaced with the pandemic. For example, in July of 2021, I wrote about an LPN’s wrongful termination after she filed for paid leave after contracting COVID-19. Other cases have involved issues of workplace safety (e.g., lack of proper PPE) and professional negligence and/or wrongful death claims after a patient’s death due to COVID-19.
In this case, there is no doubt that the RN’s refusal to see other patients that day was legally and ethically grounded. If the patient the RN cared for did have COVID-19, she was exposed to the virus. She could then potentially expose the other patients in her care to it.
The law clearly requires a nurse to be accountable and responsible for his or her own actions. But if the RN followed the agency’s command and other patients became ill due to her exposing them to COVID-19, she could be sued — alleging a professional negligence and/or wrongful death claim.
In addition, the RN could face a professional licensure proceeding by the state board of nursing for breaching her standard of practice and for conduct that caused harm to the public.
Keep in mind that a professional licensure proceeding does not require that actual harm to a patient actually occurred. It is the breach of the standard of practice and the nurse licensee’s conduct that is the basis for such a proceeding.
As a result, simply continuing to see patients on the day of a potential COVID-19 exposure could result in a complaint by a patient or family member if either was aware of the earlier visit and was alarmed about the potential exposure.
Ethically, the RN also met her duties under the ANA Code of Ethics for Nurses and under its recently published statement, Nurses, Ethics, and the Response to the COVID-19 Pandemic.
Analyzing the Agency’s Response
Of grave concern here is the response of the home health care agency to the RN’s expressed concerns. It seems that its demand that the RN continue to see patients regardless of the possible COVID-19 exposure was based on a concern for lack of revenue rather than the well-being of the patients.
The agency could face the same legal liability of a professional negligence or a wrongful death claim as well, if the other patients contracted COVID-19 due to the RN’s exposure.
The RN’s termination over her refusal to see additional patients also raises the possibility of the RN suing her employer for firing her in retaliation for refusing to see other patients.
Although the RN’s termination was for a different reason than the LPN’s termination discussed in my aforementioned blog, the effect is the same: punishing an employee for raising an employment issue that is illegal or against public policy/protection.
I would be remiss if I did not mention one final matter applicable to this situation. The RN did not mention whether or not she was wearing a mask and complying with updated CDC guidelines governing patient care in this pandemic.
Nor did she indicate that she had or had not been vaccinated against COVID-19.
It is assumed she did follow the recommendations, that she was vaccinated, and the employer required all healthcare employees to be vaccinated and follow CDC recommendations.
If so, the RN’s own potential COVID-19 exposure and the potential exposure to her other patients might arguably be reduced, thus making the agency’s position requiring her to continue to see patients clearer.
If, however, the RN did not follow these instructions and was not vaccinated, and/or the agency did not require vaccinations and follow CDC guidelines, both could face legal challenges to their actions.
If so, their ethical duties also were clearly disregarded.