School Nurse sued under 4th Amendment

[feelix, RN]

Here is the Medscape link if you are on it: http://www.clinicaladvisor.com/exam-brings-trouble-for-school-nurse/article/379793/?DCMP=EMC-CA_UPDATE&cpn=tyl,eliqcard&dl=0&spMailingID=9786476&spUserID=NDc4MTU3NzEyNAS2&spJobID=402498577&spReportId=NDAyNDk4NTc3S0

Basically, mom was called twice for burning in peri area and she dismissed it as normal. Nurse just did a visual check of peri with witness present. Now mom is suing for 4th amendment violation of unnecessary search. I think it was not a search but an assessment, and necessary.

Been there done that. I think the only mistake she made was ask the girl to part her labia to take a look. I always deferred that part.

She should have instead called CPS.

[feelix, RN]

More info:

The attorney acknowledged that this was an unusual case. "There have been cases dealing with searching children in school, but they generally apply to looking for weapons or illegal drugs. This is unusual because it was a medical exam. Were you given guidelines when you started your job?"


Ms. T responded that she had not been given guidelines, specific training, or specific instruction.


The attorney filed a motion to dismiss, but the motion was denied by a district court, which held that "Ordinary common sense puts school administrators on notice that a search of a student's naked body grossly offends the student's sense of decency, self-respect, and bodily privacy." 


Ms. T was crushed, but an appeals court held that she was, in fact, entitled to qualified immunity because she did not have fair warning that her medical assessments were subject to the Fourth Amendment protections.


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[feelix, RN]

The appeals court stated that the school and the school district were really at fault here. Nursing guidelines did exist, but they had never been explained nor distributed to nurses in the school district. Therefore, the school nurses did not know what their restrictions were. 


Had Ms. T been informed when she began work at the school that absent an emergency or clear parental consent, a genital examination is prohibited, she would merely have notified the child's mother. Ms. T, without any other guidance, believed that a visual examination was not harmful to the child and might clarify the cause of the child's discomfort. In order for Ms. T to have been liable in this case, she would have had to know what her restrictions were, and would have had to violate them knowingly.


[feelix, RN]

[h=2]Protecting yourself
[/h] Because Ms. T was given no guidelines or information when she started her job, she could not have protected herself. However, guidelines did exist, and those guidelines restricted medical examinations of students, and specifically prohibited genital examinations absent parental consent or a medical emergency, neither of which existed in this case.


Whether you are a school nurse or you practice in an office, clinic, or hospital, most places of employment do have guidelines, and you should make sure you know what they are. In most cases, being unaware of guidelines is no protection.

This case was different because of the qualified-immunity protection that is offered to those working for the government. However, Ms. T would not have been protected from the lawsuit had the school adequately explained the procedures to her. Ironically, in effect it was the school's failure that protected Ms. T from liability in this case.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.


[NewYorkerGirl]

Wasn't there a head of nursing at the school board she could have called and asked? I worked as a school health aide, and was told if I had any questions, call Nurse X and here's the number.

[feelix, RN]

NewYorkerGirl,

Even my school district did not give us instructions in this area. I just used common sense.

[JenTheSchoolRN, BSN, RN]

Interesting. I would have never conducted such an exam, ever! Nope, Nope, Nope.

If mom refused to follow up, I *might* look at my paperwork and see if mom gave me permission to exchange health care info with the student's provider (depending on student's age as I do deal with several students turning/already 18), but I, too, would turn to CPS if mom refused to follow up.

And document, document, document.

[elkpark]

Even if the nurse hadn't been "given" guidelines, protocols, instructions, by her employer, I would think a responsible professional would ask and go looking for them (esp. before hauling off and doing an invasive physican exam on a young girl at school). I would never do an exam as described. I agree calling CPS (for concerns of medical neglect) would be a better choice, and let them deal with it. That's their role

[Flare, ASN, BSN]

I just would not have done the check and would have documented that i had called the parent multiple times ( assuming that the parent called because the child was in a significant amount of discomfort).

What I do often do, if the child is capable and most regular ed children from k and up can do this, is have the child go into my bathroom and look at themselves and tell me if they see any redness, discharge, etc. They usually can tell me with fairly good accuracy, even the little ones. I will then tell the parent that I cannot inspect their child myself, but that the child looked at themself and told me there was redness or whatever the finding was.

Unless there is some life or limb type issue going on, i'm not inspecting a child down yonder.

[rbytsdy]

Very sad. I would not exam a child there. Luckily, when I started at my school, that was one of the things the other nurses told me. In fact, I had CPS in the other day wanting to look at a child's buttocks since he said his parents hit him there with an object. I told them I was sorry but I could not be part of that kind of exam. I told them it was outside the scope of my practice. In reality, the child would not remember the CPS workers. He WOULD remember me though!

[Tina, RN]

I would handle it the same way as Flare posted above.

I always refuse when a staff member wants me to check out private areas of students. I will ask the child to go in my bathroom, and tell me what they see. Then I'll call the parent and let them know. But, I personally, am not doing any of those inspections. Not even with a chaperone present.

[Spidey's mom, ADN, BSN, RN]

I would never do that either.

When I suspect child abuse, I call CPS and the Sheriff. They are responsible for taking the child to the ER for examination.

The policy about mandated reporting is clear - you do not have to do any investigation and found out if something is true. That isn't our role and we are protected from any repercussions with reporting.

Honestly, I cannot imagine doing this kind of an exam on a child as the school nurse.

I did however help the physician with these kinds of assessments when I worked in the ER . .. .but that is totally different.