Legal Questions
All Legal Questions articles are written by Penny Simpson Brooke, APRN, MS, JD. Penny Simpson Brooke is a professor at the University of Utah College of Nursing in Salt Lake City. She's also on the board of directors and president of the foundation of The American Association of Nurse Attorneys.
Ethical Problems
All Ethical Problems articles are written by Susan A. Salladay, RN, PHD. Susan A. Salladay is director of The William Jennings Bryan Center for Excellence in Bioethics, BryanLGH Health System, Lincoln, Neb.
SECURITY IN THE E.D.
Feeling burned
I'm an ED nurse in a large, urban hospital. Last month a man came into the ED, apparently drunk, swinging some kind of bottle and yelling. Because I'm a strong guy, I tried to help subdue him—and got a face full of corrosive cleaner for my trouble. Now I have permanent burn scars.
I've been advised to sue the hospital for not providing a safe workplace. I figure the hospital will say it couldn't have predicted or prevented the incident. What's your opinion?—D.K., TENN.
The ED is the one area of the hospital where the unexpected is expected, and ED nurses recognize that they work in a high-risk environment. But nurses have rights. You shouldn't have to work in a dangerous environment or play police officer.
The hospital where you work may have been negligent in not providing enough security in the ED. All facilities should have a violence prevention protocol in place for situations like this; if they don't, the Occupational Safety and Health Administration can cite them or they can receive other penalties. If a situation like this ever happens again, call for help per the protocol.
In most states, the Workers' Compensation Act prevents an employee from suing his employer if he's injured on the job. Employers pay into a fund that covers your medical care and compensation while you're unable to work. Check with your state agency to see what benefits you're entitled to. If these benefits don't adequately compensate you for your permanent injuries, consult a lawyer to see what other avenues your state offers for your protection.
Nurses shouldn't accept violence as part of the job. Know your rights and demand reasonable protection from your employer.
BREACH IN CARE
When to name names
The other day, I had to leave work suddenly because my child got sick. Before I left, I asked the charge nurse to give my patients their next round of medications.
I returned 4 hours later and saw from my patients' medication administration records that they hadn't received their scheduled doses. When I asked the charge nurse what had happened, she clapped her hand to her mouth in horror. She said that things had gotten extremely busy just after I'd left, and she realized, thinking back, that she'd forgotten to distribute the medications. I administered them at once and no one was harmed.
I wrote an incident report and noted in my patients' charts that the charge nurse had forgotten to give them their medications. Now she's furious at me, saying I've made her vulnerable to lawsuits by including her name in the charts. Was I wrong to name her in my documentation?
—N.E., ORE.
Yes. A patient's chart should include only information relevant to his medical condition. In this case, the charts should indicate that medications were given late and the patients' responses, if any. No names or excuses should be included. Save those details for the incident report.
Incident reports are legally protected risk management documents in some, but not all, states, but patient charts are fair game for a plaintiff's attorney. For future reference, ask your hospital's risk manager or attorney which information to document when patient care is breached and where, when, and how to do it.
Your charge nurse isn't the only one at risk for a lawsuit. The greater issue here is your leaving your patients without formally transferring their care to another nurse during your absence. This constitutes abandonment. Simply asking another staff member to give patients their medications or treatments is never safe.
If you must leave for an extended period, ask the nursing office who should replace you. Then give report and sign off your patient assignments to the other nurse before you leave the unit.
LAWSUIT DEFENDANT
Shrinking VioletI've been named as a defendant in a negligence lawsuit. My attorney has been trying to prepare me to testify, but I'm terrified of getting up before a judge and jury. I told her I won't do it, but she says I don't have a choice.
I always thought that the defendant doesn't have to take the stand. Are the rules different for a civil proceeding?—S.L., ARK.
The rules for criminal and civil procedure are quite different. Because criminal penalties are more severe, the defendant has the protection of the Constitution's fifth amendment, which allows her to decline to give testimony in her own behalf.
In civil cases, the defendant faces a plaintiff, not "the people." If you don't tell your side of the story, the plaintiff's charges will stand as your admission that the plaintiff is right. Let your attorney help you prepare so you'll know what types of questions to expect and how she can support you during your testimony.
Be completely honest when you talk with your attorney about the facts of the case—even if you're afraid to testify because you believe you may be guilty. She needs to know the whole story to defend you.
CONFIDENTIALITY
Just the checks, ma'am
My friend's son, who recently turned 18, has been admitted to a psychiatric hospital for treatment of severe depression. He's a student and lives with her, so he's covered by her insurance. Plus, she's signed a waiver promising to pay any expenses that insurance doesn't cover.
Amazingly, when my friend asked the staff for details about her son's treatment, she was told that because he's an adult, she can't get that information without his consent. When someone's footing the medical bills, is it legal to keep her in the dark this way?—P.B., ME.
The laws in our country strongly protect the confidentiality and privacy rights of psychiatric patients. Maybe this special protection is because of the stigmas that still surround mental health issues and the fact that these patients sometimes can't stand up for themselves.
Even when a parent's insurance covers an adult child's treatment and the parent agrees to pay any costs not covered by insurance, that parent still can't obtain information about the child's treatment unless he gives consent. So, unless your friend's son gives permission for her to receive details and updates on his treatment from his providers, she'll have to rely on him for any information--and he may choose not to give it.
VERBAL ORDERS
Ignorance is risk
Two weeks ago, I started a position in a CCU, and I love the job. During two separate emergencies, however, the resident cardiologist gave a stat verbal order for a drug I was unfamiliar with. Both times, I just went ahead and administered the drug as ordered, and the patients responded well. After these emergencies, I reviewed the drug information so I'd be better informed next time.
In hindsight, I'm wondering if what I did was risky. During an emergency, is it safe to just follow orders if I'm not sure the drug is appropriate for my patient?—D.V., NEB.
Administering drugs you're not familiar with is risky, but it's also risky to delay responding to a stat order. As part of her role, the prescriber orders what she believes will benefit the patient. You're supposed to understand the implications of any drug you administer. If you have your facts straight and disagree with a prescriber's order, you need to share your opinion with her in a nonchallenging but assertive manner.
Because you'll receive stat orders frequently in your new position, take time now to become familiar with the medications commonly ordered in the CCU. Ask your preceptor or staff-development instructor for help and review drug information in a reputable drug reference. You should also take a course in advanced cardiac life support to increase your confidence in emergency situations. That way, you'll feel more confident when you don't have time for on-the-spot research.
TAKING PATIENT HISTORIES
Ticked-off physician
I'm an RN working in a clinic. Last October, a 60-year-old man came in complaining of fever, chills, and fatigue. During assessment, he told me he'd had a splenectomy 5 years before. He also mentioned that he'd recently returned from a month's hiking trip in Europe.
I noted the history of splenectomy in his chart but didn't think to include the hiking trip. When the physician saw the patient, she diagnosed a viral infection and asked him to call if his symptoms didn't resolve in a few days.
As it turned out, the patient had babesiosis, a tick-borne protozoal infection that he probably got while hiking. Apparently the splenectomy made him especially vulnerable to this disease. He developed acute renal failure, went into a coma, and died.
Now his family is suing the clinic because we didn't diagnose the babesiosis in time to successfully treat it. The physician is telling me that not mentioning the European hiking trip was a serious omission; if I had, she would have considered other illnesses as a possible cause for the man's symptoms. Is it my fault that she initially misdiagnosed this patient?—W.R., N.Y.
Clearly, the patient in this case thought the hiking trip might be significant, and you should have documented it. It isn't up to you to decide what information to pass on to the physician. If you'd included this detail and the physician didn't pick up on it, your situation would be more secure. On the other hand, the physician should have asked the patient, while performing the history and physical, if he'd traveled.
In court, your actions will be evaluated according to what a reasonably prudent nurse would do in similar circumstances. If a jury considers the omission critical and a key factor in the physician's initial misdiagnosis, you could be found negligent.
Your nurse's notes should always include quotes from the patient. Include all that he tells you as well as your physical assessment findings.
TRIAGE PROTOCOL
I work in a drop-in clinic at a resort area. Most of the patients come in with sprains, low-grade fevers, or lacerations. They sign in, then a clerk calls them in the order they arrived and prepares their charts. Depending on how busy we are, patients may wait 30 minutes or more before I see them.
Yesterday, a young woman with an infant signed in at 10:30 a.m. When I examined the baby at 11:05 a.m., he was very lethargic and appeared dehydrated. The mother told me he’d been vomiting and hadn’t wet his diaper since the evening before. The physician assistant immediately started an I.V. line, and the infant was taken to a hospital.
Although I acted quickly after assessing the infant, I think the wait might have worsened his condition. If he’d been harmed and his family brought charges, would I be held to a different standard of care because I work in a clinic?—R.L., N.C.
No. If you were charged with negligence, your care would be compared with what a reasonable clinic nurse would do under similar circumstances. It sounds as though you responded swiftly and appropriately once you saw the infant, but he shouldn’t have had to wait for help.
The clinic could be held liable if this child were harmed because of its current policy. The problem lies in the practice of having you see patients in the order they arrive rather than triaging them to prioritize their urgency. In some clinics, the clerk is expected to bring especially ill patients to the nurse’s attention immediately. However, an untrained clerk isn’t qualified to recognize serious health problems, so the only safe policy is to have a triage nurse determine the order in which you see patients.
ADVANCE DIRECTIVES
One of my patients died last week. He’d had an attorney prepare a document willing his body to science and a copy was in his chart. As soon as he was pronounced dead, though, his family insisted that they wanted to perform religious rituals that would take at least an hour. A few colleagues and I tried to explain that this would impair tissue integrity, but they didn’t seem to care. We finally had to call security to remove them from the unit.
This turned out to be a no-win situation. First, the family didn’t say good-bye to their loved one as they’d wanted. Second, I’m worried that my colleagues and I might face legal problems because we stood up to the family to protect the patient’s wishes. Legally, what’s the best approach to a situation like this?—N.K., OKLA.
Anytime surviving family members disagree with a dying or deceased patient’s wishes, the staff is placed in an awkward, if not dangerous, position. And all too often, the family’s wishes override the patient’s directives because the staff is afraid of a lawsuit.
Because this happens, though, doesn’t make it right. When a patient has a valid advance directive, you should do all you can to uphold it. But as a patient advocate, you also need to consider his family’s feelings. If you’re aware that a patient is donating his body or organs, you should help prepare his loved ones for what to expect when he dies. If this family had understood ahead of time that the patient’s choice was legally binding and that his body would have to be removed immediately, they might have found a more timely way to say good-bye.
Don’t try to handle a delicate situation like this by yourself. Enlist the help of clergy or a social worker to prepare the family. And ask the hospital’s legal staff to talk with them to reinforce the seriousness of the patient’s intentions. Handling such a potentially upsetting situation calls for teamwork so everyone involved will have a positive outcome.
ALTERNATIVE THERAPIES
I’m an advocate of alternative therapies and know several practitioners in various fields. However, while on duty, I hesitate to say too much about them for fear of getting into trouble. If a patient asked me to refer her to someone who practices alternative therapies, how much could I legally say?—D.F., MD.
You’re wise to be cautious. Unless your hospital’s policies allow nurses to make referrals, you shouldn’t do it. Many alternative therapies carry risks, whether used alone or in combination with other treatments.
If a patient were to disregard medical advice in favor of an alternative therapy you recommended and she were harmed as a result, you could find yourself in hot water legally. In one case, a nurse who gave a patient information about treatments the physician hadn’t ordered was charged with interfering with the physician/patient relationship. As a result, she spent years defending her nursing license.
If you believe that an outside resource might help your patient, tell her primary care provider and let her make the recommendation.
CO-SIGNING CHARTS
As an RN in a medical/surgical unit, I co-sign the chart entries of graduate nurses. Today, a graduate told me that she’d failed her NCLEX-RN exam. Now I don’t know whether to continue signing her documentation or whether her responsibilities need to change. Can you advise me?—L.G., CALIF.
Your facility’s written policies should answer your question. If you can’t find an answer there, consult your nurse-manager. Facility policy must conform to the state board’s regulations.
The situation you describe also affects the other nurses working with this unlicensed graduate. Although you needn’t take it on yourself to handle the problem, you should urge the graduate to inform your nurse-manager that she failed the exam. Your nurse-manager, in turn, should clarify what responsibilities the graduate is permitted to handle and how you’re to supervise her. This graduate can’t function as if she were an RN until she passes that test.
TERMINATION THREAT
I’ve worked at the same hospital for 14 years. A few weeks ago, my domestic partner was critically injured in an auto accident and I’ve been at her side ever since. Now my employer is telling me I must return to work or lose my job. My partner and I have been together for 20 years, and I won’t leave her until her condition stabilizes. Can my employer legally terminate me while I’m caring for a loved one?—S.L., N.D.
Unfortunately, yes. Although the Family Medical Leave Act (FMLA) of 1993 lets employees take time off to care for a family member with a serious health condition, your situation isn’t protected. Generally, the employee can take up to 12 weeks without pay per year to care for a spouse, parent, or dependent child without losing their job or health benefits.
However, the FMLA doesn’t protect you unless your state or jurisdiction legally recognizes the “domestic partner” relationship—for example, as a common law marriage. Therefore, your employer has the right to fire you for not reporting for work. You can learn more about the Family Medical Leave Act from the Department of Labor at http://www.dol.gov/.
PATIENT RIGHTS
About a month ago, I started working in a psychiatric hospital. I notice that sometimes when a patient refuses to take his medications, his nurse will force them on him. I haven’t said anything, but this type of practice in a medical/surgical unit would make the nurse a likely candidate for assault and battery charges. Don’t the same rules apply in psychiatric settings?—R.B., N.Y.
Psychiatric patients have the same rights as all other patients. In some ways, they have even greater protection because of their vulnerability.
You can’t force care upon anyone without a court order. Even if a psychiatric patient can’t respond to therapy without his medications but refuses to take them, no one can authorize forcing him unless he’s declared incompetent. That requires specific legal steps to assign a guardian who’ll take over his right to consent.
Your hospital’s legal counsel should keep the staff posted on laws regulating patient care. Make sure you’re clear on your facility’s expectations.
PRESSURE ULCER CARE
As a nurse working in a women’s jail, I’m worried about one of the older inmates. She has such bad arthritis that she can’t move around easily, and now she’s developed Stage II pressure ulcers on her sacrum.
I think that frequent turning and a special mattress would do a lot to help, but our jail’s policy doesn’t allow us to go into inmates’ cells for frequent care of any kind. Plus, all the inmates have the same type of nonfoam mattress, without exception. I can’t see how this woman’s ulcers will improve without more frequent turning and dressing changes.
Am I liable if they progress? Or is the jail responsible because its policies prevent me from providing proper care?—R.D., IDAHO
Prisoners have the right to receive reasonable medical and nursing care. From what you say, this inmate needs the care of a skilled-nursing facility. Expecting you to provide the necessary care without appropriate supplies and access to the patient isn’t reasonable.
Your awareness of Stage II pressure ulcers obligates you to follow through. See that your manager, the medical director, or prison officials evaluate the situation and place the inmate safely in appropriate care. Ignoring her need and failing to act could be considered negligent. Document your assessment findings and the name of the practitioner you notified in the prisoner’s medical record. Include any orders, the plan of care, and the woman’s response to treatment.
Finally, if the prison’s policies and procedures don’t let you provide quality nursing care, take action to have them revised to reflect the standard of care you need to meet.
NURSING A NURSE
I’m an RN working in an obstetric/gynecologic clinic. Last week a woman—also a nurse—came in for a tubal ligation. She told me beforehand that she didn’t really want to have her tubes tied but was doing it because her husband refused to have a vasectomy and they already had five children. Because she seemed very anxious and the physician was planning to use only a local anesthetic, I gave her 1 mg of lorazepam. Then she told me that she’d driven to the clinic alone because her husband was staying with their children.
After the procedure, she stayed in recovery for over an hour. Although she appeared depressed, she insisted she was fine and wanted to drive herself home. Normally I wouldn’t let someone drive after a tubal ligation, especially after she’d been given lorazepam, but because she was a nurse I figured she was capable of judging her limits.
On the way home, her car hit a guardrail and she had to be treated at the local ED. Now she’s suing the physician and me for allowing her to drive. I think she’s partially responsible because she insisted on driving despite her emotional state and the fact that she received lorazepam. Do I have a valid point?—R.B., N.H.
No, for several reasons: When a patient is medicated and distraught, she’s at greater risk, whether she’s a nurse or not. You’re responsible for her safety and you reneged on that responsibility.
If you didn’t have a standing order to administer lorazepam and you don’t have prescriptive authority, you acted outside the scope of your license unless the physician signed off on the medication.
Even if this patient got written instructions not to drive for 24 hours after her procedure, the court might not hold her accountable, especially because she was probably in pain and under the influence of a drug that could impair her judgment. Also, the fact that you didn’t enforce the clinic’s policy could work against you.
You need help from an attorney who specializes in nursing negligence cases. Good luck.
PAIN MANAGEMENT
A 65-year-old woman in the nursing home where I work has terminal liver cancer and uses patient-controlled analgesia for pain relief. She’s told the staff many times that she wants more than anything to remain mentally alert to make the most of her final days. Unfortunately, she sleeps most of the time, even when her children and grandchildren are visiting.
One of my colleagues wondered out loud whether the kindest way to help this woman would be to sometimes give her a placebo instead of morphine so she’d be clear mentally to take advantage of precious time with her family. What are the legal implications of such a switch?—K.D., MONT.
Pain management is a very serious issue in health care today. Substituting a placebo for morphine without the patient’s knowledge would not only be unethical, but it’s also illegal, no matter how well meaning the intent. If your colleague is thinking of taking on the task, she’d be overstepping the boundaries of her license and placing herself and the nursing home in legal jeopardy.
Take your concerns about this woman’s pain management to her primary care provider. He may ask a pain specialist to titrate her analgesic so she’s comfortable and more alert when her family visits.
MANDATORY CALL
Although I’m not being paid to take call on my days off, my supervisor says that if she needs to, she can call me at home and I’d have to come to work. Is this legal?—B.T., CALIF.
Your employer is probably taking this tack because of staffing shortages, but you may not be obligated to take call. Unless you were hired with this commitment clearly understood, as in an employment agreement, your employer can’t force you to take call with or without compensation. Carefully review the written job description you received when you accepted your current position to see if you missed any fine print.
Tell your supervisor not to call you at home. If she continues to intimidate you, speak to someone in your facility’s human resources department regarding your rights to refuse call. If your employer remains unreasonable, look for work elsewhere.
PATIENT PRIVACY
Yesterday, my patient underwent a bone marrow biopsy. Today, his son asked me for the results. I explained that I couldn’t tell him and suggested he speak with his father or the hematologist. He said his father doesn’t understand the details of his leukemia and that the hematologist is too hard to reach. I offered to contact the hematologist and have him call the son later, but he just stormed out. Was I wrong not to give him the information he wanted?—J.L., OKLA.
No, you were right to protect your patient’s privacy. When a patient is competent and conscious, you shouldn’t share his personal information with anyone other than his health care providers unless he gives permission or has assigned a health care durable power of attorney. Know and follow your facility’s policies on releasing information.
Family concerns are understandable, and you should address them as best you can. The next time someone asks for this type of information, explain your duty to protect your patient’s privacy and offer to join him when he asks the patient about test or procedure results. That way, the patient may give permission on the spot to talk about his health status and you can answer questions from both of them.
When a relative is present and a patient openly discusses his status, he’s giving implied consent to share this information. To be on the safe side, though, ask the patient if you may speak freely in front of the other person. If you’re ever unsure how to answer a question, refer the patient or family member to the primary care provider rather than giving inaccurate information.
MEDICATION ORDERS
I’m an RN in an adult family home where the owner is a caregiver for the residents. My job is to perform daily assessments, follow up with physicians, and administer medications under the direction of hospice nurses and a visiting RN supervisor.
One resident who didn’t have signs or symptoms of pain or a cancer diagnosis was nevertheless receiving morphine sulfate (Roxanol). One day, when I was off duty and the owner gave her the drug, the resident complained that her tongue “felt big” and that she had a sore throat and difficulty swallowing. The owner said that her tongue appeared red and swollen at the time.
When I heard this, I called the hospice agency and left a message for the nurse. Saying that the resident might be having an adverse response to the medication, I asked to have the order discontinued. For 3 days, I tried contacting this nurse and the resident’s physician, but still received no order. I called the pharmacist to ask if she’d received an order and I learned that the physician on call was trying to get authorization for oxycodone.
Scheduled to be off for several days, I contacted my visiting RN supervisor. On her advice, I wrote Do not use under the morphine order in the medication administration record and told the owner to give the resident acetaminophen if she complained of pain before the new order came through. When the hospice nurse learned what I’d done, she accused me of practicing beyond the scope of my license. Could I lose my license over this incident?—B.B., W.VA.
Because you don’t have the authority to discontinue or prescribe medications, you were practicing beyond the scope of your license when you discontinued this woman’s morphine. Whether the state board of nursing would sanction you if this situation came under review is unclear, though. You acted in what you thought was the resident’s best interest. If you held the drug because you suspected a potentially life-threatening allergic reaction, the board might conclude that you acted as a reasonably prudent nurse would in this situation.
However, your letter raises several red flags. For example, you imply that the physician ordered morphine for someone who wasn’t in pain. Whenever you don’t understand why a patient is receiving a medication, you should investigate before a problem develops.
Also, when you learned about the patient’s drug reaction, you contacted the hospice nurse first instead of the physician. Perhaps you were following the chain of command, but a hospice nurse lacks prescriptive authority, so she wouldn’t have been able to resolve the issue immediately.
Next, you tried for 3 days to contact the physician and the hospice nurse. If the pain medication—or lack of it—during that time had harmed the resident, someone could accuse you of abandoning her without safely transferring her care into another nurse’s hands. Your supervisor might share liability for advising you to alter her medications without proper orders. She also had a duty to follow through on the resident’s care if she knew you’d be away for several days.
Finally, the order for oxycodone that went unnoticed highlights the need for continuity of care and follow-up. Pain management is a serious issue in health care. Find out and document why the hospice nurse and physician didn’t respond to your initial calls.
Although you’re employed to supervise all care at this home, the owner and other caregivers share responsibility. If your situation ever comes before the state board of nursing, make sure you can show that you notified the other responsible parties and followed up appropriately.
DETERMINING NEGLIGENCE
I’ve noticed that when a nurse is accused of negligence, the hospital is generally named as a defendant too. Considering the toll the nursing shortage is taking on nurses, I’m wondering whether a court could hold a hospital responsible for a nurse’s negligence while finding the nurse not guilty. What do you think?—M.N., S.D.
It’s possible. The hospital is generally named as a defendant when a nurse is accused of negligence because it’s legally responsible to hire competent practitioners and supervise them responsibly. The nurse acts on behalf of the hospital when he provides care, and patients expect a certain quality of care when they come to the hospital.
So, if working conditions at a hospital are unsafe and a patient is injured, a judge or jury could find that the hospital’s hiring or staffing practices were negligent but that the nurse wasn’t. Only when a nurse is negligent for reasons beyond the hospital’s control can the hospital escape liability.
PATIENT CONFIDENTIALITY
A recent RN graduate, I’m working in an oncology unit. Yesterday, I answered a phone call about a patient I’d just been assigned to, a woman with terminal liver cancer. Identifying himself as her husband, the caller asked how she was responding to treatment and when she’d be transferred to hospice care. I told him what I knew: that she wasn’t responding well and that she wished to receive hospice care at home as soon as we could arrange it.
Later that day, I told the patient that her husband had called. She looked aghast and told me she isn’t married. She said she’d broken up with a boyfriend several months ago and hadn’t wanted him to know anything about her situation. I’m terrified she’s going to sue me. What can I do?—B.L., VT.
Without a patient’s consent, you mustn’t share information with anyone who doesn’t need it. Even health care team members who aren’t directly involved in her care shouldn’t be privy to confidential information. Many patients don’t consent to giving their family members updates on their condition. Breaching a patient’s confidentiality could seriously affect her personal relationships, insurance coverage, or employment.
Your hospital should have policies for handling confidential patient information safely. As you’ve learned, telephone calls are especially difficult because you can’t be sure who’s calling. Discuss what happened with your nurse-manager and the risk management department and complete an incident report.
QUESTIONING THE PHYSICIAN
I’m an RN in a pediatrician’s office. In recent weeks, I’ve seen the physician trying to retract the foreskin of uncircumcised infants. The foreskin never retracts easily, blood sometimes appears, and the babies cry. I’ve also heard him tell parents to retract the foreskin when bathing their infants to clean underneath.
Because of the babies’ obvious discomfort, I did some research. I learned that you should leave an uncircumcised penis alone until the foreskin retracts on its own, months or years later. Retracting it repeatedly too early can cause permanent damage.
Yesterday I told the physician what my research had revealed, but he pooh-poohed my concerns. Now I’m worried about my patients and my own liability. I don’t want to contradict the physician in front of the parents, but if I don’t, I might share in the liability if a child is harmed. What’s the best course of action?—C.A., TENN.
The primary concern here is your duty of care to your patients. If you ever had to testify in a lawsuit that you knew this pediatrician’s actions were endangering patients and you didn’t stand up to him, you could share in the liability.
The source of your information is a key factor. An opinion on this topic in an obscure magazine doesn’t hold much weight; however, the results of a multicenter randomized research study that pediatric urologists used as the basis to change clinical practice guidelines do.
Don’t contradict the pediatrician in front of patients. Besides angering him, this could undermine his relationship with his patients and their parents—which could get you fired and threaten your license. If you’re sure that your information is based on good sources and that the pediatrician is behind the times and could harm a patient using his present methods, schedule time with him for a professional, straightforward dialogue. Explain that his practice seems inappropriate considering the literature and give him copies.
If he still brushes you off, consider blowing the whistle to the state medical board—and looking for a different position.
NURSE-ANESTHETISTS
Although I’m considering becoming a nurse anesthetist, the number of lawsuits involving these nurses has me worried. If a nurse-anesthetist makes a mistake during an operation, is he alone liable? Or does the “captain of the ship” rule apply, making the surgeon in charge liable for the nurse’s error? Or would they share responsibility?
I’m not planning on making mistakes. I just want to know before-hand what my liability risks and insurance needs might be in this specialized field.—R.K., WYO.
The “captain of the ship” doctrine applies to those who carry out a physician’s instructions, but a nurse-anesthetist is a licensed advanced practice nurse using his own professional judgment. Although some states require a nurse-anesthetist to work under a physician’s direction, the nurse-anesthetist is expected to have knowledge about anesthesia and so is held accountable for any anesthesia error that harms a patient. Only if a surgeon participates in the error would she be held responsible too.
The burden of responsibility for a nurse-anesthetist comes with the benefits of independent practice. To protect yourself, you should purchase the appropriate professional liability insurance and practice within the prescribed standard of care for nurse-anesthetists. Good luck with your career choice.
SEXUAL HARASSMENT
This OR scrub nurse has gotten herself into a muddle. I had a brief affair with one of the surgeons, then broke it off. Instead of accepting my decision, he’s started making offensive remarks, sometimes in front of others, and “accidentally” brushing against me in the OR. He’s also been calling me at home after I asked him not to.
Yesterday, I told him that if he didn’t stop bothering me, I’d report him for harassment. He said that what’s between us is none of the hospital’s business and that if I threatened his job, he’d make sure mine would be in jeopardy too, as we’d had a consensual affair. Do I have a legal leg to stand on here, or should I try to handle this mess privately?—N.Q., MISS.
You have the right to work in an environment that’s free of sexual harassment, and your previous relationship with the surgeon doesn’t negate that right. If you can handle this issue privately, you may avoid some embarrassment. But if the problem persists, your employer is legally bound to intervene.
Working in a hostile environment poses a threat to your patients. Follow your facility’s grievance procedure to report the problem. If the harassment doesn’t stop or if your job security is threatened, contact the Equal Employment Opportunity Commission.
SPECIMEN SECURITY
I’ve been hired as an office nurse in a family practice located in a large medical building. Every day I collect blood and urine specimens from patients. I then store them in a metal box outside the office for a lab courier to pick up.
What bothers me is that the box sits there for anyone to see and open—just like several other boxes up and down the hallway. When I told the other nurses that this practice bothered me, they said they’ve always stored specimens this way without a problem. Am I risking any liability by going along with this routine?—E.N., COLO.
Common practice doesn’t always equal good practice–and placing specimens outside an office in a public place clearly isn’t good practice.
The situation you describe is risky because blood and urine specimens are available for theft or alteration. It jeopardizes patient privacy because these samples can reveal confidential information about your patients. And if the specimens are mishandled, patients might receive inappropriate treatment. Risks to the public are considerable too: If the specimen box were damaged, contaminated body fluids could harm an innocent person.
You and the other professionals in your practice are risking liability by leaving specimens out in the open. Check with the Centers for Disease Control and Prevention for guidelines on handling specimens, and take the necessary steps to change the current policy. At the very least, specimens should be kept under lock and key to protect your patients and the public.
SCHOOL HEALTH FAIR
As the nurse at a large high school, I’ve been asked to participate in a health fair for the entire school district. My assignment is to do finger sticks for hematocrit and glucose levels on about 75 students. However, the district doesn’t have parental permission to do the finger sticks, and it doesn’t have a policy for reporting abnormal results. What should I do to protect myself against liability?—A.M., N.J.
When it comes to testing minors, your school district gets a red “F.” You must have a parent’s consent to do procedures such as a finger stick unless the student is 18 or an emancipated minor.
Your supervisors need to do their homework. Before placing you and the district in a potentially risky situation, they must clear this activity with the district’s legal counsel. Unless you have appropriate consent forms, don’t participate in the health fair. The school district also needs to establish a formal procedure for reporting and following up with abnormal results in order to avoid charges of invading the students’ privacy.
INFORMED CONSENT
One of my patients has a brain tumor. The surgeon who’s scheduled to remove it hasn’t told him the surgical risks involved, including the fact that he may become totally paralyzed and never be able to speak again. Isn’t the surgeon taking a big risk by withholding this information?—M.B., LA.
Informed consent generally requires that the person performing a procedure explain the significant risks and benefits to the patient in terms he can understand in order to make an informed decision. The procedure you describe poses significant risks that should normally be discussed with the patient.
But don’t be too hasty in judging the surgeon. If he has good reason to believe that sharing all the pertinent facts would seriously harm the patient, he isn’t required by law to disclose them. He might also be holding back because the patient has asked not to be informed.
If you’re concerned that the surgeon is neglecting his duty, ask him how he’s handled this situation. You might learn that he met with the patient weeks ago and spelled out all the potential risks and benefits of the procedure. Or the patient may have been declared incompetent and his family consented to surgery. You might also learn that someone other than the patient—such as a durable power of attorney for health care—gave legal consent for treatment.
Whenever a practitioner exercises his professional judgment in withholding information from a patient, he must fully document his reasons as well as what he told the patient and his family. And you need to walk the line if the patient has any questions. If you’re unsure how much to divulge, contact the surgeon before you provide specifics.
DETECTING ABUSE
Today, an 84-year-old man came to the ED with a fractured arm and bruised back. I remembered him coming in a few months ago with facial trauma; a few teeth had been knocked out. His explanation both times was that he’d had a bad fall. After extensive questioning, he admitted that his grandson has been abusing him. I notified the police, but now I’m worried. Could I be held accountable because I didn’t report the first instance of abuse?—G.K., IND.
Rather than worrying about missing abuse on the patient’s first visit, pat yourself on the back for pinpointing the problem the second time around. Sadly, many abuse victims get repeated health care treatments before the truth comes to light.
You probably didn’t breach the standard of nursing care. For older adults, falls are an all-to-common risk of everyday life. Your patient’s injuries the first time you saw him could have resulted from a fall, so you may have had little reason to suspect abuse. But on his second visit, you tuned into a pattern of “accidental” injuries and properly assessed him for abuse.
Any victim of domestic abuse may fear retaliation and abandonment and try to hide the true cause of his injuries. So whenever you suspect abuse, question the patient alone. Carefully document his injuries and follow your facility’s policy and state regulations for reporting abuse.
Some facilities have a policy to screen all patients for domestic abuse. This approach lets nurses reach out to all victims, even those whose injuries aren’t obvious.
LEGAL QUESTIONS
I’m a male nurse working at a psychiatric hospital. Most of our patients are young victims of sexual or physical abuse.
Recently, my supervisor told me I’d have to work nights until further notice because she wants at least one nurse of each sex on duty each shift. Taking the night shift will create hardships for me, given my family’s schedule, but my supervisor says I don’t have a choice if I want to keep my job. I feel that this is sexual discrimination. Do I have a case?—B.F., CALIF.
Probably not. If your point were valid, the female nurses who must work nights might claim sexual discrimination too. When an employer needs both sexes represented on all shifts for adequate patient care, demanding such coverage from its employees may well be reasonable.
You might have a case only if you accepted your position with a clear understanding that you wouldn’t work nights. If that were so, your employer has breached your contract.
Unless you’re under contract for a certain term of employment, you might want to look elsewhere for a position better suited to your home life.
PATIENT SAFETY
Last week, I was called to the patient waiting room to escort an elderly man to our unit. He had osteoarthritis and poor vision, but he told me he could walk without a cane or assistance from anyone. When we walked down the hall, I just stayed close behind him, near his right elbow.
Well, apparently someone had been working on one of the light fixtures and left a ladder leaning against the wall. As we turned the corner, the patient tripped over the ladder. Before I could catch him, he fell forward and broke his wrist.
I’m worried that I might be held responsible for his injury, even though he assured me he could walk alone. Who’s at fault here?—E.S., N.M.
Hospitals must provide a safe environment for patients, staff, and visitors, and yours has fallen short. If this patient sues, your employer would probably be found negligent because the unattended ladder contributed to his injury.
Your behavior could have been a factor too. Even though the patient assured you that he could walk without assistance and didn’t need a cane, you knew he had poor vision and osteoarthritis, which put him at greater risk for falling. As the nurse responsible for escorting him, you were his eyes as he rounded that corner and should have positioned yourself to prevent or soften a fall.
PREDICTING PATIENT VIOLENCE
I’m an agency nurse who sometimes works at a long-term-care facility. On several occasions recently, I gave injections to an elderly woman. The first two times went fine, but the third time, she suddenly became agitated and attacked me. The needle jabbed my arm and my face was bruised for a week. Fortunately, the needle was clean.
Since then, I’ve learned that the staff knew that this woman was prone to agitation and violence, but no one warned me or offered to help me with her. I’m thinking of suing the facility because the staff withheld this information. What do you think?—E.V., S.C.
A key issue here is this: Did the staff withhold information from you—or did you fail to communicate with them? Illness and aging can trigger abrupt changes in a person’s behavior, so you’d be wise to stay informed and on guard with all your patients. Given that this patient didn’t exhibit dangerous behavior on two previous visits, could anyone say with certainty that she’s more prone to violence than other patients?
If you missed work because of your injuries, you may be eligible for workers’ compensation. Initiating a lawsuit, however, could be expensive and prove fruitless. It also could have permanent consequences on your future work relationships. Think carefully about the implications before you start legal proceedings.
For more information on your rights and on your employer’s obligation to protect you from violence on the job, see “Protecting Yourself from Violence in the Workplace” in the June issue of Nursing2002.
SUSPECTED CHILD ABUSE
As an oncology nurse, I see many of my patients over the course of months and get to know them quite well. They seem to confide easily in me, and so far I’ve never been tempted to reveal any confidences. Recently, though, one patient told me things about his discipline techniques that make me strongly suspect he’s abusing his young son. I’d like to report what I’ve heard to ensure the child’s safety but don’t want to invite a lawsuit by breaching patient confidentiality. Am I permitted to report what he’s said, even though I’ve never seen his son?—H.N., MONT.
Most states have laws that require health care providers to report even suspected child abuse. For example, if a child is repeatedly brought to the ED with inexplicable injuries, you must file a report. But in this case, you need to be cautious because you’re going on only what your patient tells you. The details are certainly irrelevant to his oncology care, so he may be crying out for help by telling you about his disciplinary techniques.
Although some states protect nurse/patient privilege, they make an exception for suspected abuse of a child or a vulnerable adult. Check with your facility’s legal counsel to learn if you should report your suspicions and how to do it. If you do report your patient, you may not be able to work with him anymore; your manager will need to assign someone else to provide his nursing care.
COMMUNICATION
In your column, you’re always saying, “Nurses must advocate for patients” and “Be honest.” Well, I did just that—and now I might get fired. Here’s why.
I’m a nurse practitioner with a surgeons’ group practice. One of our patients was scheduled for a bilateral mastectomy. During her last clinic visit, she appeared anxious, so I asked what was wrong. She confided that she felt uncomfortable with a surgeon I’ll call Dr. Jones, who was scheduled to do her surgery. She asked me point-blank what I thought of him. I replied honestly that he’d been sued twice for making mistakes with two similar procedures. In one case, I heard he removed the wrong breast.
Well, of course she cancelled the surgery immediately. Dr. Jones found out why, and now he’s trying to get me fired. Is this ethical? All I did was give my patient an honest answer.—M.C., DEL.
Honesty and advocacy are vital nursing responsibilities. But you must balance these against other important considerations, such as trust in patient/caregiver relationships, loyalty to an employer, and the scope of clinical nursing practice in your state. You could also be misrepresenting the facts. Do you really know what was behind those lawsuits or are you just repeating gossip?
Whenever a patient asks you what you think about her health care provider, ask for more information by saying, “Tell me what’s on your mind” or “Tell me why you’re asking.” Avoid jumping to conclusions about what’s troubling her. For all you know, your patient was uncomfortable with Dr. Jones because she thought he looks too young to be a surgeon or he has an abrupt manner.
Once you have a better idea about what’s bothering her, you might say, “If you aren’t comfortable, why not consider getting a second opinion? It’s your right as a patient, and you can check with your insurance company to see what’s covered.”
I don’t know your practice’s hiring and firing policies or your role and responsibilities within it, so I can’t advise you about possible outcomes. But let me ask you another ethical question: If you genuinely doubt Dr. Jones’s competence, why do you continue working with him?
HOME HEALTH CARE
I’m a home health care nurse. My father, 76, has chronic obstructive pulmonary disease. Recently, he was rushed to the local ED for severe shortness of breath and what turned out to be a minor stroke.
Dad can be stubborn, and he was a handful in the hospital. First, he refused to be intubated and ventilated; then, he threatened to leave the hospital. During a week in the ICU, he yelled at the nurses, tried to smoke, and refused medications and treatments. Dad weighs 300 pounds (136 kg), and I know the nurses didn’t enjoy caring for him.
Dad has lived alone for the last 12 years, and he needs home health care services. I’m embarrassed to have my colleagues care for him, but I’m also afraid of what they’ll think if I choose a competing agency. What’s the best way to handle this?—K.T., TEX.
The important question to ask is: What’s best for this patient? You know which agency can and will provide the best care for him—most likely, the agency where you work. So why deny your dad this quality of care because you’re worried about what your colleagues might think? I can assure you that he won’t be the first “challenging” patient they’ve ever cared for! Expect them to treat this assignment with the same professionalism they’d bring to any other.
Remember, too, the choice of home health care agency is primarily your father’s to make. You can give him the facts and your advice, but respect his decision.
When a family member’s care is at stake, some health care professionals tend to micromanage things. Try to avoid that temptation. Once a team of caregivers assumes care of your father, step back and let them do their job. Just make sure to let them know how much you appreciate a job well done.
DEAFNESS SCREENING
At the small rural hospital where I work, we’re required to screen newborns for deafness. Recently, a couple learned that their baby was profoundly deaf and decided to give her up for adoption. Although they were financially well off, they planned to have only one child. Our impression was that they didn’t want an “imperfect” one.
The pediatrician involved was incensed by their attitude. Now he’s told us to tell all parents that their baby’s hearing is normal, true or not. He believes this will give parents time to bond with their babies. Later, when the hearing loss is “discovered,” they’ll be receptive to counseling.
His intentions may be good, but I don’t think this is right. What do you think?—N.M., MICH.
Like you, I think that this approach is wrong for many reasons. After you document test results in the babies’ charts, does the pediatrician expect you to withhold information or lie to the parents? Or is he asking you to falsify medical records too? None of these options is justifiable, ethically or legally. How would you like having to defend your actions in court years from now, when a family discovers they’d been deceived?
More important, what about the child? She could suffer major developmental delays if her deafness isn’t “rediscovered” for months or years. This is the reason deafness screening was required in the first place.
The bottom line is that lying is wrong, no matter how compassionate it may seem at the time. A better approach is to offer options, counseling, and resources to parents as soon as deafness is found. Very few couples will give up a child because she’s deaf; most are eager for information and help.
Talk with your nurse-manager and the director of nursing for help in setting things right.
ADVANCE DIRECTIVE
A 69-year-old patient I’ll call Mr. Liggett is dying of end-stage chronic obstructive pulmonary disease and multilobar pneumococcal pneumonia. He was intubated in the ED before anyone knew he had an advance directive, which clearly prohibited intubation and ventilatory support. Even with morphine for pain, he moans and grimaces when we suction and perform other care, so I know that he’s uncomfortable.
Given the advance directive, his physician wanted to discontinue the ventilator. But Mr. Liggett’s son, who has power of attorney for health care (PAHC), refuses to allow this until his sister can get here from a remote area in Canada.
I’ve tried to explain to him that having a PAHC means that he must do what the patient wishes, but he says he knows his dad would want to say good-bye, even if it means a few extra days on the machine.
The physician has decided to wait for the daughter to arrive. Do I have a duty to get Mr. Liggett off the ventilator as soon as possible, or would I be out of line to speak up?—J.S., ARIZ.
You’re never out of line when you’re advocating for your patient. If he’s alert enough to recognize his family, he can probably make end-of-life decisions for himself. Has he been told about his treatment options and patient rights? Does he know that he has the right to stop ventilatory support if he doesn’t want it?
But if he’s unconscious or only semiconscious, what’s the point in continuing mechanical ventilation until his daughter arrives? Will he know that she’s present? If ventilatory support is continuing only for her sake, would she want her father to continue suffering? Has anyone explained the situation to her?
Continue to advocate for your patient by taking these steps:
• Review this situation and your concerns with your nurse-manager.
• Consult with the hospital ethics committee to address ethical issues of medical futility and withdrawing or withholding extraordinary or heroic treatment (including resuscitation, mechanical ventilation, antibiotics, and artificial nutrition and hydration).
• Develop a plan of palliative care with Mr. Liggett’s physician and all other caregivers, including respiratory therapists. Request a hospice consultation for help with pain and symptom control.
• Involve a chaplain or grief counselor to assist Mr. Liggett’s family.
Hospitals are obligated as part of Medicare Conditions of Participation and Joint Commission on Accreditation of Healthcare Organizations Patient Rights Standard RI.1.2.5 to honor patients’ advance directives. You’re on solid ground, both legally and ethically.
CELL PHONES
Recently, our hospice gave cellular phones to all of the field nurses. When a patient or family member needs help, he can call the hospice, which then contacts the on-call caregiver via cellular phone.
About a week ago, the wife of one of my patients somehow got my cellular phone number. She called me about a genuine emergency, and I went right over to help. But since then, she calls me daily with various concerns. I’ve told her several times to call the hospice office, but she keeps calling me directly. I know she’s afraid about her husband’s condition, but she’s invading my privacy. What should I do?—T.E., TEX.
This is a boundary issue, and your patient’s wife has clearly crossed the line into your private life. The easy answer would be to change your cellular phone number. However, I suspect that patients and family members with Caller ID can easily get anyone’s direct number.
Your patient’s wife is telling you what she needs: the reassurance of being able to immediately contact her husband’s caregiver. If you asked her why she calls you directly, I’d bet she’d say it’s too stressful having to call a central number, talk with someone she’s never met, and then wait even a few minutes for someone to call back. Patients and families in crisis—and a dying family member is a crisis, even if the immediate concern isn’t an emergency—have a different perception of time than we do.
Talk with your hospice supervisor and colleagues about revamping the system to protect caregivers’ privacy. For example, you may need a pager system that requires patients to call a dispatcher, who then contacts the on-call nurse.
DNR ALTERNATIVE
I’m caring for a 72-year-old woman who weighs 95 pounds (43 kg) and is in renal failure. She’s decided to stop dialysis, and she says she “just wants to go to sleep,” but she won’t let her physician write a do-not-resuscitate (DNR) order. She says she knows she’ll die soon and she wants every last second with her family.
I don’t want to have to code this patient, and her family agrees that CPR would be disastrous. Her son has her power of attorney for health care. Can I get permission from him for a DNR order?—L.L., TENN.
I’m assuming your patient is competent and capable of making her own decisions. As you know, her advance directive doesn’t take effect until she can no longer make her own treatment choices. Having her son make the decision about CPR without telling her would be deceptive.
Your patient should have as much control as possible over her care. Many health care providers have started offering another, more comprehensive order for patients who are terminally ill and wish to die peacefully: an “allow natural death” (AND) order. Compared with a DNR order, the AND order has a proactive, not reactive, focus. It tells caregivers what to do, instead of what not to do.
With this approach, caregivers talk with the dying patient about what a good or natural death means to her. Based on this, the AND order sets out a plan of palliative care that can be as creative as the patient and caregivers wish.
For some patients, a natural death means “no more tubes in me.” For others, it means having peaceful music playing at all times. For most, it means discontinuing certain unnecessary nursing procedures, such as weighing the patient and tracking her fluid intake and output. Comfort is the goal, so effective pain management is central to any AND order.
With her primary care provider’s agreement, offer your patient this alternative to the DNR order. If she and her provider agree to this approach, involve her family in designing a care plan that will help her reach her goal of spending quality time with her family in her last days.
CONFIDENTIALITY
As I entered the room to assess my short-stay surgery patient, he was chatting amiably with his wife and parents. I introduced myself and began the assessment by asking, “Today we’re doing a hernia repair and vasectomy, is that corr—?” Before I could finish my question, the patient’s wife and parents jumped up from their chairs, looking shocked. Then they pressed to the patient’s bedside and began shouting at him and each other. Later, I found out that the patient hadn’t told anyone except his physician about his decision to have a vasectomy. Now I’m wondering what I could have done differently.—N.D., ILL.
The best way to avoid this uncomfortable scenario is to remember that the patient decides whether and with whom to share information about his diagnosis and treatment. Before asking any questions that involve confidential information, give this little speech to visitors who may be present: “Hi. Will you excuse us for a few minutes? You’re welcome to go to the waiting room down the hall. This will take about 10 minutes. I’ll get you when we’re finished. Thanks.” If the patient assures you that it’s okay for the visitors to stay, explain that you’ll be discussing confidential information and you want to protect his privacy. He can then decide whether to allow his visitors to stay. (A printed statement at the top of the patient assessment form can remind staff to ensure a confidential setting before completing an assessment.)
After apologizing to the patient in this case, you should have completed an incident report. If you didn’t, tell your supervisor that you need to complete a late incident report. She may ask you to discuss the situation with your hospital’s risk manager.
HIV-POSITIVE INFANT
As a nurse in an urban free clinic, I’m concerned about one of my patients. Only 17, “Sharon” has a baby who’s nearly a year old; the father is unknown. Sharon works as an exotic dancer and acknowledges a history of drug use. She and her baby are HIV-positive but doing well on medications.
At night when she goes to work, Sharon leaves her baby with a retired teacher who lives next door. Unfortunately, she refuses to tell her about the baby’s HIV status because she’s afraid she’ll stop baby-sitting. How can I protect everyone involved without violating Sharon’s confidentiality?—R.R., MICH.
Situations like this are never easy. Talk with Sharon about your concerns, focusing on her baby’s special needs. Then ask if you can speak with her neighbor to discuss baby care. Explain that the neighbor needs to know about the baby’s medical condition in order to care for him properly, as well as to protect herself. At this time, you can instruct both mom and neighbor about diet and other essentials of infant care and stress the importance of using universal precautions when dealing with body fluids.
Acknowledge that the neighbor may not want to continue baby-sitting under these circumstances, but reassure Sharon that your clinic’s social services coordinator can help her find alternative child care that she can afford.
PRECHARTING
A new nurse in our unit gives shift reports that rankle me. She says she’s completed all of her patient-care duties, but then I sometimes see her doing last-minute tasks. I checked some of her charts and discovered that she precharted some things that she hadn’t actually done. She’d charted one patient’s urine output as the same amount previously charted. But when I checked the patient’s room minutes later, the catheter bag was full and obviously had not been emptied when she’d charted.
Unfortunately, this nurse caught me checking up on her and she reported me to the nurse-manager for harassment. What a mess! How should I handle this?—L.V., COLO.
Gently, firmly, and quickly! Talk with your nurse-manager right away, in private. Because your concerns involve patient safety, fill out retrospective (late) incident reports on the situations you’ve observed. Your manager can advise you about making these reports. Falsifying documentation is an extremely serious matter, and your manager will want to investigate.
Although your objective is to protect patients, your actions may be misinterpreted by the nurse involved and by those who know only her side of the story. Make sure your manager understands that your first concern is for patients’ safety.
Being new, this nurse may need help figuring out how to handle her patient-care assignments in an appropriate and timely manner. You may not be the one to offer this assistance, but your manager should find ways to help her cope more effectively.
CONFIDENTIALITY
At the rehabilitation hospital where I work, many of our patients stay for several months, and we get to know them quite well. But how well should they know us? Several patients try to pump me for details about other nurses’ personal lives, families, and so on. Rather than give out that information, I say something like, “Ask Margie herself when she takes care of you tonight.”
But apparently not all staff members are so scrupulous. I was surprised and hurt last week when one of my patients told me how sorry she was that my fiancé broke our engagement.
I think this takes the idea of a patient’s “right to know” a bit too far. Do you?—L.B., ALA.
Yes, indeed. Patients’ right to know is limited to information about their care and treatment. They have the right to know the names and qualifications of their caregivers, the medications they’re taking, treatment plans, and the risks and benefits of treatment. But personal information about their caregivers is off-limits.
Protecting staff confidentiality isn’t just an ethical issue; safety is another concern. That’s why many staffers choose to have only their first names on their ID badges. The staff at your facility needs a refresher course on their professional obligations to protect everyone’s confidentiality. Notify your nurse-manager and ask for help in stopping the gossip.
FALSIFYING RECORDS
Last month, I was hired as vice-president (VP) of patient services at a 40-bed community hospital. (Apparently, the previous VP walked off the job abruptly.) Recently, the hospital’s chief executive officer (CEO) asked me to backdate and sign some quality assurance forms to show that equipment safety checks had been done on time. He explained that the checks had been done, but the forms weren’t completed because the former VP left so suddenly. I was uncomfortable doing this but agreed, believing it to be a “one-time-only” request.
Today, I have seven more folders on my desk with instructions to sign off on reviews of outdated medications, new-hire reference checks, and other things that weren’t done on time—or at all. I don’t want to sign these, but now I feel compromised. How should I handle this?—M.B., PA.
Tell the CEO right away that lying, fudging, and waffling aren’t part of your job description. Be firm and clear about your ethical and legal obligations.
And don’t back down from a threat. If he “reminds” you that you’ve already participated in one little cover-up, acknowledge that you made a mistake. And tell him that’s exactly what it was: a mistake that you absolutely won’t repeat.
Talk with your nurse-managers about the problems they’re facing and investigate the damage caused by administrative shortcuts or neglect. Also alert your hospital’s risk manager. If administrative improprieties continue, report your concerns to the proper state agencies and other authorities, such as the Joint Commission on Accreditation of Healthcare Organizations.
DISCIPLINARY ACTION
Yesterday, in the middle of our nursing unit staff meeting, my nurse-manager asked me to run to her office for some papers she’d forgotten. I found them on her desk—right next to a plan for corrective action. I wasn’t snooping, but I couldn’t help notice that the corrective action was for my best friend, Sarah. She’s being accused of abusing patients! I’m sure she’d never do such a thing.
Should I tell Sarah about this so she can be prepared to fight or maybe even quit before it becomes part of her record? Or should I say nothing and hope she won’t be mad at me if she finds out I knew?—C.P. CALIF.
Okay, you didn’t mean to snoop. But that’s what you did. Reading a corrective action plan that was personal and private is a violation of both your nurse-manager’s confidentiality and your friend’s. Of course, your manager should never have left such a sensitive document out where anyone could see it, but that’s another issue.
You can’t “undiscover”what you found out, but don’t do something now to make the situation worse. Keep this information to yourself. Sharing it with your friend still violates confidentiality, no matter how good your intentions may be.
The corrective action and its cause are strictly between your friend and her manager. You don’t know the whole story, and you have neither the need nor the right to know. So resist the temptation to pump your friend for details.
When Sarah finds out about the corrective action, she may choose to confide in you. If so, you can support her by being a good listener. But beyond that, the only right thing to do is to keep quiet. The decision of whether or not to discuss the allegations with you should be hers alone.
SCARY SHORTCUTS
As a recent graduate, I’m thrilled to be working at my dream job in the ICU. I know I still have lots to learn about handling the fast pace, and I feel like the new kid on the block. But I’m bothered when the nurses I work with cut corners. For example, daily weights or intake and output values are often guesstimates. One nurse told me, “You don’t have time to write down every little thing. Just ballpark it.” Another nurse was supposed to collect a patient’s urine every 2 hours for testing throughout the shift. When she missed one time, she drew twice as much urine from the collection bag the next time and put the urine into two separate containers labeled with different times. I’ve also seen nurses fudge the times they gave medications by as much as an hour.
I know the people I work with are busy and generally conscientious—overall, patient care is very good—so I don’t like making waves. Maybe I’m just naive. What do you think?— S.M., CONN.
Don’t worry about being naive because this is your first job—and don’t ever apologize for being concerned about patient care. Indifference quickly leads to burnout. And one of the first signs of indifference is rationalizing indiscretions like the ones you describe.
The ethical issue here is truth telling versus deception. It’s amazing how some people who apply the highest ethical standards for the “big things” can cut corners on the “little things.” Of course, making up or altering patient information isn’t a little thing at all—and it’s illegal and dangerous.
What to do? Talk with your nurse-manager about your observations and concerns. You don’t need to mention names, but be prepared to give examples of deceptive practices you’ve witnessed.
If your hospital has a nursing quality assurance program or a total quality improvement initiative, get involved in finding ways to promote the high professional standards that each patient deserves. Take a look at why nurses are so hurried that they resort to shortcuts. What can be done to ease the pressure? Staffing the unit appropriately and streamlining paperwork are good places to start.
You won’t always be the new kid on the block. If your hospital offers nurses a mentor program as part of new-employee orientation, get involved as a mentor. Or help start a mentor program if one isn’t offered. Let your high professional standards set an example for the next newcomer.
PATIENT ABUSE
A few weeks ago, I sent the vice-president of nursing a letter reporting two nurses who are abusive to elderly patients. I didn’t sign my name because I didn’t want to get into trouble or get a reputation for ratting on colleagues. Nothing has been done about their behavior, so now I’m wondering if I should complain to the hospital’s chief executive officer. Even if concerns are raised anonymously, shouldn’t they be taken seriously?—H.W., MISS.
I’m never comfortable when anonymous letters are used to complain, and I don’t think too many managers or administrators are either. Without knowing where the complaint came from, how can anyone fairly assess the information?
Your fears about reporting may be unrealistic. I’d suggest reporting your concerns openly through existing hospital systems so you leave a “paper trail.” This approach is more likely to get results because it causes people to become accountable for the problem.
You don’t say what kind of abuse you’re witnessing, but your first priority is always patient safety. Once that’s ensured, inform your manager and fill out an incident report.
Abusiveness is a serious offense, and you can’t remain anonymous. Ethically, you’re obligated to be an advocate for your patients. Follow up the incident report by meeting with your hospital’s risk manager or other appropriate official. The Joint Commission on Accreditation of Healthcare Organizations or the state-run division that licenses hospitals needs to know what’s happening.
Remember that you also can (and should) explain to any patient who’s been abused that she has the right to file a patient grievance according to the Centers for Medicare and Medicaid (formerly the Health Care Financing Administration), the government agency that oversees hospitals’ Medicare compliance. If your hospital wants to remain Medicare certified, it must have a system for reviewing and resolving patient grievances, including abuse by staff.
“BUFFING” THE CHART
I work in a community hospital. After patients are discharged, someone from the medical records department reviews the charts and medication administration records looking for omissions. If a prescriber’s order or the nurses’ notes are lacking something, she returns the chart to the prescriber or primary nurse to fill in the missing information.
The problem is that patients have sometimes been gone for months before the charts come back to us. At that point, I may not remember a patient’s response to a medication or what time a second unit of blood was hung. If I can’t remember, I refuse to fill in the blanks. Am I on solid legal ground when I refuse?—M.Q., IDAHO
“Buffing” the chart (filling in the blanks after the fact) is a risky practice. Unless you’re sure you remember the facts of the care you’re asked to supply, you should refuse to update charts of discharged patients. If you were to guess and supply inaccurate information, you could be helping to prepare a fraudulent record.
Timely and accurate documentation serves several functions in patient care. For one, it allows members of the health care team to communicate with one another about the patient’s responses to treatments and medications and whether to change his care plan. Your notes also help prevent duplicating treatments and would refresh your memory if you were asked to recall what care you provided. Buffing goes against all these positive reasons for documenting care.
The hospital administrators may be trying to avoid legal pitfalls in case someone files a lawsuit and the records come under scrutiny. They might also want to look good to accreditation agencies and insurance companies who use patient records to gather data about quality of care and billing.
If you’re asked to document treatment in the distant past, tell your employer you can’t honestly recall the details and refuse to comply. But, if you do remember and chart at a later date, label your notes “late entry” and include the date you write them to avoid the appearance of fraud.
If your hospital’s documentation policies don’t mention refusal as a charting option, ask to serve on a committee to design reasonable expectations for documentation.
PERFORMING PHYSICAL EXAMS
I’m an RN working for the public health department in a clinic that serves women and children. The clinic has a new policy: The nurses are to examine children age 5 and under and refer them to a primary care provider only if they need more care or medication.
My colleagues and I are afraid that this forces us to work outside our scope of practice. However, the director of nursing told us not to worry because nurses who work at public health facilities are covered by tort immunity. Is she right, or do we have a legitimate concern?—R.W., LA.
You’re right to be concerned. Sovereign immunity provided to government workers won’t protect your license if you perform physical examinations and make clinical decisions outside the scope of your practice. You could be charged with practicing medicine without a license.
Nurses in outpatient settings often follow protocols and do well-baby checks such as height and weight measurements. However, if a parent brings a child for treatment of a health problem or the nurse notes abnormalities during the routine assessment, a nurse practitioner, physician assistant, or physician must see the child to determine a diagnosis and prescribe treatment.
Perhaps your state board of nursing would consider implementing a safe, legal way for RNs to perform more extensive examinations. For example, you might take a continuing-education course to prepare. If the board approves such a step, get the information in writing and adhere to all the requirements before you do what your employer asks.
PATIENT CONTRACT
I’ve recently started working in the acute psychiatric unit of a general hospital. One technique that the nurses use for suicidal patients is a no-self-harm contract. The primary nurse negotiates with the patient, then prepares a contract spelling out the nurses’ and the patient’s responsibilities in therapy. The primary goal, of course, is for him to promise not to harm himself.
I’m wondering, though, if such a contract can be considered binding, especially if the patient isn’t competent when he signs it.—J.E., N.M.
The no-self-harm contract you describe isn’t legally binding, whether the patient is competent or not. It’s a therapeutic (not a legal) tool designed to heighten his commitment not to hurt himself. Having this type of contract doesn’t change your responsibility to assess your patient’s suicide risk or absolve you from all liability if he does commit suicide.
You’re correct in assuming that a legally incompetent person lacks the ability to enter a contract, but the fact that someone’s receiving psychiatric care doesn’t mean he’s incompetent. If any patient needs to make an informed decision and you have concerns about his competency, contact his primary care provider.
DOCUMENTATION ERRORS
The hospital where I work has a policy of writing “mistaken entry” when anyone makes a documentation error. At other places I’ve worked, I’ve simply put a line through the incorrect information and written “error” above it. Is one option more appropriate—and legally correct—than the other?—E.S., CALIF.
Each facility has its own policies and procedures for maintaining patient-care records, so make sure you know and adhere to your facility’s policies. How you correct a mistaken entry is very important, not only for maintaining the integrity of the patient record, but also to demonstrate your credibility.
Drawing a thin line through incorrect information is preferred because it allows the reader to see the erroneous note and helps avoid the appearance of a cover-up. Writing “mistaken entry” above the item is appropriate so long as you don’t destroy or obliterate the original information. In fact, it’s probably a better term than “error,” which could imply that the nursing care, not the documentation, was subject to error.
PEER REVIEWS
Our hospital’s human resources department has decided to include peer reviews as part of each employee’s annual performance evaluation. These are described as informal evaluations by colleagues who know you well.
One of my best friends, Claire, has always been at odds with another nurse-manager, Judy. Now Claire is being asked to rate Judy on her management skills. In confidence, Claire told me she’s ecstatic that she’ll finally be able to “tell the truth” about Judy. Claire has always resented Judy, who’s basically a good manager, so I don’t think all this “truth telling” will be fair. Should I just mind my own business?—E.P., FLA.
Performance evaluations shouldn’t be popularity contests. Many hospitals have tried and abandoned this approach when they found it to be neither a fair nor useful way to evaluate performance. The situation you describe is a perfect example.
Although under usual circumstances Judy’s evaluation would be none of your business, Claire has opened the door by confiding her possibly unethical agenda with you. Talk with her again and help her understand that what she’s proposing is both unprofessional and unfair.
Then, without naming names, discuss the dangers of this policy with your director of nursing and with the person in human resources who has the power to change the review process. If they’re determined to go forward with peer reviews, suggest two modifications:
• Instead of assigning peers at random, allow the nurse being evaluated to offer a list of reviewers she believes are most familiar with her work.
• Rather than having peer reviewers write an informal letter, give them a standard checklist that covers job responsibilities and addresses satisfactory performance or opportunities for improvement. Reviewers should be encouraged to take an honest and positive approach to identifying shortcomings—not to air personal conflicts or engage in a hatchet job.
MANDATORY OVERTIME
We rely so heavily on mandatory overtime at this hospital that I fear for my patients’ safety. How can we show nursing administration that asking nurses to participate in a policy that endangers patients is wrong?—B.J., PA.
No question, some hospitals put profits before patients by relying on practices such as mandatory overtime to keep fewer staff on the payroll. For a good discussion of the ethical dimension of this serious issue, read “Mandatory Overtime: Conflicts of Conscience,” by Jennell Charles, RN, PhD (JONA’S Healthcare Law, Ethics and Regulation, March 2002). I also recommend Cheryl L. Mee’s editorial, “Mandatory Madness,” in the September issue of Nursing2001.
Are hospital administrators taking steps to address problems with staffing that lead to unsafe conditions? For example, do they have a quality improvement program in place to track when and where risks are increasing and how these trends relate to staffing? Is nursing management trying to improve communication with and support for staff nurses?
If management isn’t meeting these responsibilities, what can you do? One option you may not have considered is conscientious objection.
Find out if your hospital has a human resources department policy on conscientious objection or conflict of conscience. The purpose of a policy on conscientious objection is to protect the rights of employees when they refuse to participate in any procedure that conflicts with their ethical or religious beliefs.
Originally, these types of policies were developed to address the hospital’s responsibility to respect the moral convictions of nurses and other staff who refused to assist with certain patient-care procedures, such as abortion, blood transfusion, or withdrawing or withholding life support. Today, these policies can take on a new role as nurses address the conflict of conscience that mandatory overtime presents.
The Code of Ethics for Nurses with interpretive statements discusses nurses’ duty to patients, including why nurses may refuse to care for patients. Your hospital ethics committee may be able to help nurses negotiate a contract to limit the number of mandatory overtimes any nurse must work in a designated period.
PATIENT PRIVACY
When I care for patients who are scheduled for lithotripsy, I do the usual patient teaching, including a description of the room and tank. I used to tell patients that they’ll be naked while in the tank. But my supervisor has told me to drop that information from patient teaching because it makes some patients too anxious. She made the analogy with surgery in the OR: She pointed out that we don’t routinely tell patients how their bodies will be exposed during surgery.
I’m uncomfortable. Isn’t omitting this information deceptive?—S.H., ORE.
Both you and your supervisor have valid points. However, I believe the best approach in any situation is to avoid even a hint of deception. Be open and honest with patients. They have the right to know what this procedure involves and to understand how their privacy will be affected. You can avoid creating undue anxiety by focusing on specific actions and approaches that will be used to protect privacy and dignity.
Many hospitals have now switched from using a lithotripsy tank to a gel pad that’s placed under and around the patient for the procedure. Only a small portion of the patient’s body needs to be exposed. This change could make your patients more comfortable during the procedure.
Talk with your supervisor about ways to improve patient teaching that will meet both goals: being honest with patients without creating unnecessary anxiety.
SEXUAL INTIMACY
I’m a geriatric clinical nurse specialist consulting with nursing homes. Many older adults in my practice have a strong desire for intimate relationships. I’m confident of my ability to educate staff and residents about physical and psychological aspects of sexuality. But I’m not so self-assured when staff members ask for my advice about handling certain delicate situations. For example:
• Should a resident be able to have a sexual relationship with someone other than his spouse?
• Should sexual relations be permitted if one partner has Alzheimer’s disease?
• Should residents be allowed to obtain sexually explicit materials?
I appreciate your thoughts.—B.P., KAN.
Many long-term-care facilities now have policies that recognize how important supportive sexual relationships can be for residents. These policies about sexual expression recognize the fact that nursing home residents are adults, not minors, and the facility is their home.
Some facilities have a “resident’s bill of rights” to help address the ethical issues associated with sexuality. They affirm residents’ rights to engage in consensual sexual relationships and spell out residents’ responsibilities to themselves, their partners, and the resident community. For example, facilities can require that sexual behavior be safe, private, and consensual and that it not infringe on other residents’ rights.
Consensual and respectful are key words. For example, vulnerable residents who can’t make judgments for themselves must be protected. And a resident’s spouse’s rights and wishes must be respected as well, whether or not the spouse is living in the facility.
Others living in the facility must be respected too. Most resident’s bills of rights state that certain public displays of sexuality, such as holding hands, are acceptable but that residents can’t engage in public self-stimulation. (Staff members are taught to take the resident to a private area.) If residents have roommates, the nursing home must make private areas or private time available to residents who engage in sexual activity.
Residents may purchase and use legally available, sexually explicit material such as books or videos, but they can’t infringe upon the rights of others (residents using the Internet on facility computers, for example). Facilities universally prohibit sexual relationships between residents and minors and between residents and staff.
Each facility must determine policy based on its own mission, values, and religious or cultural traditions, as well as the values of its residents. Each resident’s faith, culture, and life experience must be appreciated and treated with respect. Staff members should gently and privately address every resident’s beliefs about sexuality just as routinely as they assess dietary needs and skin integrity.
PSYCHIATRIC DIAGNOSIS
In the outpatient oncology clinic, we just admitted a 15-year-old patient I’ll call Jean, who needs both chemotherapy and radiation therapy. Her mother explained that Jean also has bipolar disorder that’s well controlled with medication. She asked us to tell her daughter only that chemotherapy is “medicine that will help you get better” and radiation treatments “will help strengthen your spine.” All of us who care for Jean are uncomfortable with the situation. Any advice?—P.G., ONTARIO
You didn’t say why you felt uncomfortable, but I’m guessing it’s because sharing half a truth feels like lying. It strikes me that the responses your patient’s mother proposes are answers that you might typically give a much younger child or one who’s mentally challenged. Regardless of her psychiatric diagnosis, a young woman of 15 probably won’t be satisfied with such simplistic answers. One patient I worked with put it compellingly: “Just because I have schizophrenia doesn’t mean I’m stupid!”
Do you know what Jean’s mother has told her about why she’s coming to an oncology clinic, what has made her spine weak, or why she needs medicine to help her get better? If anyone in the clinic (even another patient in the waiting room) brings up the concept of cancer, how will your patient react?
I’m concerned that if Jean discovers the deception behind the half-truths she may have been told, she may be angry with both her mom and her caregivers. Once trust is broken, it’s hard to restore.
Talk with Jean’s mother and discuss why you feel that honesty is truly the best policy. If she’s worried about the impact of a frank discussion on her daughter’s mental health, encourage her to share her concerns with the patient’s psychiatrist or other mental health provider.
PREMATURE INFANT
I’m caring for a baby boy born at 24 weeks gestational age with a birth weight of 492 grams. His parents can’t agree on what’s best for their child. The baby’s neonatologist and nurses have talked with the parents about the fact that an infant born this early is unlikely to survive. The baby’s mother insisted on his resuscitation in the delivery room and life support in the neonatal intensive care unit (NICU), where she spends long hours. The baby’s father, who seems somewhat passive, rarely visits but has said he doesn’t want to see his son continue to suffer.
I also should mention that the baby’s maternal grandparents have given a lot of money to our hospital and say they’ll buy whatever technology is needed to keep their grandson alive. What should we do?—H.G., IND.
No hospital has the right to force a physician or any other caregiver to treat a patient in a way that violates standards of best practice, conscience, or human dignity. The ethics committee is the appropriate forum for reviewing these issues. Complicating things in this case is the hospital’s apparent conflict of interest—all the more reason for the ethics committee to become involved.
Inform the baby’s family about what a hospital ethics committee does and about the scope and limits of its authority. You can also give them more information about futile medical treatment, help them understand the implications of the baby’s medical condition, and answer their questions.
ETHICAL PROBLEMS
CONTROL ISSUES
A 28-year-old patient in our medical/surgical unit was involved in a motorcycle accident. He has multiple abrasions, lacerations, fractured ribs, and a fractured femur that required open reduction with internal fixation.
The patient has a significant history of alcohol use and also says he smokes a pack and a half of cigarettes per day. When the patient’s physician asked him to give consent for additional wound debridement and dressing changes to be done in the OR, the patient refused. He told me afterward that he refused because the physician wrote an order saying that he wasn’t allowed to smoke while he was in the hospital and wouldn’t let his friends bring him a beer. I explained that his physician wrote the order because he was worried that his broken bones wouldn’t heal properly, but my patient thinks he’s being “punished” like a child. I reported this to the patient’s physician, who said, “There’s nothing I can do if he won’t consent to treatment.”
Any advice?—R.R., CALIF.
It sounds as if you have a standoff related to control issues. First, clarify your hospital’s policy about patients’ right to smoke in their rooms or in a designated smoking area. Next, review your hospital’s policy on alcoholic beverages—some hospitals permit patients to order beer or wine with a meal. Then, discuss the following questions with the patient’s physician:
• Is the patient alert and oriented?
• Is he free from any signs of alcohol withdrawal?
• Has he been fully informed about the risks of using alcohol and nicotine, including their effects on his present condition?
Because the patient is an adult, if the answer to each of these questions is “yes,” then he should be considered competent to make his own decisions. This is reinforced by the fact that the physician has already implicitly affirmed the patient’s competence to make his own choices about the surgical debridement. The issues of chemical dependency can be addressed later when the patient isn’t under as much stress.
For now, clearly explain the hospital’s policies about smoking and drinking to the patient. The physician’s order should be consistent with these policies. If it’s not, inform your nurse-manager, who can involve the patient-care representative (if your hospital has one) and the risk manager.
Suppose the standoff continues and your patient wants to pursue the matter. In that case, he should be informed about the hospital’s patient-grievance procedure.
SEXUAL ORIENTATION
I practice in Nebraska, where the state legislature is considering a law banning discrimination on the basis of sexual orientation. At work I’ve remained low-key about my own sexual orientation, and my partner of 13 years practices at another hospital. Unfortunately, my nurse-manager saw us together on television, marching hand-in-hand in support of the bill. She called me into her office the next day and gave me a stern lecture on why my lifestyle was morally wrong and unacceptable to God. She made it clear that she’s extremely uncomfortable with my lifestyle and will have trouble working with me from now on. Then she said I have only two options: stay and expect no promotions, or quit!
I’m a good nurse and I love my work. I’m not sure about my rights. What do you think?—R.D., NEB.
Your manager is allowing her personal beliefs to infringe on her managerial responsibilities. How can she afford to force a knowledgeable, skilled employee to quit smack in the middle of an intense national nursing shortage? I work in Nebraska and I know how desperately hospitals in our state need good nurses. Please come to our hospital to work!
I realize that this has become an extremely painful personal situation for you, although you never intended it to happen. It sounds as though your manager’s actions reflect strong religious views, which she has a right to hold personally. However, she doesn’t have the right to punish you professionally because of her personal religious convictions.
Until all states have legislation banning discrimination on the basis of sexual preference, your legal rights may not be the same as your moral rights. But this is exactly why you chose to march in support of this bill.
Your manager was wrong in saying that you have only two options. Actually, you have many. Here are several you may wish to consider:
• Realize that not everyone at your hospital sees things the same way your current manager does. Request an immediate transfer to a unit and a manager you feel more comfortable working with. That way, your hospital won’t lose a valued employee and you won’t lose your job. I predict other managers will be lining up to recruit you!
• Report your manager’s threats (and that’s exactly what they are) to your human resources office and request a hearing.
• Contact local news media.
• Contact your legislative representative and get even more involved by requesting to speak to the legislature regarding your current situation.
• Retain an attorney to explore your legal rights and represent you in these actions.
Let your responses be determined by your own moral convictions, your respect for your partner’s feelings, and your own personality—especially your willingness to take risks for what you believe is right versus your desire to remain low-key. Only you can decide which approach feels right.