|This continuing-education offering is
sponsored by Nurses Service Organization
and provided by Lippincott Williams & Wilkins,
an accredited ANCC provider.
Nurses Guide to Malpractice: Module 3
|Unless youre incredibly fortunate, sooner or later youll make an error in your nursing practice. Not because youre careless but more likely because youre tired, overworked, or distracted. How should you respond? Find out here.|
IF YOU MAKE a mistake in your nursing practice, you probably wont be worried about a lawsuitat least, not initially. More likely, youll be concerned about your patient. Youll make sure to contact the health care provider, carry out any orders, assess the patient, and document your actions.
But once youve done all that and your patient has stabilized, the fear of a lawsuit may creep into your mind. Can you protect yourself from legal action? What should you do if you suspect youll be suedor if youre sued after all?
In this module, youll learn what you can do to safeguard yourself and your practice. But first, lets take a look at the immediate actions you need to take.
Two simple steps
The best way to minimize risks of a lawsuit is by carrying out two commonsense steps. First, notify your supervisor and request the appropriate incident report form. Second, contact your insurer if you have personal insurance. Youll get solid advice on how to respond to the incident.
After taking those steps, focus your attention on the incident report. This report alerts health care administrators to an event thats outside the facilitys ordinary operations. Reportable patient-care incidents includebut arent limited tofalls, medication errors, complaints about inadequate care, equipment-related injuries or potential for injuries, treatment-related injuries such as adverse reactions to radiopaque dyes, reactions or errors resulting from transfusions or intravenous therapy, and missed or incorrect diagnoses. (Though it usually involves a patient or visitor, an incident report can involve employees as wellfor example, employee exposure to infectious blood or body fluids.)
Each institution has guidelines for the timing and routing of an incident report. Usually the report is made to a department head or unit coordinator, who must then convey it to the risk management team, often within 24 hours of the incident. The risk management team investigates the incident, then prepares a report for the institutions legal counsel (or the legal counsel helps prepare the report).
Your job is to draft the initial report that describes the circumstances around the incident. Give only the facts (The nurse administered the medication to Mr. Jones in room 2A instead of Mr. Jacobs in 3A.). Dont draw conclusions about cause or fault (The nurse administered the medication to the wrong patient because she failed to check the identification band.). Dont record impressions (The patient was stubborn and uncooperative.). Just record the facts: clean, direct, and specific.
Confidentiality is crucial
As you prepare your incident report, keep in mind that both the report form and the information it contains are for internal use only. They must be held in strictest confidence. If theyre not, open and honest communication about the incident can be severely compromised.
The law recognizes this need for confidentialityin fact, many states extend the privilege of confidentiality to include the incident report (you need to use the facilitys official incident report form to maintain this protection). Other states allow a plaintiff access to the report. Check with your local bar association or facilitys attorney for your states guidelines.
Health care organizations have guidelines to protect the confidentiality of incident reports. Perhaps the most important of these is to keep any reference to an incident report out of the medical records because patients have access to those records. Some organizations require that the report be addressed to their attorney to be sure it falls under the attorney/client privilege; others include in the report the attorneys impression of the incident, giving the report the legal protection afforded to an attorneys work.
Confidentiality is crucial not just for the report, but also for information thats in the report. This information usually arises from confidential conversations and could be detrimental to the patient and the staff. Here are some ways you can maintain the confidentiality of the information:
Limit your discussions about the incident to the few designated individuals who have a need to know.
Use your interviews to seek information, not to share it.
Resist the temptation to describe the dramatic facts to friends or family.
Be aware that a breach of confidentiality may itself become the basis for a lawsuit.
The investigation begins
Once youve submitted your report, the risk management team will take over. You can expect their investigation to include some or all of the following activities:
reviewing the medical records for possible deviations from acceptable standards of care
notifying administrators, attorneys, and insurers
determining if the incident is covered by the states reporting requirements for medical errors
requesting and reviewing records from other facilities where the patient received care
obtaining an expert review of the care provided to the patient
securing any equipment involved in the incident so that its condition can be evaluated and maintained for evidence
assessing whether the incident actually led to an injury
assessing the damage resulting from the injury: Did the patient require a prolonged stay or additional treatment? Is the injury temporary or permanent? Is the injury considered a sentinel event by the Joint Commission on Accreditation of Healthcare Organizations, requiring a root cause analysis?
interviewing anyone who was involved in or witnessed the incident
advising and counseling the patient and family about the incident
evaluating the patients and the familys response to the incident and their general response to the staff and the care received
determining whether the patient and family need outside support; obtaining it if necessary
assisting in planning any public response thats deemed appropriate
helping the administrators decide whether to forgive outstanding amounts the patient owes the facility.
Besides investigating the incident, the risk management team will take steps to prevent it from happening again. You can expect them to identify the causes or factors that contributed to the incident and to develop preventive mechanisms. They may also put new policies and procedures in place, provide staff-development sessions, and create systems for monitoring compliance after the new procedures are implemented.
Managing the claim
So far, weve talked only about an incident report, but now we cross the threshold into the world of legal action. The dreaded event has occurred: Youve been sued for malpractice. What should you do? Here are some practical tips:
Dont attempt to evade being officially notified, either by a process server or by certified mail.
Resist the urge to place court papers in a drawer and hope the case will go away.
Dont assume that someone else has notified your insurernotify them yourself immediately. This lets the insurance investigator get statements from you and other key witnesses before the information becomes stale. Also, the sooner the insurer knows, the sooner your defense can be established and your stress can start to subside. (See Handling the Stress.) Finally, failure to report a claim in a timely manner may jeopardize your coverage.
HANDLING THE STRESS
Litigation places unexpected demands on your time, energy, emotions, and self-esteem. Here are some practical suggestions to help you cope with those demands. If youre still experiencing stress after trying these tips, consult your health care provider.
Make time to exercise your mind and body. Engage in aerobics, relaxation, yoga, or other activities that can enhance your well-being. Spend time with your family, but dont discuss the litigation. Monitor your nutrition.
In the days before you must officially answer questions or give testimony, make a special effort to maintain your equilibrium so you wont be overly exhausted, scattered, or anxious when the time comes.
Dont obsess. Keep the case off limits except when youre actively engaged in working on it.
If you have to appear in court, go there ahead of time. Is the courtroom being used? Stay and watch the proceeding. Is it empty? Get a feel for sitting in the witness box.
Dont allow the allegations to tarnish your sense of self-worth, both personally and professionally.
Acknowledge that youre under sufficient stress to compromise your nursing practice; if possible, take steps to compensate for this, such as taking time off.
Notify your employer. Even if you have personal malpractice coverage, your employer may have assistance programs to support you emotionally and financially. Your employer may also be named in the lawsuit.
If you keep a written record or diary of the events, make sure its factual, concise, and avoids blame. Make sure to show your diary to your attorney before bringing it to a deposition or to trial, as you may need to produce the diary at those times.
Dont attempt to correct or alter the patients chart; such falsification of documents can place your nursing license in serious jeopardy, even if no lawsuit results. Late entries are acceptable, but make sure to follow your facilitys policy and procedure regarding them.
As much as possible, dont discuss the case with anyone until youve met with your insurer and attorney; then proceed as advised. If you have your own malpractice insurance, your insurer will provide an attorney experienced in medical malpractice.
Dont speak to any other attorney without contacting your attorney first (the attorney may even contact you first). She may want to be present to protect your interests. Once youre represented by an attorney, an attempt by another attorney to contact you is unethical.
Dont talk about the case with reporters, patients, or staff without first consulting your attorney.
Realize that your employer and colleagues, even when they want to be supportive, may have interests that conflict with yours if theyre codefendants.
Participate in the process
Besides knowing how to behave in the face of a malpractice suit, you need to be involved in the legal process. This gives you a sense of controlan important positive element for coping with the shock of the situation.
Be prepared to learn legal terminnology and procedures. By thinking of yourself as the defendant and the person suing you as the plaintiff, you help remove the lawsuit from the emotionally charged realm of patient care and professional competence. Instead, the focus shifts to two parties and their attorneys, working within the legal system to determine appropriate rights and responsibilities. (See Understanding Res Ipsa Loquitur and Phases of a Lawsuit.)
UNDERSTANDING RES IPSA LOQUITUR
Sometimes medical negligence is so obvious that it practically announces itself. In legal terms, this is called Res ipsa loquitur, Latin for The thing speaks for itself.
In such cases, the burden of proof shifts 180 degrees. Instead of the plaintiffs attorney having to prove that the defendant was negligent, the defendants attorney must prove that the defendant wasnt. Most Res ipsa cases involve a surgical procedure done under general anesthesia: The patient is unconscious, so the medical staff has exclusive control of the situation. One example involves a surgical team leaving a surgical sponge inside a patient.
Adjust your schedule to accommodate the attorney assigned to defend you by your insurer. Accept that youll need to dedicate large blocks of time to this effort.
Submit in writing any requests, inquiries, or additional information to your attorney or insurer.
Be perfectly candid with your attorney and insurer. Remember, the attorney/client privilege protects the information you provide. Dont with-hold information, even if you think its damaging. The plaintiffs attorney may already have this information, and your attorney would be at a disadvantage if it surfaced for the first time in an official hearing.
Trust your attorney and cooperate fully: Keep appointments and return phone calls.
Make every effort to comply with court schedules. Failure to appear can result in a default judgment against you.
Listen to your attorney. Youve paid for this advice.
Count on your attorney to prepare you for fielding questions from the plaintiffs attorney. Youll be advised regarding the content of your answers and how you should act during the questioning. Youll learn the kinds of statements and behaviors that work to your advantageand the kinds that you should avoid.
Keep in mind that I dont know and I dont remember are appropriate answers during testimony.
The makeup of malpractice
Now that you have a feel for how to conduct yourself if youre sued for malpractice, lets take a look at exactly what malpractice involves. Remember, were talking about legal, not moral, issues.
From a legal standpoint, malpractice is a form of noncriminal negligence in which one party fails to protect another party from an unreasonable risk of harm. (See Finding Your Way through the Legal Labyrinth.) This negligence encompasses four elements: duty, breach, cause, and harm. Lets look at each element in the context of nursing.
FINDING YOUR WAY THROUGH
Duty. As a nurse, you have a professional relationship with your patient that requires you to act the way a reasonably prudent nurse would act in the same or similar circumstances. Called the standard of care, this professional behavior is drawn from various sources. These include the state nurse practice act, other health care laws, professional association standards, textbooks and treatises, facility policies and procedures, and equipment instructions. This broad base makes the standard of practice national rather than local, so an expert witness may be brought in from anywhere in the country. (An expert witness is retained to review or determine whether a standard of care has been breached and the extent of damages, if any.)
Of course, your duties vary, depending on your patients condition. For example, if your patient has just had surgery, the standard of care could require that you:
assess the patients condition
identify and report changes in his condition
participate in determining an appropriate plan of treatment
receive prescribers orders and question those youre not comfortable with
carry out the plan of treatment
evaluate the effectiveness of care.
Legal issues are also a part of your duties under the standard of care. Among the things youre expected to know and comply with are your states nurse practice act, other statutes and regulations governing nursing, and the laws and regulations governing patients rights, confidentiality of medical records, and nondiscrimination for your state.
Breach. A nurse breaches the standard of care when she fails to use the care an ordinarily prudent nurse would use under similar circumstances. Here are some areas where the standard of care is commonly breached:
monitoring according to the patients condition
assessing the seriousness of his condition
documenting in a timely and proper manner
notifying the health care provider of abnormal lab results
detecting the signs and symptoms of sepsis in a timely and proper manner
carefully evaluating a patient for fluid deficits or overload
documenting and maintaining strict intake and output
properly considering current drug therapies as possible causes of the patients signs and symptoms.
Cause. As you might imagine, cause is difficult to determine. More is involved than just a time sequence: The nurse did this, and that happened. The link to the harm must be either direct or proximate.
Each of those terms has a specific meaning. Direct indicates the but for rule: But for the nurses breach of a duty, this harm wouldnt have resulted. This would be the case, for example, if a nurse improperly injected a medication and injured the sciatic nerve, resulting in footdrop.
Proximate is less clear-cut. It requires that the nurse had initiated a continuous and foreseeable sequence of events that produced the injuryand without which the injury wouldnt have occurred. In one example, a nurse might change a dressing improperly, resulting in contamination of the wound site in a debilitated patient with diabetes who later becomes septic and dies.
This causal link is crucial. The complexities of todays health care are such that many other factorsincluding the patients condition or actions and the actions or inactions of other health care providerscould have caused the damage independent of what the nurse did or didnt do.
Harm. This refers to actual physical damage plus monetary harm resulting from the cost of required treatment and the loss of present and future income. (See What Will It Cost?) The patient may also claim emotional or psychological harm. A key element with culpable harm is that it must be foreseeable. As a nurse, youre expected to know what will happen to a patient when a certain intervention is or isnt performed or is performed improperly. Even though you didnt intend the harm, your training and experience should have alerted you that it could result.
WHAT WILL IT COST?
No one can determine ahead of time what a malpractice judgment will cost. Many states dont allow an amount to be stipulated; the usual request is for a reasonable sum. In any event, the damage amount is determined by losses the patient incurred, not by how much money or insurance the defendant has. Some states also allow punitive damages if the jury or judge decides the event is so flagrant that additional compensation is in order. In those cases, the award is typically double or triple the normal damage award.
Making a defense
A nurse whos facing a malpractice suit needs her attorney to marshal all available resources. In those circumstances where the nurse didnt do what the suit alleges, the attorney will focus on disproving the allegations. If the nurse did do what the suit alleges, other avenues allow for reducing or even eliminating culpability (referred to as mitigation of damages). Those avenues include contributory negligence, comparative negligence, assumption of risk, statutory immunity, unavoidable accident, and statute of limitations. Heres what each of those terms means.
Contributory negligence means the patients actions or inactions caused all or part of the damages. Examples include failure to follow instructions (such as to maintain bed rest) and misuse of equipment. A defense based on contributory negligence must show that the patients conduct fell below what a reasonably prudent patient would do to maintain personal safety and that this negligent conduct caused the harm.
Comparative negligence applies only to situations where both the patient and the nurse are found to be negligent. When this happens, the judge or jury can assign a percentage of fault to each party. For example, if the patient suffered $20,000 worth of damages and the court finds the patient 40% negligent and the nurse 60% negligent, the nurse would have to pay $12,000.
Assumption of risk has three components: the harm was within an expected risk, the patient knew and understood this risk, and the patient chose to take the risk freely and voluntarily. A valid informed consent is the usual basis for an assumption-of-risk defense. The consent substantiates that the patient understood the procedure, its substantial risks (in legal terms, its material risks), its reasonable alternatives, its expected outcome, and the effects of not performing it. For a surgical procedure, the surgeon who performs the procedure or intervention is responsible for obtaining informed consent. By signing the informed-consent form, the nurse is simply witnessing the patients signature.
Statutory immunity covers Good Samaritan acts, those specific emergency circumstancesfor example, an auto accidentin which a nurse or health care provider voluntarily assists a patient and accepts no fee for this service. Many states grant a certain immunity from lawsuits to professionals in such circumstances, requiring only that they act in good faith and without gross negligence or willful or wanton misconduct.
Nurses need to be especially aware of two important aspects of statutory immunity. First, caregivers arent required to assist in an emergency; but, once they start, theyre expected to provide care thats reasonable under the circumstances. Second, statutory immunity doesnt include favors done for relatives, friends, or even strangers. It applies only to care provided at the scene of an accident, emergency, or disaster.
Unavoidable accidents are events that the nurse couldnt have done anything to prevent. Typically, these accidents happen in the nurses absence; for example, a patient trips because of loose slippers or a robe thats dragging on the floor.
The statute of limitations requires that a lawsuit be filed within a specific period of time from the date of the injury or the date when the patient discovered or should have discovered that medical negligence occurred. The period varies from state to state but is usually 1 to 2 years. Some states modify this statute for children by extending it to 2 years after theyve turned age 18.
A matter of outlook
Most nurses welcome, even look for, opportunities to broaden their knowledge and experience in their profession. Few of them consider a malpractice lawsuit as one of those opportunities. But thats exactly what it can be, not in the sense that it will make you a better person, but in the real sense that you work in a world where things sometimes go wrong. A malpractice lawsuitonce any inappropriate guilt or shame is stripped awaybecomes a learning opportunity. If it happens to you, remain calm and use it to broaden your professional scope and to help others see that the words legal and nightmare arent necessarily bound together.
Aiken, T.: The Plaintiff Attorneys Perspective, in Nursing Malpractice, 2nd edition, P. Iyer (ed). Tucson, Ariz., Lawyers & Judges Publishing Co., 2001.
Dochterman, J., and Grace, H. (eds): Current Issues in Nursing, 6th edition. St. Louis, Mosby-Year Book, 2001.
Pozgar, G.D.: Legal Aspects of Health Care Administration, 8th edition. Gaithersburg, Md., Aspen Publishers, 2001.
Tonia Dandry Aiken, RN, BSN, JD, president and chief executive officer, RN Development Inc., New Orleans, La., served as nursing/legal consultant for this series. She has served as a consultant and speaker for NSO.