Hyperbaric Chamber Alleged To Cause Decompression Sickness & Death Of Nurse
27 Jul 2007
Panama City, Florida - Death may have been the result of decompression sickness experienced by a nurse who was assisting a patient inside a hyperbaric chamber. In a Florida Appellate Court Opinion the Court reversed the dismissal of a complaint against a doctor who, it was alleged, failed to assure the safe operation of the hyperbaric chamber for which he was responsible.
The nurse was a member of the staff in a public hospital's obstetrics department. She also worked part time as an on-call nurse in the hyperbaric department of the same hospital. She accompanied a patient into a hyperbaric chamber. Subsequently, she allegedly developed decompression sickness and died.
Gross negligence was alleged on the part of the hospital-employer in order to avoid the worker's compensation immunity defense. It was claimed that the chamber was operated by the hospital despite the hospital's knowledge that it had no competent technical staff operating it.
The doctor was also alleged to have failed to diagnose decompression sickness in the nurse when she exited the chamber.
The doctor argued that the allegations against him should be dismissed because he did not have a doctor-patient relationship with the nurse, and the trial court agreed. The appellate court reversed the trial court's dismissal of the allegations against the doctor on the ground that a doctor-patient relationship is no longer needed to establish liability on the part of a health care provider.
The hospital sought to avoid liability in the civil action on the grounds that it was immune from suit under the Florida Worker's Compensation Act. Under Florida law an employer cannot be sued by an employee unless certain specific types of conduct or circumstances exist.
The court held that the action could not be dismissed on the theory that the plaintiff elected the remedy of worker's comp, because that is an affirmative defense which cannot be decided on a motion to dismiss unless it appears on the face of the complaint. Moreover, although the hospital could not be sued in its capacity as the deceased's employer, it could be sued as a surrogate for its negligent employees under the sovereign immunity act, which substitutes the government agency for the allegedly negligent employee.
Further, the action could properly be maintained under the "unrelated works" exception to worker's comp immunity because the plaintiff was not, at the time of the incident, primarily assigned to the hyperbaric department. Florida Statute 440.11(1) provides an exception to immunity for employees "assigned primarily to unrelated works". The court held that this provision is not limited to employees who are performing unrelated works at the time of the accident. See Holmes County School Board v. Duffell, 651 So .2d 673 (Fla.1995).
Vause v.Bay Medical Center, Douglas L. Stringer, M.D., Panama City Neurosurgical Associates, P.A., John Taylor, and Patrick Bowman, 20 Fla.L.Weekly D2414 (Fla. 1st DCA October 27, 1995).
