Hospital Fires Nurse After Suspected Drug Diversion

The South Dakota Supreme Court upheld that a hospital did not wrongfully terminate an employee after a routine medication log check turned up missing opioid tablets.

Avera McKennan Hospital in 2016 terminated a nurse in its intensive care unit after discovering errors in her documentation of controlled substances, according to the decision.

The registered nurse denied any wrongdoing and sued Avera, alleging claims of wrongful discharge, breach of contract and defamation, and said Avera accused her without sufficient evidence.

Second Circuit court ruled in favor of Avera, and the nurse appealed.

The South Dakota Supreme Court this week said the circuit court properly granted Avera summary judgment. Claims of wrongful termination or breach of contract couldn’t be met because the nurse was an at-will employee, and defamation couldn’t be proven because the nurse couldn’t show if Avera provided false information or acted with malice.

Avera uses an automated medication dispensing system to track medications given to patients and tracks employees’ handling of the controlled substances to “identify possible drug diversion issues,” according to the decision, authored by Justice Patricia DeVaney. The system logs when employees access the system and withdraw medication and account for waste.

In March 2016, more than two years after the nurse was hired, a report showed an “atypically high removal rate of fentanyl ” in comparison to her coworkers over the last year, the opinion states.

A review of 16 charts from the nurse’s log found 12 areas of concern, according to the ruling, including that they could not account for 275 micrograms of fentanyl, and 3 milligrams each of Ativan, and hydromorphone. The review also found that the nurse did not scan 66 of the 669 medications to say whether they went to a patient, when and if there was any leftover.

Normally, Avera said those errors wouldn’t be of concern, but “the fact that a large portion of the errors related to fentanyl raised a red flag,” according to the decision.

The nurse self-reported and was reported by Avera to the South Dakota Board of Nursing, which conducted an investigation and ordered her to undergo counseling. Avera reported her to the South Dakota Department of Health, the Drug Enforcement Agency and the South Dakota Board of Pharmacy, none of which took action against the nurse.

The nurse sued more than a year later, saying Avera acted with malice and falsely characterized her “as a drug user, thief or diverter” and said the healthcare system didn’t properly investigate before reporting her to outside agencies. The nurse argued a jury should determine whether Avera defamed her. No evidence was provided that Avera “recklessly disregarded the truth” when it reported the suspected drug diversion, DeVaney wrote, so the circuit court was right in granting Avera summary judgment.