Lunsford v. Board of Nurse Examiners

• Decision Date: 03 March 1983
• Docket Number: No. 13548,13548
• Citation: 648 S.W.2d 391
• Parties: Martha Regina Birzer LUNSFORD, Appellant, v. BOARD OF NURSE EXAMINERS FOR the STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 391

648 S.W.2d 391

Martha Regina Birzer LUNSFORD, Appellant, v. BOARD OF NURSE EXAMINERS FOR the STATE of Texas, Appellee.

No. 13548.

Court of Appeals of Texas Austin.

March 3, 1983.

Rehearing Denied March 30, 1983.

Nicolai von Kreisler, Alvis, Carssow & von Kreisler, Austin, for appellant.

Mark White, Atty. Gen., Bill Campbell, Asst. Atty. Gen., Austin, for appellee.

Before PHILLIPS, C.J., and EARL W. SMITH and BRADY, JJ.

PHILLIPS, Chief Justice.

Appellant appeals the judgment of the district court affirming an order of the Board of Nurse Examiners, which had suspended appellant's license to practice as a nurse in the State of Texas for one year.

On March 9, 1980, appellant was employed as a registered nurse at the Willacy County Hospital in Raymondville, Texas. On this date, Donald Wayne Floyd, suffering from chest pains, sought medical assistance at the Willacy County Hospital. Floyd's companion, Frances Farrell, entered the hospital with Floyd, and after leaving Floyd in the waiting room, sought medical assistance from further within the hospital structure. Floyd, travelling through Raymondville with Farrell on their way to Houston, complained of great pain and pressure in his chest accompanied by a pain and numbness radiating down his left arm. Farrell also testified that Floyd was extremely anxious and quite grey in color. Farrell, in her search for medical help, found a physician sitting at the nursing station outside one of the treatment rooms. She requested his assistance, but was instructed to seek help from a nurse because he was quite busy. Farrell insisted that the physician help Floyd, who she explained was suffering from chest pains, but was again instructed to seek the assistance of the nurse on duty.

Appellant Nurse Lunsford then approached the nurse's station and was instructed by the physician to send Floyd onto Valley Baptist Hospital in Harlingen, twenty-four miles away. In instructing appellant, the physician pointed to the hospital's only cardiac care equipment then in use on another patient. Appellant then went into the waiting room and found Floyd lying on a table complaining of his chest pains, which were also radiating into and under his arms. After questioning Floyd, appellant learned that he had not eaten anything unusual that day, nor had he engaged in any heavy physical exercise. Although she admittedly suspected "cardiac involvement," she failed to take Floyd's vital signs. She instead instructed Farrell to drive Floyd the twenty-four miles to Valley Baptist Hospital in Harlingen. She instructed Farrell to "speed" there and to drive with the auto's emergency flashers on. Appellant also instructed Farrell to use the auto's c.b. radio to summon aid on the way into Harlingen. The last thing appellant did was ask Farrell if she knew C.P.R. since there was a chance that she might have to use it while in route to Harlingen. Appellant then sent them on their way.

Floyd died shortly thereafter, less than five miles from the Willacy County Hospital in Raymondville.

The Board of Nurse Examiners, pursuant to Tex.Rev.Civ.Stat.Ann. art. 4525(a)(9) (Supp.1982-83), ¹ suspended appellant's license to practice as a nurse in the State of Texas for one year, ² after a hearing on appellant's actions with respect to Floyd's death. The Board found that appellant's conduct had been "unprofessional and dishonorable conduct likely to injure the public."

Appellant challenges the district court's judgment affirming the administrative order of suspension because (1) the order is not supported by substantial evidence, (2) appellant had no legal duty to care for Floyd, (3) the order is based upon an unconstitutionally vague agency rule which fails to state when a nurse becomes responsible to care for a patient, and (4) the order is void because (a) an essential finding of fact was omitted, and (b) the Board failed to make an accompanying concise and explicit statement of the underlying facts supporting the ultimate finding.

We overrule all points of error and affirm the judgment below.

I.

The primary question is whether the evidence as a whole is such that reasonable minds could have reached the conclusion the Board must have reached in justifying its order suspending appellant's license. Dotson v. Board of Medical Examiners, 612 S.W.2d 921 (Tex.1981). The quantity of the evidence is not important. "In practical result it has not taken much evidence under our discussions to qualify as substantial. In fact, the evidence may be substantial and yet greatly preponderate the other way." Lewis v. Metropolitan Savings and Loan Ass'n., 550 S.W.2d 11, 13 (Tex.1977). In reviewing all the evidence, we presume that the agency order is valid and supported by substantial evidence and the burden of proving otherwise is on the person challenging the agency order. Vandygriff v. First Sav. & Loan Ass'n. of Borger, 617 S.W.2d 669 (Tex.1981); Railroad Commission v. Entex, Inc., 599 S.W.2d 292 (Tex.1980).

The testimony adduced at the hearing before the Board shows that Floyd presented himself, complaining of chest pains, to appellant at the hospital where appellant was employed as a registered nurse, that appellant turned him away to another hospital twenty-four miles away, and that Floyd died minutes thereafter.

Appellant contends that she had no choice but to send Floyd onto the other hospital. Appellant claims that the hospital policy precluded Floyd's treatment. It appears that the hospital had a policy to send all patients to Valley Baptist Hospital unless they had a physician on the hospital's staff or unless it was a "life-death situation." ³ Clearly Floyd was in such a "life-death situation," and was not precluded treatment by the hospital's policy. Appellant also claims that it would have been futile to take Floyd's vital signs and inform the on-duty physician since the physician had already ordered appellant to send Floyd onto Valley Baptist Hospital. At the hearing, the physician admitted telling the appellant to send Floyd to Harlingen, but stated that he had no idea of Floyd's fatal instability since the only information he had was that Floyd was having chest pains. The physician also testified that the cardiac E.K.G. equipment was available to use on Floyd, along with various medications.

Appellant, in violation of Board Rule 22 T.A.C. § 217.13 [old rule 388.04.00.011(f) ]--which requires a registered nurse to evaluate the status of a patient and to institute appropriate nursing care to stabilize a patient's condition and prevent complications--failed to (1) assess Floyd's condition, (2) inform the attending physician of the "life-death" nature of Floyd's instability, and (3) take appropriate measures to stabilize Floyd's condition and prevent his demise. This clearly appears to be "unprofessional and dishonorable conduct likely to injure the public." Accordingly, we find reasonable minds could agree on the Board's order revoking appellant's license, and therefore, such order was based upon substantial evidence.

II.

Appellant next claims she had no "legal duty" to care for Floyd since he was not her "patient" or "client." Appellant contends that Texas law does not recognize a "nurse-patient" relationship. Initially, we hold that appellant's contentions that she owed Floyd no duty because Floyd was neither a patient of the hospital nor of the on-duty physician are without merit, since we hold that her duty to Floyd is not derivative from such a third party relationship. Her duty to Floyd stems from the privilege granted to her by the State of Texas in licensing her as a nurse, and therefore, could not be relieved by a hospital policy or a physician's order.

This appeal deals with the suspension of a privilege, granted by the State, for appellant's "unprofessional and dishonorable conduct," which resulted in the death of an individual. When appellant received the privilege of being licensed as a nurse in this State, she entered into a covenant to serve the people of this State with all her professional skills and powers. This suit is not brought in contract or in tort by one individual who feels he or she has been wronged by appellant's action or inaction, but this suit is brought by the people of this State for appellant's violation of her contractual duties to them to always act in a professional and honorable manner.

As to appellant's claim that this State does not recognize a "nurse-patient" relationship, we draw appellant's attention to Childs v. Greenville Hospital Authority, 479 S.W.2d 399, 401-02 (Tex.Civ.App.1972, writ ref'd n.r.e.). In Childs, the court quotes Professor Prosser for the proposition:

The problem of duty is as broad as the whole law of negligence, and ... no universal test for it has been formulated .... It is imbedded far too firmly in our law to be discharged, and no satisfactory substitute for it, by which the defendant's responsibility may be limited, has been devised. But, it should be recognized that duty ... is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection .... No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists. [emphasis added]

Prosser, Law of Torts, Sec. 53, 3rd ed. (1964).

In Childs, a nurse refused a woman's entrance to a hospital when the woman was in deep labor, because the emergency room admitting physician ordered the ailing woman to seek help from her personal physician. The nurse had examined the pregnant woman and had explained to the emergency room admitting physician by phone the woman's medical status. The lawsuit revolved around the accuracy of the nurse's communication of the physician's instructions. The Child's court, in reversing the dismissal of the lawsuit by the trial court, expressly found...