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Karen Markus, JD, RN, is an attorney at law specializing in legal nurse consulting. She teaches healthcare law at Santa Clara University School of Law.

By Karen Markus, JD, RN
July 8, 1999

An estimated 8 percent to 17 percent of healthcare workers are allergic to latex, a highly allergenic natural rubber compound found in more than 20,000 medical products. Studies show that 75 percent of hospitals employ healthcare workers with diagnosed latex allergy.¹ You must know your legal rights in case you develop latex allergy, and you can avoid malpractice claims by being alert to signs of latex allergy in your patients.

What to watch for

Symptoms of a serious allergic reaction include facial swelling, rhinitis, eye symptoms, generalized urticaria, and respiratory distress shortly after exposure to latex. Anaphylaxis can also occur—at least 28 latex-related deaths have been reported to the Food and Drug Administration. Anyone who develops a reaction to latex should be evaluated by a physician and have a skin or blood test. Skin tests are accurate but can cause anaphylaxis in severely allergic individuals. Blood tests are less risky but result in a high percentage of false negatives, so symptomatic people with negative blood tests should still take latex allergy precautions.¹

Your legal options

Latex allergy sufferers can pursue a number of legal remedies, but unfortunately none offer a comprehensive solution. Most healthcare professionals are covered by workers compensation insurance for injuries and illnesses that occur on the job. Workers compensation covers your medical expenses for job-related illnesses, as well as two-thirds of your usual weekly wage if you’re unable to work. If you suspect you have a latex allergy, notify your employer as soon as possible because workers compensation claims must be filed within a year of the date of onset.

Employers are prohibited from discriminating against employees with disabilities by the Americans With Disabilities Act (ADA), a federal law that offers another legal option for those allergic to latex. Although latex allergy has not been specifically classified as a disability, it falls under the ADA’s general definition of a physical impairment that substantially limits major life activities. The ADA requires an employer to make reasonable accommodations to allow disabled employees to perform their jobs unless the employer can prove that the accommodation would impose an undue hardship.

Reasonable workplace accommodations include providing synthetic gloves for allergic healthcare providers and powder-free latex gloves (to decrease airborne latex) for their co-workers. Good housekeeping practices are also necessary to remove environmental latex dust. In severe cases, the employee may be transferred to a latex-free environment with a separate ventilation system. For example, in 1997 the Equal Opportunity Employment Commission brought suit under the ADA against a California hospital when it refused to transfer and later discharged a latex-sensitive nurse. She received over $66,000 in damages.²

Many healthcare professionals have chosen a third legal remedy: to sue latex glove manufacturers for damages under a products liability theory. The plaintiffs in these cases are making several legal arguments. They claim that the manufacturers of latex products knew of the dangers of latex exposure for many years but failed to warn users. They also allege that manufacturing shortcuts taken to meet the demand for latex gloves created by the AIDS epidemic have made them more likely to cause allergic reactions and that manufacturers are refusing to take steps to make latex gloves safer.

Right now over 250 lawsuits are pending in a large multidistrict litigation in federal court. The lawsuits are being coordinated by a court in Philadelphia because they involve many of the same issues. The first of these cases is expected to be heard early next year.³ A San Diego, Calif. court is overseeing more than 34 state court cases in a similar manner. The first case should be heard in November.⁴ Nurses should be aware that California law requires such cases to be filed within one year of when they knew or should have known of the existence of the allergy.

To date, only one latex product liability case has been decided. In 1998 a Wisconsin court awarded $1 million to a radiology technician who was forced to leave her job because of a latex allergy.⁵ Measures to limit the use of latex gloves have been introduced in several state legislatures, but so far none have been passed.

Your legal risks

If a patient is exposed to latex by a nurse or other healthcare professional who knew or should have known of the patient’s latex sensitivity, the care provider may be liable for negligence. For that reason, you should be aware of the risk factors as well as the symptoms of latex allergy. A major risk factor for latex allergy is previous exposure. Patients with spina bifida or congenital urogenital defects who have had repeated surgeries or indwelling catheters are considered high risk. Patients who have worked around latex products, either in their manufacture or as end users, may also have been sensitized. Patients with food allergies—especially allergies to avocados, bananas, kiwi fruit, or chestnuts—may have latex cross sensitivity.

Whenever possible, latex-sensitive patients should be placed in private rooms that have been thoroughly cleaned to remove latex powder residue. The patient’s chart should be labeled, and signs should be posted outside the door and above the bed. A latex-free cart equipped with anaphylaxis medications should be kept in the room and should accompany the patient to tests and procedures. Professional organizations such as the Association of periOperative Registered Nurses are good sources of information for creating a latex-safe environment.⁶

References

1. Burt, S. (1998). "What you need to know about latex allergy." Nursing98, 28(10).
2. U.S. Equal Employment Opportunity Commission v. Friendly Hills Regional Medical Center, No. 97-CV-3139, C.D. Cal., W. Div. (1997).
3. Multi-District Litigation No. 1148, U.S. District Court, E.D. of Pennsylvania.
4. Latex Glove Cases, Case #JCCP-4003, Superior Court San Diego.
5. Green v. Smith & Nephew AHP Inc., Wis. Cir. Ct., No. 94-CV-4199 (1994).
6. Kim, K.T., et al. (1998). "Implementation recommendations for making healthcare facilities latex safe." AORN Journal, 67(3).

For more information

Contact the Association of periOperative Registered Nurses, (303) 755-6300