Nurse Cleared of Diverting Narcotics Considers Suing

An RN reported an unfortunate experience in which she was accused of diverting narcotics, which turned out not to be true.

She underwent a breathalyzer test and a urine drug screen, both of which were negative. Her urine test result was not available for four days, despite being done at the workplace’s laboratory, where the usual turn-around-time is half an hour.

One of the RN’s co-workers also told her fellow staff members and resident physicians that she was taken off the floor for diversion of narcotics.

It was determined that the RN was not diverting narcotics, but no apologies were offered to her. There was no subsequent report to the board of nursing because there was no proof of any diversion.

She is currently still working at the facility on the same units she has worked on for 15 years. However, she wonders if she has any legal recourse against the hospital and the co-worker who made the false accusations.

What Might the RN Do Legally?

This is an unfortunate incident for the RN, and it is certainly understandable that she is considering some legal recourse against her employer and her co-worker. As the RN stated in her inquiry, she is concerned about filing a lawsuit or taking other action because co-workers may not support her for fear of her suing them in the future. She also may gain a reputation as a “troublemaker” by other healthcare employers if she were to seek employment at another healthcare facility.

Such a decision is a personal one, and one component of the decision-making process is considering the chances of a successful legal challenge. A consultation with a nurse attorney or general practice attorney to become better informed could aid the RN in that decision. A consultation with an attorney also will help determine exactly what causes of action (allegations) against the employer might be.

Possible Causes of Action

In this case, one of the RN’s concerns would be the employer appearing not to follow its established policies and procedures for drug testing, specifically urine tests. Additionally, understanding whether or not the adopted policy is consistent with the state’s law on drug testing.

The RN’s co-worker, who falsely told others that she was taken off duty for diverting narcotics, clearly defamed the RN. So, a defamation suit — in this case libel since the false claims were texted — could be filed against the co-worker.

The employer also may be named in the defamation suit under the theory of Respondeat superior. The employer’s inclusion also might be based on an adopted code of conduct policy governing employees’ actions.

For example, the code might include not speaking untruths about fellow co-workers, that hospital iPhones are not to be used for personal use, and that a fellow staff member’s privacy and confidentiality must not be violated.

If the employer knew of the staff member’s texts and did not discipline the employee pursuant to its code and disciplinary policy, a court may find it legally responsible.

The RN also wonders …read more

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