Nurse's conviction for taking Fentanyl from OR affirmed.

PositionNursing Law Case of the Month - Case overview

CASE ON POINT: State v. Erwin, 2011 VT 41 209-309 A.2d (4/7/2011)-VT

ISSUE: It is unusual for a criminal prosecution of a nurse to wind up in the Supreme Court of any state. However, a nurse who was charged with, and convicted of expropriating Fentanyl from the OR for his own use appealed his conviction to the Supreme Court of Vermont.

CASE FACTS: James Erwin, a traveling nurse, was charged with obtaining a regulated drug by deceit and possession of a narcotic in Violation of Vermont law. The State's Information alleged that while working at Copley Hospital, Nurse Erwin secretly removed asyringe of Fentanyl, a Schedule II regulated drug from an anesthesia cart in the hospital's OR and took the drug for his own use. Fentanyl is a clear-colored, free-flowing liquid narcotic, similar in appearance to water. The information also alleged that Nurse Erwin knowingly and unlawfully possessed a narcotic drug since he was found to have Fentanyl in his system when he had no lawful prescription for the narcotic. The salient evidence at trial was that Nurse Erwin had worked at Copley Hospital for numerous months prior to the incident in question. He was assigned to the hospital's OR area, which consisted of two operating rooms connected by a substerile room. The substerile room contained a sink and other items that might be needed in the operating rooms. Nurse Erwin essentially acted as a patient advocate. He was responsible for patients from the time that they arrived from the holding room for a surgical procedure until the time that they were transferred to a recovery nurse in the recovery room. D.B. also worked in the operating room area and she knew Nurse Erwin from working with him for a lengthy period of time . D.B. was an operating room assistant, and responsible for facilitating the transition between surgeries by stocking the shelves, turning over the rooms, helping the anesthesiologist, and performing other necessary tasks. On June 15, 2006, D.B. observed Nurse Erwin near a cart that held the anesthesia supplies needed for surgery. D.B. was particularly mindful of Nurse Erwin because she had noticed him spending a lot of time near this cart over the prior weeks. Nurse Erwin had no job responsibilities, which would require him to be there. On the day in question, she saw Erwin take something off the cart and very quickly put it into his chest pocket. Several minutes later, D.B. saw Erwin at the sink in the substerile room filing a sterile...

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