When a jury decided three years ago that a Utah care facility should pay nearly $1 million to the family of a patient who died after a nurse mistakenly gave him the wrong medicine and then concealed her error until it was too late to save him, both parties in a wrongful-death suit were unhappy with the verdict.

Jurors determined that the nurse was not acting in the course and scope of her employment when she hid her mistake and therefore, Provo Rehabilitation and Nursing was not vicariously liable for the concealment. The jury allocated 65 percent of the fault for patient Jack Adams’ death to the initial error and, as the nurse’s employer, the nursing home was ordered to pay $910,000 of the approximately $1.4 million damage award, plus court costs.

But lawyers for the man’s relatives contended that knowledge of the concealment should be ascribed to Provo Rehab and that it should pay the full award.

On the other side, Provo Rehab’s attorneys argued the plaintiff had failed to produce sufficient evidence that the mistake itself — rather than the nurse’s concealment of the mistake — caused Adams’ death and that the trial judge should have entered a verdict in favor of the care facility.

Both parties appealed and now, the Utah Court of Appeals has sided with the family, ruling that Provo Rehab must pay the entire $1.4 million award.

In a 3-0 opinion handed down last month, the court noted that as with all corporations, Provo Rehab can act only through agents, be they officers or employees. Under the law, the general rule is that the knowledge of agents concerning the business they do for the employer is imputed to the employer, according to the decision.

So, the opinion says, all of the nurse’s knowledge that was material to her work for the nursing home, even facts she did not share with others, “is automatically imputed to Provo Rehab.” And the conclusion that the facility had constructive knowledge of the mistake means there could not have been concealment, the opinion says.

Writing for the court, Judge Ryan Harris said that in the absence of concealment, “we have no trouble concluding that the expert medical testimony presented at trial was more than sufficient to establish that the Medication Error was a proximate cause of Adams’s death.”

The now-former nurse, Camille W. Jensen, declared bankruptcy and was dismissed as a defendant after the jury verdict was returned in May 2015. She was not a party to the appeal.

The family’s attorney, Brad Parker, applauded the decision and compared the case to a situation where a grocery store employee sees a puddle of water on the floor. If the employee doesn’t tell the manager, that does not relieve the employer of liability if an innocent customer slips and falls, he said Friday.

Stephen Hester, an attorney who represents the nursing home, said Provo Rehab will appeal to the Utah Supreme Court. He said the concealment occurred outside the course and scope of the nurse’s employment, and that the concealment, not the error, caused the death.

“It eliminates an employer’s ability to defend itself in these circumstances” Hester said of the ruling, adding that an employer is entitled to defend itself when it has a rogue employee.

On Feb. 8, 2010, Jensen worked a six-hour swing shift as a licensed practical nurse at Provo Rehab. On a previous occasion, a narcotic pill ended up unaccounted for at the end of her shift and she had been told she would be fired if a similar incident ever occurred again, the opinion says.

At about 8 p.m., Jensen began a “medication pass,” walking down a hallway with a movable cart that held medicine she needed to administer. When she got to Adams’ room, the nurse made a crucial mistake: She mixed up his identity with that of another resident, the opinion says.

Jensen gave Adams three narcotics that had been prescribed to the other resident, according to the opinion.

A few minutes later, Jensen realized what she had done, and decided to conceal the mistake, the opinion says. She gave the other resident Adams’ less-potent medications and falsified medical records so they indicated both had been given the proper medicine.

Jensen later testified that at the time she did not think administering the incorrect medications would harm either man.

The nurse’s decision to hide what happened deprived Adams of an opportunity to be saved by the administration of another medication — known generically as naloxone — which will almost always reverse the effects of a narcotics overdose, the opinion says. The 71-year-old Spanish Fork resident was discovered not breathing the next morning and taken to a hospital, where he died two days later on Feb. 11, 2010.

The opinion says that at the time of his death, Adams had been at Provo Rehabilitation for 11 months for treatment for a number of medical conditions, including congestive heart failure and diabetes.

A retiree who had worked for Amoco, Adams enjoyed being with his family and tending to his roses, according to his obituary. He had celebrated his 50th wedding anniversary a few months prior to his death.

Jensen told her employer about the medication mistake after Adams’ funeral, according to a news release from the family’s attorney. Adams’ wife, Verlo Jean Adams, and daughter, Shaunna Lane, filed the wrongful-death suit in 4th District Court in December 2010. The widow died in 2011.

I am not sure what legal decisions set precedents and what won’t, but this is a interesting conclusion to a death that may have been caused by both a medical error – giving a pt the wrong medication – and the nurse covering up the error.  Does this have applications to health care corporations (insurance companies, hospitals ..etc..etc ) where the employee is following the corporation’s policies and procedures in regards to how many opiate a prescriber may give to a pt or prohibit the prescriber from providing opiates to any/all pts.

How this decision may impact the ability of pts and/or get the interest of law firms that wish to go after the “deep pockets” of these corporations for violating various discrimination laws and deterioration of the pt’s quality of life and/or inability to do many daily self-care functions that they were able to perform before their pain management meds were reduced or taken away.