Forced Out, Nurse Who Defied Doctors Testifies

A former nursing supervisor at Kaiser Permanente Hospital in Harbor City, whose concerns about patient care once led authorities to charge two doctors with murder, testified last week that she was forced to resign from the hospital because of her actions.

Sandra Bardenilla recalled that she had been “scared stiff” when she learned that doctors had stopped giving nourishment to a comatose patient who unexpectedly survived removal from a respirator.

Doctors and the patient’s family had expected the patient to die. But when he continued to breathe without the respirator, the nursing supervisor recalled, she objected to his care. She said her intervention brought wrath from one of the doctors and unsympathetic treatment from hospital administrators who, in effect, forced her to quit.

Bardenilla recalled these 1981 events while testifying in a civil suit she filed against the hospital in Los Angeles Superior Court in 1983. The suit, which came to trial only last week, alleges that Kaiser wrongly terminated her employment because of her attempts to intervene on behalf of the patient and on behalf of nurses whom she supervised. It seeks $70,000 as compensation for lost earnings and benefits and punitive damages of at least $1 million.

The doctors were ultimately cleared of the criminal charges by the California Court of Appeal in a 1983 ruling that is still frequently discussed in medical and legal circles. The civil case is being closely watched by some groups concerned with how far a nurse can go in challenging a doctor.

Kaiser hospital contends it owes Bardenilla nothing because she resigned voluntarily and has continued to work elsewhere as a nurse.

A jury in the court of Judge David A. Workman will decide who is right in a trial that participants expect to last another two weeks.

The patient, Clarence Herbert, was a 55-year-old former postal worker and security guard from Carson who left a wife and eight children--and a legacy of landmark court decision on the propriety of doctors depriving certain comatose patients of nourishment.

The court decision came in the criminal case in which Herbert’s internist, Dr. Neil L. Barber, and his surgeon, Dr. Robert J. Nejdl, were charged with murder. The appellate court held that doctors have no obligation to provide their patients with treatments that are having no effect. Such treatments, the court said, can include intravenous food and water if the patient’s condition is deemed hopeless.

Herbert had come to the hospital for routine intestinal surgery. He had had a colostomy and wanted his intestines reconnected before he returned to work as a security guard at Hollywood Park race track.

Heart, Lungs Stop

The surgery appeared to go well. But Herbert’s heart and lungs stopped in a Kaiser recovery room that, according to testimony in the criminal case, was understaffed. By the time his heart was restarted, he had suffered extensive brain damage from lack of oxygen, and he was in a coma.

He was placed on a respirator that did his breathing for him and taken to the intensive-care unit, where Bardenilla was the supervisor.

Herbert’s wife has said she was told that his condition was hopeless and that his brain was dead. She said she therefore authorized removal of life-sustaining machines. Family members said Herbert had told them that was what he wanted in such a situation.

Barber ordered that the family’s wishes be complied with. Bardenilla testified she was stunned. She said she had been told that a test to determine brain activity had shown that Herbert still had some. In other words, he was not brain-dead. California law specifically allowed removal of life support from a patient only if he were brain dead or had signed a legal directive saying he did not want such treatment. Herbert had not signed a directive.

Bardenilla said she had also noted a memo from a Kaiser lawyer asking that he be contacted before life-support machines were removed. That memo, she said, had been ignored, even though a consulting doctor had attached it to Herbert’s chart.

The reason for the memo was that the law was unsettled. A joint committee of the Los Angeles County Bar Assn. and the Los Angeles County Medical Assn. had put out guidelines in 1981 that went beyond state law, saying physicians could disconnect a patient even if he were not brain dead, but was in an irreversible coma. But Bardenilla said Kaiser had not adopted the joint committee guidelines. She said she did not believe Herbert’s coma was clearly irreversible anyway. Nor had irreversibility been documented in the patient’s chart, as the guidelines suggested.

As the unconscious Herbert continued to breathe on his own, air entered his mouth through a tube that went to his windpipe.

Ordinarily, Bardenilla testified, nurses put a misting device on such a tube so that a patient’s secretions do not solidify and block off his lungs. But she said she was told by nurses she supervised that Drs. Barber and Nejdl had refused to let them install a misting device.

Authorization Sought

Bardenilla said she told a nurse to contact another doctor to get authorization for the device. She said she was concerned that blocked lungs might lead whoever did an autopsy to conclude that nurses had been negligent.

Later, she said, she got a call from an enraged Nejdl who said her “doctor-shopping’ had caused him embarrassment.

Nejdl, she said, asked if she did not realize that the point of withdrawing life support was to let Herbert die.

The next day, she said, Barber told her casually that he was worried about possible “criminal aspects” of the case, saying that everyone involved might be “implicated.”

When Bardenilla returned from a day off, she said, she learned that Herbert had been transferred to a surgical unit and that his intravenous fluids had been stopped.

Bardenilla said she met with the hospital’s director of nursing. She said she was concerned that Herbert would die from dehydration and wanted someone to review the case.

She said the director told her to apologize to Nejdl for the misting incident. Nejdl, as chief of surgery, would be in charge of a new intensive-care unit then being planned, and if Bardenilla hoped to supervise nurses there, she would need Nejdl’s support, she said she was told.

Bardenilla said: “I was directed at that point to be quiet--not to talk to the doctors and not to talk to the families” because the director of nursing would handle problems in the case.

Bardenilla testified she understood this directive, however, to apply to all cases. She said that, without being able to challenge doctors when she felt it was necessary and speak to families of patients, she could not do her job.

She also testified that her immediate supervisor told her that if she brought her concerns to the attention of authorities outside the hospital, “I would not be able to work at Kaiser or at any other hospital in Southern California.”

Called Coroner’s Office

When she learned that Herbert’s death, which came after a week without fluids, had not been reported to the county coroner’s office, she said she called the office to see if it should have been. The coroner’s officer referred her to the Department of Health Services, and she eventually found herself being interviewed by homicide detectives.

Bardenilla wrote in her letter of resignation that she was unable to compromise when it came to patient care.

But Kaiser attorney Curtis A. Cole told jurors that Bardenilla’s “decision to resign was entirely voluntary. . . . She did so because of her own philosophical views and perhaps because of some anger as well.”

He portrayed her as having publicly vowed to “get” Nejdl, which she succeeded in doing by setting into motion events leading to his prosecution for murder. She denied a vendetta.

Nejdl and Barber, who still practice at the Kaiser facility, were also cleared of liability in a wrongful death lawsuit filed by Herbert’s wife and children seeking civil penalties.

However, a Los Angeles Superior Court arbitration panel ordered Kaiser two months ago to pay the family $325,000 in damages and attorney fees. The panel did not give written reasons for its decision. But Russell S. Kussman, attorney for the Herbert family, said he understood the award was compensation for the hospital’s negligence in maintaining an understaffed recovery room.