This month, we look at a recent case out of Nevada where the court was asked to decide if an error involving a fatal dose of morphine was medical malpractice, requiring an affidavit from a medical expert, or whether it was ordinary negligence, which does not have such a requirement.

The facts of the case were uncontested. The patient, Mrs M, was an elderly resident of a nursing home. Nurse D was an employee of the nursing home. One busy day while taking care of multiple patients, Nurse D mistakenly administered to Mrs M 120 milligrams of morphine which had been prescribed for another patient. As soon as Nurse D realized her mistake, she notified her supervisor. The supervisor contacted the physician in charge who ordered that naloxone be administered to counteract the morphine, and that the patient be transported to the hospital if she did not respond.

Naloxone was administered and seemed to work, so the nursing home staff decided against sending Mrs M to the hospital at that time. Instead, her vital signs were monitored, and her patient notes indicated that at 5 pm on the day that the morphine and naloxone had been administered, Mrs M was alert and verbally responsive.

However, the following morning Mrs M’s daughter arrived to check on her and found her unresponsive. Mrs M was transported to the hospital but passed away 3 days later. The death certificate listed morphine intoxication as the cause of death.

Mrs M’s bereaved daughter filed a lawsuit against the nursing home, alleging wrongful death. The complaint did not name Nurse D as a defendant nor did it explicitly assert a claim for professional negligence.

The complaint alleged that Nurse D administered the wrong medication to Mrs M and thereafter failed to properly monitor or treat the patient, leading to her death. The complaint alleged that the nursing home’s negligent mismanagement, understaffing, and the way the nursing home was operated led to the erroneous administration of morphine and the failure to treat and monitor Mrs M as the drug took her life. Specifically, the complaint maintained that the nursing home had a duty to properly train and supervise its staff to act with the level of knowledge, skill, and care ordinarily used under similar circumstances by similarly trained and experienced nurses.

The nursing home made a motion to dismiss the case, arguing that in essence the complaint was a professional negligence complaint, and thus the plaintiff was required by statute to file an affidavit from a medical expert, which the plaintiff had not done. The district court agreed with the defendant that an expert medical affidavit was required, and that the failure to file it rendered the complaint void and the court dismissed the case.

The state statute defines professional negligence as “the failure of a provider of health care, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” It goes on to provide that if an action for professional negligence is filed without a supporting affidavit from a medical expert, it will be dismissed. The plaintiff appealed the dismissal of the case, arguing that accidentally administering a drug to the wrong patient and subsequently failing to monitor and properly treat that patient are matters of ordinary negligence (as opposed to professional negligence) and thus there is no requirement for a medical expert.