The issue is whether or not the motion of the defendant should be granted.
Supreme Court denied the defendant’s motion. It found that questions of fact existed as to where The defendant was at the time plaintiff first complained of trouble breathing and whether her location may have rendered her incapable of intervening quickly enough in case of an emergency. The court rejected AH’s affidavit, finding that her lack of experience as a home infusion nurse rendered her opinion meaningless in a case where the standard of care to be applied was that of a home infusion specialist and not a generalist. The court credited the affidavits of both LH and the doctor, and expressly rejected the defendant’s argument that plaintiff falls short of defeating her entitlement to summary judgment because it is irrefutable that Nurse The defendant had no authority to order or administer epinephrin.
Plaintiff’s expert submissions raised triable issues as to whether the defendant’s alleged failure, after the onset of plaintiff’s reaction, to properly maintain plaintiff’s airway, to flush the IV, to perform CPR on a rigid surface, and to ensure a prompt response from emergency medical services, contributed to the severity of plaintiff’s brain injury. The defendant moved for summary judgment to dismiss the complaint. Further, the defendant failed to even shift the burden to plaintiffs on the issue of whether she breached a professional duty by administering Solu-Medrol without an available supply of epinephrine.
It is basic that the party moving for summary judgment has the burden of establishing the absence of any factual issues to entitle it to judgment as a matter of law. Here, it was the defendant’s obligation to establish the absence of a departure from good and accepted practice. However, AH’s affidavit is completely silent regarding plaintiffs’ allegation that the defendant had a duty to request a dose of epinephrine before beginning to infuse plaintiff with Solu-Medrol. As such, AH’s affidavit is insufficient to shift the burden to plaintiffs to submit evidence creating an issue of fact. To the extent that AH states that the defendant acted in accordance with good and accepted nursing practices, without addressing specific personal injury allegations, such bare conclusory statements are also insufficient.
The concurrence has confused the parties’ respective burdens on a summary judgment motion by arguing that the defendant should have been awarded summary judgment because plaintiffs failed to establish that it is common practice for Solu-Medrol infusion kits to include epinephrine. It ignores the fact that even AH’s affidavit, which the motion court correctly determined, in relevant part, lacked probative value, does not state that epinephrine is not ordinarily prescribed by physicians in conjunction with the administration of Solu-Medrol. Rather, it states only that the defendant would have needed a specific order from a doctor. This statement is clearly insufficient to shift any burden to plaintiffs.
re epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, AH was not qualified to render such an opinion. The court notes that our review of this issue is limited to whether the court providently exercised its discretion, and that the court will not disturb its determination absent a serious mistake or an error of law. Here, the motion court was correct as AH did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience AH did purport to have was necessarily transferable to the issue of whether The defendant should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other foundation tending to support the reliability of her opinion, the motion court properly rejected AH’s affidavit when considering the epinephrine issue
Even if AH had succeeded in shifting her burden on the epinephrine issue, plaintiffs amply demonstrated the existence of an issue of fact. Plaintiffs do not contend, as the defendant suggests, that the defendant should have prescribed epinephrine herself or otherwise obtained it without the proper authorization. Rather, plaintiffs claim that the defendant had a duty to inquire if epinephrine was available before she proceeded with the infusion. To impose such a duty on a nurse is not, as the defendant also suggests, to grant the nurse a license to practice medicine. Rather, it recognizes the critical role of nurses as a check against medical error.
The Court of Appeals discussed the crucial job nurses perform in B v B. In that case, the plaintiff suffered an eye injury at work and went to the emergency room the next day. An emergency room nurse and the supervising physician both separately took medical histories which failed to elicit information that would have led to proper treatment of the eye. The plaintiff sought to hold the hospital vicariously liable for the misconduct of the doctor and the nurse. The Court of Appeals had to consider whether the applicable statute of limitations was for negligence or for medical malpractice.
The court concluded that by not taking a proper medical history of the plaintiff, the nurse failed to carry out her role as an integral part of the process of rendering medical treatment to a patient.
Here, there is no evidence that the physician who prescribed the Solu-Medrol affirmatively decided that it was unnecessary to direct that epinephrine be included in the supply box that was delivered to plaintiffs’ apartment. Consequently, it cannot be said as a matter of law that the defendant was simply carrying out a prescribed treatment plan. If, on the other hand, the physician’s failure to ensure the availability of epinephrine was an oversight, or the result of a mistaken assumption by the doctor that Accuhealth would independently procure an epinephrine prescription, the defendant could have served as a critical backstop by assuring that epinephrine was available. After all, the injuries plaintiff suffered were a medically recognized consequence of the infusion. Again, the Court of Appeals in B v B identified one of the crucial roles of the modern professional nurse as that of one who coordinates the delivery of a myriad of patient services. Here, the allegation is that the defendant failed in that role, and that her actions constituted those of a passive, servile employee. Plaintiffs have certainly submitted sufficient evidence to require that a jury determine the issue.