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Immunity for Comfort Care Narrowed

Published: Feb 02, 2023 by Brandon Smith

Late last year, the Tenth District Court of Appeals narrowed the application of the “comfort care” statute. Following this ruling, it remains imperative that healthcare professionals exercise independent medical judgment in end-of-life scenarios. Following a physician order is insufficient to grant a nurse or other healthcare practitioner immunity from professional discipline.

The comfort care statute, part of the Modified Uniform Rights of the Terminally Ill Act, provides immunity to healthcare personnel from professional discipline in certain circumstances related to end-of-life care.

In this case, Black v. Ohio Board of Nursing, the Board alleged that Mr. Black had failed to practice according to acceptable and prevailing standards of safe nursing care when he administered certain doses of fentanyl and midazolam to patients, pursuant to a physician order.

Mr. Black claimed immunity from professional discipline under the comfort care statute because the drugs were administered with the purpose of diminishing pain or discomfort and not for the purpose of causing death, even though their administration may have hastened or increased the risk of the patients’ deaths.

The Tenth District disagreed.

Because the Board of Nursing found that the doses of fentanyl and midazolam were “grossly in excess of any amounts of those medications that from an objective standpoint, could reasonably be considered as directed at the relief of the actual pain or anticipated pain or discomfort” of those patients, immunity could not be applied.

Moving forward, this ruling changes or clarifies three important points in comfort care.

First, that comfort care immunity is an affirmative defense. Once a licensing agency proves that a provider’s actions violated the law, the burden then shifts to the provider to prove that the immunity of the comfort care statute applies. The agency cannot use the fact that a provider’s actions would otherwise have violated the law as grounds for professional discipline once a provider proves that immunity applies.

Second, that in order for immunity to apply, the treatment in question must be objectively reasonable. In other words, the treatment actually provided must have the objective purpose of diminishing pain or discomfort in the patient. In Mr. Black’s case, the Board of Nursing found that the doses were too high to have any legitimate medical purpose. Absent this finding, it is likely the Court would have reached a different conclusion.

Finally, that a provider’s subjective intent must also be to diminish pain or discomfort in the patient.

Healthcare practitioners have an independent obligation to ensure that their actions serve a legitimate medical purpose. A physician order alone, as in Mr. Black’s case, may not protect a nurse or other provider from professional consequences.

If you have questions regarding this ruling or any other healthcare-related matter, you should consider contacting the experienced attorneys at Graff & McGovern, LPA. Attorney Brandon Smith can be reached at (614) 228-5800, x. 7 and at