Beck v. Shinseki

• Decision Date: 16 March 2015
• Docket Number: CV 113-126
• Court: U.S. District Court — Southern District of Georgia
• Parties: MARYETTA M. BECK, Plaintiff, v. ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

MARYETTA M. BECK, Plaintiff, v. ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

CV 113-126

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

March 16, 2015

ORDER

Maryetta M. Beck appeals the decision of the Disciplinary Appeals Board ("the Board" or "DAB"), affirmed by the Principal Deputy Under Secretary for Health ("Under Secretary"), to discharge her from her position as a registered nurse at the Charlie Norwood Veterans Administration Medical Center ("VAMC") in Augusta, Georgia. The parties have fully briefed and filed cross-motions for summary judgment on the propriety of the Board's termination decision. Upon review of the administrative record,¹ the Court AFFIRMS the dec is ion of the DAB and GRANTS Defendant's motion for summary judgment. (Doc. 32.) Ms. Beck'smotion for summary judgment, therefore, is DENIED (doc. 30), and Defendant's motion to strike (doc. 35) is DENIED AS MOOT.

I. BACKGROUND

Plaintiff Maryetta M. Beck is an Idaho- and Georgia-licensed registered nurse ("RN") who was hired by the Department of Veterans Affairs pursuant to 38 U.S.C. § 7401(1) and worked as a full-time permanent nurse in the Critical Care Unit ("CCU") at Charlie Norwood Veterans Administration Medical Center ("VAMC") in Augusta, Georgia. (DAB Tr. Vol. 1 at 28, 34, 201.) Ms. Beck began her employment at the VAMC in 2004 but has practiced as an RN since 1985. (Id. at 23-24.) In 1985, Ms. Beck also joined the military. (Id. at 25.) While on active duty in the United States Army and later in her career with the Reserves, Ms. Beck worked at several hospitals in a critical care capacity. (Id. at 26-29.) She earned a military designation or certification for this practice area. (Id. at 33.) In her seven years at the VAMC, Ms. Beck's performance was regarded as "at least fully successful or better." (DAB R. at 89.) She had never been disciplined or reprimanded in any way during her long career with the VAMC or through multiple commands and tours in the Army. (Id. at 9, 89.)

On September 12, 2008, the CCU assigned Ms. Beck to cover "Patient C," whom she cared for until his death on September 15, 2008. (Id. at 37-39.) During this four-day period, she workedthe twelve-hour day shift that begins at 7:00 AM. (Id. at 37.) Patient C was critically ill when he entered the hospital and he deteriorated quickly. (DAB Tr. Vol. 2 at 73.) His case was complicated by multiple comorbidities, including kidney dysfunction, a collapsed lung, altered mentation, severely compromised nutrition, and HIV/AIDS. (Id.) The VAMC ultimately transferred Patient C to the CCU because of issues maintaining his oxygenation and blood pressure. (Id. at 73-74.) After being intubated. Patient C suffered cardiac or respiratory arrest. (DAB R. at 190.) After this arrest, a chest tube was inserted and Patient C's blood pressure and pulse "normalized," but he remained sedated, restrained, and required mechanical ventilation. (Id.; see also CPRS Med. R. at 61, 63-64 80-82.)

A. Administration of Vasopressors

In addition to Ms. Beck, two doctors primarily managed Patient C's care during the relevant period, Dr. Kalla and Dr. Degani. (DAB R. at 111-14DAB Tr. Vol. 1 at 45.) Deciding that Patient C was hypotensive, on September 12, 2008 the doctors prescribed a course of intravenous "pressors" or "vasoconstrictors" — in this case, Levophed and Vasopressin — to support his blood pressure. (DAB Tr. Vol. 1 at 66-71; DAB Tr. Vol. 2 at 74-77; CPRS Med. R. at 65 (noting initiation of Vasopressin at 13:45), 74 (noting the discontinuation ofDopamine and initiation of Levophed).) An order to titrate² the drugs to maintain the Mean Arterial Pressure ("MAP")³ above 65 accompanied the prescription. (CPRS Med. R. at 65, 69, 70, 72, 74.) During the afternoon of September 12, Dr. Degani and Dr. Prosser visited with the family in light of Patient C's deteriorating condition to develop a plan of care and discuss a Do Not Resuscitate ("DNR") order. (Id. at 47.) The family agreed "to the current plan to treat but request [ed] a [DNR] status." (Id.) In other words, the family did not want CPR to be administered if Patient C coded, but they did wish "to continue what [the VMAC] was currently doing" so that certain family members who did not live nearby could visit him. (Id. at 48; DAB Tr. Vol. 2 at 79.) A full DNR appeared in Patient C's hard chart that same day. (DAB Tr. Vol. 1 at 95-96.)

The following morning, on September 13, Ms. Beck learned that there was to be "no escalation of care" (id. at 79, 85), and she made a record of that in her progress notes (CPRS Med.R. at 42). Indeed, Dr. Prosser's own progress note stated, "[F]amily desires no escalation of care — will maintain current dose of pressors but not increase." (Id. at 38.) Shortly thereafter, Ms. Beck received a verbal order from Dr. Degani to "wean" the Vasopressin off, but to continue titrating the Levophed.⁴ (DAB Tr. Vol. 1 at 79-81.) Accordingly, Ms. Beck titrated the Vasopressin off during her shift.⁵ (Id. at 111-12.) Dr. Degani, however, did not follow up with a written order, and Ms. Beck did not follow up with Dr. Degani or Dr. Kalla to sign any order as to the discontinuation of Vasopressin. (Id. at 80. ) Although doctors issued verbal orders from time to time at the VAMC, management had instructed the nurses not to accept them unless it was during an emergency because the doctors often failed to sign the corresponding written version in a timely manner or at all, thereby leaving a significant gap in the patient's records. (DAB Tr. Vol. 1 at 107-08; DAB Tr. Vol. 3 at 33-34.) In the absence of such a notation by Dr. Degani or Dr. Kalla, Patient C's night shift nurse, RN Melanie Ellis, resumed administration of the Vasopressin. (DAB Tr. Vol. 2 at 21, 25.)

Notwithstanding the lapse in Patient C's records as to the Vasopressin, Ms. Beck continued to administer the Levophed during her shifts on September 13 and September 14. (CPRS Med R. at 27, 41; see also Flowsheets 3, 17, 19.) Ms. Beck also increased Patient C's pain and sedative medications - Versed and Fentanyl - over the same period, in marked contrast to the levels administered by RN Ellis. (DAB Tr. Vol. 1 at 185-86; DAB Tr. Vol. 2 at 29-31; Flowsheets 3, 19.)

By the early morning on September 15, Patient C's MAP had fallen into the twenties. (CPRS Med. R. at 23; Flowsheets 10, 11.) Ms. Beck further noticed a considerable change in Patient C's appearance upon her arrival that day. In particular, his skin was muddled; he did not appear to be breathing over the ventilator; she could not feel any pulses even with a Doppler probe; Patient C did not cough during suctioning; she heard no bowel sounds; and she received no response of any kind to painful stimuli applied to Patient C's thumbs. (DAB Tr. Vol. 1 at 43-45.) Ms. Beck shared her initial assessment of Patient C with Dr. Kalla and Dr. Degani during morning rounds. (Id. at 45-46.)

Given Patient C's apparent unresponsiveness to the Levophed over the previous 12 hours as indicated by his declining MAP, Ms. Beck was confused about how to best proceed with administering the Levophed. (Id. at 78-79, 129; see also DABTr. Vol. 3 at 7-8, 18-19 (describing conversation with Ms. Beck in which she was "perturbed" about the absence of a plan of care for Patient C and not being able to get information from the doctors about "why they were doing what they were doing" with Patient C's plan of care) .) Specifically, she did not have guidance about how to reconcile the "no escalation" order with the standing order to maintain Patient C's MAP at or near 65, which would have required her to "keep going up and up [with the Levophed] until you can't go any further." (DAB Tr. Vol. 1 at 76-80.) To make a final assessment of the efficacy of the Levophed, she titrated it up "a point or two" to see if there was any change in Patient C's vital signs. (Id. at 116-18.) There were no changes and Patient C's MAP continued to decline. (Id. at 49; Flowsheet 11.)

At that point, Ms. Beck decided to complete a second full nursing assessment (DAB Tr. Vol. 1 at 49) and re-approach Dr. Kalla to discuss that the Levophed was not working (id. at 114). Ms. Beck told Dr. Kalla that she wished to "titrate" the Levophed.⁶ (Id.) Dr. Kalla told her "okay" but did not give anyspecific orders.⁷ (Id. at 114, 130.) Ms. Beck understood this verbal affirmation to mean that she should titrate the Levophed completely off because the drug was no longer having any-therapeutic effect. (Id. at 114-16.) Indeed, by 11:00 AM or 12:00 PM on September 15, Ms. Beck had turned off the Levophed drip, and she noted it on Patient C's "flowchart" or "flowsheet," the paper-based medical records that remain at the bedside. (Id. at 113-20, 129; Flowsheet 12.) In the hours after the Levophed was discontinued, Patient C's MAP fell into the teens. (Flowsheet 11.) Neither Dr. Kalla nor any other physician ever wrote an order to titrate the Levophed to zero or to discontinue the Levophed. (DAB Tr. Vol. 1 at 130.) Dr. Kalla later testified that the Levophed was "pretty critical" in keeping Patient C alive (DAB Tr. Vol. 2 at 90) , and Ms. Beck even acknowledged that given Patient C's condition, with the Levophed off "[s]ometime in the future" he "probably would not survive" (DAB Tr. Vol. 1 at 122-28).

B. Removal of Patient C from the Ventilator

Ms. Beck simultaneously served as a preceptor or mentor for RN Alexis Taylor during the September 15, 2008 shift. (DAB Tr. Vol. 1 at 47-48, 135.) RN Taylor had worked in the CCU for a matter of days. (Id. at 135.) Between 14:00 and 15:00, Ms. Beck reviewed Patient C's ventilator and noted that "the patient was delivering zero," meaning he was not breathing on his own. (Id. at 52.) Seeing this as a teaching opportunity on brain death policies and neurological assessments, Ms. Beck then conducted what she describes as a "respiratory assessment." (Id. at 52, 58-59.) To perform her assessment, Ms. Beck...