1. Harris, Marilyn MSN, RN, NEA-BC, FAAN
  2. Gorski, Lisa A. MS, RN, HHCNS-BC, CRNI(R), FAAN

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"Ms. G, RPT, deviated from the acceptable standard of care."


"Nurse H failed to communicate doctor's orders."


"The actions of Nurse N contributed to negligence and patient injury."


Lawsuits filed by home care patients or their families are becoming more frequent as healthcare continues to move to the home setting. The CNA Insurance Companies/Nursing Service Organization (CNA/NSO), which provides professional liability insurance to nurses, provides reports of claims involving monetary payments in settlements of $10,000 or more. In a comparison of claims involving nurses from 2011 to 2015, home health/hospice claims increased from 8.9% to 12.4%, with an average paid amount of $173,442 (CNA/NSO, 2015).


The terms malpractice and negligence are often used interchangeably. Negligence is "behavior that falls below the legal standard defined to protect people from harm or lack of due care that a reasonable person would expect to exercise in a given circumstance" (Sherwin, 2017, p. 563). The legal standard may be based on professional literature, protocols, or expert opinions. Negligence is established based on four elements: duty of care, breach of duty, injury, and causation (Reising, 2012). Duty is present when a nurse is responsible in some way for the patient and that duty is breached when there is a violation in the standard of care according to standards (e.g., state nurse practice act, reasonable prudent practice). The breach of duty may be related to a commission of care (e.g., wrong drug dose) or omission of care (e.g., failed to provide care). To ascertain negligence, there must also be an injury-physical, emotional, psychological, or economic. If there is no injury, even when there was a breach of duty, negligence cannot be established. Of course, it must also be recognized that not all injuries involve malpractice. The final element in determining negligence is causation, establishing the relationship between the breach of duty and the injury.


Based on our experience in reviewing legal cases and serving as expert witnesses, home care lawsuits have been filed on issues including failure to: identify signs and symptoms of infection in patients with central vascular access devices; identify pressure ulcers; monitor and report changes in a deteriorating wound; and monitor for, identify, and report adverse drug reactions when administering infusion drugs. Based on such failures in care, patients have died, lost limbs, or suffered severe complications such as renal failure and hearing loss.


Through reading home care documentation and the depositions of nurses who are named in lawsuits, a lack of knowledge and appreciation of risks related to specific treatments are often apparent. The home healthcare nurse's competence to evaluate and analyze assessment details is critically important (Gorski, 2017). Although most home care nurses are caring and competent, there are those who become very "task-oriented"-for example, providing the necessary treatment but not performing adequate assessments to identify or recognize changes in condition. In the CNA/NSO (2015) report, the need for physician communication was highlighted as based on the following closed claim:


* "The home health nurse failed to notify the practitioner of the patient's medical decline. The patient was on intravenous antibiotics for bacterial endocarditis, and on two visits to the patient's house, the nurse failed to notify the cardiologist of the patient's extremely abnormal vital signs." (CAN/NSO, p. 12)



As registered nurses, we are personally responsible for our own competence and must seek the knowledge needed to competently care for patients. Home healthcare agencies (HHA) must also take the responsibility to ensure the competence of home care staff. Interestingly, The Joint Commission (2017) named "staff are competent to perform their responsibilities" as one of the top five home care requirements in 2016 that was identified as not compliant, with a 26% noncompliance with the standard. It is also imperative to follow HHA policies and procedures, promptly communicate any changes in condition, review any ordered laboratory studies, and ensure results are communicated to the physician. Furthermore, provide appropriate patient and family education and communicate progress toward expected goals of care and changes required in the plan of care.


Nurses should read and have a sound understanding of both professional and regulatory standards and requirements. Standards of practice for home care nurses are addressed in the American Nurses Association's (ANA) Scope and Standards of Practice: Home Health Nursing. Second Edition (ANA, 2014). This publication includes 6 Standards of Practice and 10 Standards of Professional Performance for Home Health Nursing. "Standards are authoritative statements of the duties that all registered nurses, regardless of role, population, or specialty, are expected to perform competently" (ANA, 2014, p. 43). Gorski (2017) describes how the 16 home healthcare standards need to be implemented in clinical practice.


The ANA (2015)Code of Ethics for Nurses with Interpretive Statements includes nine Provisions. Provision 4 states: "The nurse has authority, accountability and responsibility for nursing practice; makes decisions and takes action consistent with the obligation to promote health and to provide optimal care." (p. v)


The Medicare Conditions of Participation (COPs) require that an HHA have specific policies and procedures in place to protect patients.


* COP 484.14 e. addresses personnel practices and requires that personnel practices and patient care are supported by appropriate, written personnel policies and that personnel records include qualifications and licensure that are kept current.


* COP 484 14 g. Coordination of patient services. All personnel furnishing services maintain liaison to ensure that their efforts are coordinated effectively and support the objectives outlined in the plan of care. The clinical record or minutes of case conferences establish that effective interchange, reporting, and coordination of patient care does occur.


* 484.18 c. Conformance with physician orders. This standard requires the HHA to demonstrate how it will ensure that patients are accepted for care only after a reasonable determination that the patient meets the HHA's admission criteria, and when applicable, meets Medicare criteria coverage under the home healthcare benefit, that the HHA has the services available to meet each patient's identified needs, and further, that the care and services needed can be furnished in the scope and frequency ordered by the patient's physician and established in the written plan of care.



Measures to prevent legal action include current policies and procedures that are dated, accessible, and followed. They should address: 1) Intake process and criteria including services provided, or not provided, by discipline; 2) Personnel policies related to job descriptions, licensure, competency evaluation, orientation, documentation, inservices to update all staff on federal, state and professional rules and regulations, and supervision; 3) Adhering to certification, licensure, and accreditation standards.




American Nurses Association. (2014). Scope and Standards of Practice: Home Health Nursing (2nd ed). Silver Spring, MD: Author. [Context Link]


American Nurses Association. (2015). Code of Ethics for Nurses with Interpretive Statements. Silver Spring, MD: Author. [Context Link]


CNA Insurance Companies/Nursing Service Organization. (2015). Nurse Professional Liability Exposures: 2015 Claim Report Update. Retrieved from[Context Link]


Gorski L. (2017). Implementing home health standards in clinical practice. In M. Harris (Ed.), Handbook of Home Healthcare Administration (6th ed., pp. 373-382). Burlington, MA: Jones & Bartlett Learning. [Context Link]


Reising D. L. (2012). Make your nursing care malpractice proof. American Nurse Today, 7(1), 24-28. [Context Link]


Sherwin A. (2017). Legal issues of concern to home care providers. In M. Harris (Ed.), Handbook of Home Healthcare Administration (6th ed., pp. 373-382). Burlington, MA: Jones & Bartlett Learning. [Context Link]


The Joint Commission. (2017). Top five most challenging requirements for 2016. Retrieved from[Context Link]