Employment Law Daily Live patient testimony not required for due process in RN’s firing for medically unnecessary technique
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Friday, August 19, 2016

Live patient testimony not required for due process in RN’s firing for medically unnecessary technique

By Matt Pavich, J.D. Not persuaded that confronting and examining witnesses at a hearing would have altered its result, the Seventh Circuit found that a registered nurse who was terminated for using an inappropriate technique while conducting genital wart exams on male patients was not entitled to have live testimony from his patients during his termination hearings. The court found that the relevant inquiry was whether the technique he used was sound, not whether his patients were comfortable with it (Riano v. McDonald, August 17, 2016, Williams, A.). The former Navy corpsman, now an RN, worked at a Veterans Health Administration clinic which specialized in treating genital warts. An investigation ensued after a patient accused him of sexual assault. It revealed that the nurse manipulated his patients’ penises with his hands, sometimes used a moisturizing cream, and used non-medical slang for penises in order to put his patients at ease. The VA’s chief of dermatology stated that this technique was nonstandard and not necessary to identify genital warts, and the manager of the medical division recommended that the nurse be terminated. The nurse responded both orally and in writing that his technique, which he learned in the Navy, was appropriate. He appealed his termination and in the appeal hearing provided written testimony from several patients that they were comfortable with his technique and language. He was not, however, allowed to introduce live patient testimony, although the VA presented live testimony from numerous medical witnesses. The consensus of their testimony was that the nurse’s technique, while potentially helpful, was not medically necessary and that the use of slang, while perhaps useful in putting patients at ease, was medically inappropriate. The appeals board ruled that the nurse had failed to use language and technique suitable for a registered nurse and affirmed his termination, as did the district court. The nurse appealed. Relevant inquiry. There were two charges brought against the RN: inappropriate manual manipulation of male veterans’ genitals and unprofessional comments to veterans during examination or treatment. On appeal, he argued that he had been denied due process because the board had denied his request to introduce live testimony from his patients and had denied him the chance to cross-examine them. Neither the live testimony nor the cross examinations would have aided the nurse’s case, the Seventh Circuit concluded. The appeals board determined that the nurse’s language and technique were medically inappropriate. That decision, wrote the court, "…was not dependent on the subjective feelings" of the patients. The fact that some of the patients may not have felt uncomfortable during the examinations was irrelevant, the court held, because their comfort level had nothing to do with whether the technique and language were medically necessary. The question of what was "necessary" in a genital wart exam, the court ruled, was a medical question and the board, having heard that the RN’s technique was not necessary, affirmed the termination. Equally irrelevant, ruled the court, were the nurse’s subjective intentions, as the board’s termination decision was not based on intent. The nurse argued that he had learned his technique in the Navy, but the board heard and accepted testimony that medical corpsmen and registered nurses receive different levels of training. What may have been appropriate when the nurse was a corpsman was no longer appropriate once he became a registered nurse. The habits and techniques learned by the nurse while in the Navy were not an excuse to continue those habits after he had gained the proper training as an RN. Because the board had not relied upon the subjective feelings of either the nurse or his patients in determining that his termination was warranted, there was no due process violation in denying live testimony and cross examination as to those issues.

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