Liability for Employee Who Stole Drugs to Kill Spouse

When a registered nurse kills her spouse using medications from the care facility where she works, and then her son files a wrongful-death lawsuit against the facility, may the lawsuit proceed?

Issue of the Case

A registered nurse used medications, obtained from the long-term care facility where she works, to kill her spouse. The surviving son filed a lawsuit against the nursing home for the wrongful death of his father. May this lawsuit proceed? If so, where—in state court or federal court?

Facts of the Case

The wife in this case was a staff nurse at a long-term care facility in a southern state. She also had an administrative role as the assistant director of nursing. It was alleged that she obtained medications from the facility and used them to cause the death of her husband. The court described the medications as “including but not limited to liquid morphine.” It was alleged in the legal filings that an internal audit by the corporation that operated the facility later confirmed that the morphine had not been properly destroyed and had been disposed. It was argued that management’s failure to implement and maintain an adequate system of record keeping and controls to prevent the diversion of controlled substances from the facility and to ensure the proper destruction and disposal of those medications was in violation of state and federal requirements, thus becoming a substantial factor in causing the death.

The principal argument against the facility management was that it had failed to exercise care in hiring, training, retraining, and supervising the nurse in question. It was alleged that her capacity as a nurse and assistant director of nursing at the facility was a substantial factor in causing the death.

An additional argument was that management had been negligent in entrusting the nurse/wife with controlled substances.

A further issue in the case was that in addition to suing the long-term care facility management company, the surviving son included the director of nursing at the facility as a defendant when he filed the lawsuit. The allegation here was that the director had failed to exercise ordinary care in supervising the activities of the nurse/wife.

A wrongful death suit is a civil law action, not a criminal one, which is filed to recover monetary damages for causing the death of another, most commonly a relative.

Originally, the case had been filed in state court, but it was now being handled in federal court at the behest of the corporate defendant. To give that court authority over the matter, there had to be 1 of 2 bases for jurisdiction: either the case involved a “federal question” (ie, a pivotal issue arising under federal law) or there was diversity of citizenship (ie, the parties to the lawsuit were citizens of different states). The parent corporation of the facility was in another state, so there appeared to be diversity of citizenship on that basis, but the codefendant, the director of nursing, was a citizen in the same state as the plaintiff.

It was argued by the corporate defendant that the director of nursing had been added as a codefendant by the plaintiff merely as a strategy to defeat the diversity of citizenship argument, thereby keeping the matter in state court, which was viewed as being a more favorable venue for the plaintiff. The plaintiff made a motion for the case to be returned to state court.

The Court’s Ruling

The federal court ruled that the lawsuit was more properly handled in state court and issued a ruling shifting the matter to the appropriate local court.

The Court’s Reasoning

The federal court focused its attention on the case against the director of nursing to determine whether there truly was a solid claim against her or whether that was a specious argument to keep the matter in what the plaintiff viewed as a more favorable venue. The corporate defendant argued that there was no valid argument supporting the liability of the director of nursing for negligent supervision or general negligence. However, the federal judge concluded that, under the law relevant to the case, an employee can owe a duty to a third party that arises from his assigned position with the employer.

The court also addressed a separate argument advanced by the corporate defendant that the harm was not foreseeable. The judge concluded that the issue in the case is general foreseeability of harm, not “whether the specific mechanism of the harm could be foreseen.” He stated, “Clearly, injury to a third person resulting from the failure by a director of nursing to exercise ordinary care in implementing, controlling, or supervising the drug administration system at a medical facility is foreseeable.” Thus, the potential for harm could be foreseeable, which was an issue for the jury.

The case was sent back to the state court, where it had originated, for subsequent proceedings. The conclusion was that the state judicial system was the appropriate locus for handling the matter.

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.