This continuing-education offering is
sponsored by Nurses Service Organization
and provided by Lippincott Williams & Wilkins,
an accredited ANCC provider.

Nurse’s Guide to Malpractice: Module 3

What to do if you’re sued for malpractice

Unless you’re incredibly fortunate, sooner or later you’ll make an error in your nursing practice. Not because you’re careless but more likely because you’re tired, overworked, or distracted. How should you respond? Find out here.

IF YOU MAKE a mistake in your nursing practice, you probably won’t be worried about a lawsuit—at least, not initially. More likely, you’ll be concerned about your patient. You’ll make sure to contact the health care provider, carry out any orders, assess the patient, and document your actions.

But once you’ve 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 you’ll be sued—or if you’re sued after all?

In this module, you’ll learn what you can do to safeguard yourself and your practice. But first, let’s 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. You’ll 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 that’s outside the facility’s ordinary operations. Reportable patient-care incidents include—but aren’t limited to—falls, 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 well—for 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 institution’s 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.”). Don’t draw conclusions about cause or fault (“The nurse administered the medication to the wrong patient because she failed to check the identification band.”). Don’t 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 they’re not, open and honest communication about the incident can be severely compromised.

The law recognizes this need for confidentiality—in fact, many states extend the privilege of confidentiality to include the incident report (you need to use the facility’s official incident report form to maintain this protection). Other states allow a plaintiff access to the report. Check with your local bar association or facility’s attorney for your state’s 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 attorney’s impression of the incident, giving the report the legal protection afforded to an attorney’s work.

Confidentiality is crucial not just for the report, but also for information that’s 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 you’ve 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 state’s 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 patient’s and the family’s 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 that’s 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, we’ve talked only about an incident report, but now we cross the threshold into the world of legal action. The dreaded event has occurred: You’ve been sued for malpractice. What should you do? Here are some practical tips:

Don’t 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.

Don’t assume that someone else has notified your insurer—notify 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 you’re 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 don’t 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 won’t be overly exhausted, scattered, or anxious when the time comes.

Don’t obsess. Keep the case ’off limits’ except when you’re 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.

Don’t allow the allegations to tarnish your sense of self-worth, both personally and professionally.

Acknowledge that you’re 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 it’s 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.

Don’t attempt to correct or alter the patient’s 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 facility’s policy and procedure regarding them.

As much as possible, don’t discuss the case with anyone until you’ve 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.

Don’t 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 you’re represented by an attorney, an attempt by another attorney to contact you is unethical.

Don’t 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 they’re 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 control—an 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 plaintiff’s attorney having to prove that the defendant was negligent, the defendant’s attorney must prove that the defendant wasn’t. 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 you’ll 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. Don’t with-hold information, even if you think it’s damaging. The plaintiff’s 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. You’ve paid for this advice.

Count on your attorney to prepare you for fielding questions from the plaintiff’s attorney. You’ll be advised regarding the content of your answers and how you should act during the questioning. You’ll learn the kinds of statements and behaviors that work to your advantage—and the kinds that you should avoid.

Keep in mind that “I don’t know” and “I don’t remember” are appropriate answers during testimony.

The makeup of malpractice

Now that you have a feel for how to conduct yourself if you’re sued for malpractice, let’s take a look at exactly what malpractice involves. Remember, we’re 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. Let’s look at each element in the context of nursing.

FINDING YOUR WAY THROUGH
THE LEGAL LABYRINTH

Nurses who’ve been sued report feeling overwhelmed by their sudden immersion into the legal labyrinth. Yet the world of law is perhaps no more complicated than the world of nursing. To help you thread your way through this environment, here’s an overview of its basic structure and concepts as they apply to medical malpractice.

What the law does

In general, the law exists to settle disputes, maintain order, protect persons and property, and provide a framework for common expectations about transactions, relationships, and events of daily life. In terms of malpractice, it exists to make a patient ’whole’ again by awarding money damages if the patient was injured because of medical negligence.

How the law is expressed

The U.S. Constitution is the supreme law of the land; no other constitution, law, or regulation can be inconsistent with it. State constitutions can provide more rights than the federal constitution, but not fewer. Besides their constitutions, federal and state legislatures enact three types of laws: statutes, regulations, and case law.

Statutes are laws enacted by legislative bodies, either the U.S. Congress or the state legislatures. Federal statutes govern the health care industry by establishing laws and federal regulatory agencies. State statutes govern specific health care provisions such as the content and availability of patient records, living wills, and advance directives; privacy and confidentiality rights and protections; and the definition of child, spousal, and elder abuse.

Each state regulates its own institutional and professional licensing. Statutes governing licensure of health care institutions often contain specific guidance on the care of patients. State boards of nursing, created by statute, administer each state’s nurse practice act, itself also a statute.

Regulations are the ’rules’ made by federal and state administrative agencies. The board of nursing, for example, creates regulations governing specific details of nursing practice. Before regulations become final, the public must be allowed an opportunity to comment on them.

Case law (also called ’common law’) is a body of judicial findings handed down in response to lawsuits. The body of case law establishes a precedent for other courts to follow.

Where malpractice fits in

Two types of law exist at both the federal and the state levels: criminal law and civil law. With criminal law, the judgment includes a punishment, usually a fine or imprisonment. With civil law, the judgment generally includes the payment of money as compensation for a loss or injury.

Civil law includes many areas; among the more common are corporate, tax, constitutional, and contract law. The area of civil law that includes malpractice is called tort law.

A tort is a wrong that violates someone else’s person or property. It’s intentional if it’s done for the purpose of causing the violation or with reasonable certainty that the violation will result. It’s unintentional if it results from negligence. Malpractice is an unintentional tort. Therefore, a malpractice judgment generally includes the payment of money as compensation for a loss or injury.

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 patient’s condition. For example, if your patient has just had surgery, the standard of care could require that you:

assess the patient’s condition

identify and report changes in his condition

participate in determining an appropriate plan of treatment

receive prescriber’s orders and question those you’re 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 you’re expected to know and comply with are your state’s 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 patient’s 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 patient’s 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 nurse’s breach of a duty, this harm wouldn’t 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 injury—and without which the injury wouldn’t 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 today’s health care are such that many other factors—including the patient’s condition or actions and the actions or inactions of other health care providers—could have caused the damage independent of what the nurse did or didn’t 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, you’re expected to know what will happen to a patient when a certain intervention is or isn’t performed or is performed improperly. Even though you didn’t 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 don’t 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 who’s facing a malpractice suit needs her attorney to marshal all available resources. In those circumstances where the nurse didn’t 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. Here’s what each of those terms means.

Contributory negligence means the patient’s 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 patient’s 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 patient’s signature.

Statutory immunity covers Good Samaritan acts, those specific emergency circumstances—for example, an auto accident—in 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 aren’t required to assist in an emergency; but, once they start, they’re expected to provide care that’s reasonable under the circumstances. Second, statutory immunity doesn’t 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 couldn’t have done anything to prevent. Typically, these accidents happen in the nurse’s absence; for example, a patient trips because of loose slippers or a robe that’s 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 they’ve 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 that’s 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 lawsuit—once any inappropriate guilt or shame is stripped away—becomes 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 aren’t necessarily bound together.

SELECTED REFERENCES

Aiken, T.: “The Plaintiff Attorney’s 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.


Copyright 2003 Nurses Service Organization, 159 E. County Line Rd., Hatboro, PA 19040-1218. This article may not be reproduced without written permission of Nurses Service Organization.