LEGAL CONCERN IN NURSING; HOW THE NURSE PROTECTS HERSELF AGAINST LAWSUIT

LEGAL CONCERNS IN NURSING: HOW THE NURSE 

PROTECT  HERSELF AGAINST LAWSUIT

A growing number of nurses across the world are finding themselves forced out of the sick room into the courtroom as the prevalence of malpractice suits against nurses steadily increases. While lawsuits against nurses are still somewhat rare, nurses are more frequently being brought into civil cases, either as an individual or in conjunction with a suit against a facility.

“We look at it from two perspectives, the severity and the frequency,” said David Griffiths, vice president of marketing for the Nurses Service Organization (NSO), the U.S largest provider of professional liability insurance coverage for nurses. “The severity is the total dollar outlay. The frequency is the number of lawsuits. We have seen a continual increase in both the severity and the frequency in the past ten years. Since 1997, the number of suits and the money awarded has grown dramatically.”

As the nursing shortage continues to put a strain on the nation’s healthcare system, nurses within the hospitals and medical facilities are finding themselves overworked and suffering from stress. They are often forced to fill in the gaps caused by understaffed departments and may be taking on too many responsibilities out of sheer necessity. Studies have shown that fatigue and high stress conditions can lead to human error, which impact patient outcomes. Combined with the growing trend toward civil suits, nurses are an easy target for litigation. Nurses facing criminal charges could not only lose their license, they     could also face jail time.

When you respond to a patient needs in the hospital as an emergency, his urgent clinical needs will naturally take precedence over your concerns about legal risk. Your responds must be immediate and decisive. But you cannot afford to ignore the threat of liability inherent in every emergency/ care given to your patient.

LEGAL TERMS USED

Battery: The unauthorized touching of a person by another person such as when a health professional threat a patient beyond what he consented to.

Damages: An amount of money a court orders you a defendant to pay the plaintiff in deciding the case in favor of the plaintiff.

Negligence: Failure to act as an ordinary prudent person, conduct contrary to that of a reasonable person under similar circumstances.

Malpractice: A professional person wrongful conduct, improper discharge of professional duties or failure to meet standards of care. Any such action can result in harm to the other person.

Duty: A legal obligation owed by one party to another. Every person has a duty of care to all other people to avoid causing harm or injury by negligence.

Liability: Legal responsibility for failure to act, so causing harm to another person.

A legal duty exists when a nurse is working within the scope of her employment. The employer-employee responsibility creates the duty. If the nurse works outside her place of employment, the general rule is that no duty of care existed. In a lawsuit charging the nurse with negligence, the plaintiff has to prove that the nurse breached that duty and that the breach caused her injuries. These elements must exist before negligence can be proved- duty, breach of duty, injury and proximal cause.

COMMON PITFALLS IN NURSING

FAILURE TO RECOGNIZE EMEGENCY AND RESPOND APPROPRIATELY:

Especially in the emergency department(ED), the emergency department nurses (EDN) who triages a case are more liable to negligence. To assist the nurses and avoid legal problems, the ED must establish and maintain written protocols that specify the type of complain/ cases that the triage nurse should refer elsewhere. Then using the guideline, the triage nurse most use her professional nursing judgment based on the institution protocol to admit or refer cases. Before referral the EDN must ensure (through proper assessment) that the patient will not benefit from her institutions care if admitted; but first aid management can be given to stabilize the patient before referral. For instance, an EDN referring a category 1 emergency with severe bleeding without getting any information from him, without advising the ED doctor of the extent of the bleeding and without taking action to stop it( New Biloxi Hospital vs. Franxier;1962).

 FAILURE TO COMMUNICATE ADEQUATELY:

 In the eyes of the court, if something wasn’t documented, it wasn’t done. Your physical assessment may reveal crackles of new onset, but if you don’t document this finding, other healthcare providers lack the information they need to formulate an appropriate plan of care for the patient.
Lack of documentation also can result in a nursing intervention being done twice.

Example: an obstetric nurse failed to notify the chairman when an attending doctor refuses to respond adequately to a patients worsening condition (Utter vs. United Hospital Center; 1997). Reporting such event to the chairman was required by hospital policy and stipulated in the hospital nursing protocol/ manual. Information must be given in CLEAR, SIMPLE and UNAMBIGOUS language.

Not communicating with the patient makes them feel like something less than people. Milanesi 2001 identified 3Rs of risk management – recording, reporting and rapport. Poor rapport between staff, patient and relative is probably the most frequent cause of communication breakdown. “If staff took the time and trouble to concentrate on what is being said to them and respond appropriately, bad relations could be avoided”. (Palmer, 1993). Communicating respect for others by involving them in decision making process is a valuable technique which cost little.

MEDICATION ERROR

The risk of making a medication error is compounded by the hectic environment and need for speed as well as accuracy in drug administration. Errors can be from giving wrong drug to the wrong person, through the wrong route, site and giving the wrong dose. Etc.

A nurse instilled hydrochloric acid (HCL) into the nose of a patient instead of the nose drop ordered by the doctor. (Neel vs. San Antonia community Hospital 1959)

To avoid a medication error, make sure you understand the order of the doctor and seek clarification if it is unclear. If you are not satisfied with the answer you get, you can refuse to administer the drug but be sure to notify your supervisor or the head nurse of our decision.

PREVENTABLE EQUIPMENT FAILURE

Often the nurse is the first to note equipment malfunction. It is the duty of the nurse on duty to check his working environment/ equipment and report any malfunction.

A hospital was held liable for a patient’s death due to lack of proper oxygen equipment (Ballaire General Hospital vs. Campbell 1984).

FAILURE TO ACT AS A PATIENTS ADVOCATE

Failure to act as patient advocate is an increasingly common element in malpractice suits. Frequently, patient advocacy relates to challenging physician orders. Physician challenges may involve medications, respiratory management, discharge decisions, and many other aspects of patient care. It may also involve a request that the patient be moved to a different unit or even a different facility to receive optimal care.

If you think a physician’s order could harm your patient, first discuss the situation with the physician; if this does not resolve your concern, activate the chain of command within your facility’s nursing hierarchy.

The chain usually starts with the charge nurse or unit manager.
Nurses typically pride themselves on being patient advocates and on being the last safety check. But sadly, physician intimidation or unsupportive management may prevent full advocacy efforts by nurses.

Even when a physician decides to take no action, if the nurse knows
something is wrong, he or she must request help from the charge nurse or the
nurse supervisor and keep asking for help until the patient receives
proper care.

UNDERSTANDING TORT CLAIMS

When a patient decides to sue a nurse or other health professionals who cared for him, he must select the charge that applies. The law recognizes 6 charges also called tort claims. The law also classifies them as intentional and unintentional tort.

UNINTENTIONAL TORT

Negligence:

 Leaving a foreign body inside a patient following surgery.

 Failing to observe a patient as ordered by the doctor

INTENTIONAL TORTS

Assault

 Threatening a patient during or before a procedure.

Battery:

 Forcing a patient to ambulate without his consent.

 Forcing a patient to submit to a treatment he specifically refused.

Slander:

Making false accusation about a patient in front of newspaper reporters.

Invasion of privacy:

 Allowing unauthorized persons to read a patient’s medical record.

Taking pictures of a patient without his consent.

False imprisonment: Refusing to let a patient return home.

HOW THE NURSE PROTECT HERSELF AGAINST LAWSUIT

Ø Request a clear written description of your roles in the hospital. The hospital should have an overall and an individual policy that shows your limit of nursing care.

Ø Document everything you do so there are no questions later about your actions. Your note should reflect the nursing process; document your assessment, care and evaluations.

Ø Make sure of your own competence. If your role expands, your skills have to grow too. If this requires advance courses and supervised clinical experience make sure you get both.

Ø Be sure you know who is responsible for making administrative decisions. Always consult this person when you are involved in conflict with your patient, police or others in the hospital. Remember that this person speaks for the hospital and if you act without his approval you may involve the hospital in the consequences of your actions.

Ø Insure yourself; damages awarded to patients can be very high. So if you do not have your own professional liability insurance and your hospital fail to defend you against the lawsuit, it then means that you have to pay the damages yourself.

Ø Ensure you have a valid license by the professional body you belong to and always renew your license when it expires.

Ø Maintain open, honest, respectful communication with patients and their families. They’re less likely to sue if they believe the nurse has been caring.

RECOMMENDATIONS

Having learnt that individual (nurses) and the hospital at large can be sued and charged for damages, the following recommendations are hereby made to the hospital and to the nurses.

Ø Hospitals must ensure that there workers have been trained and duly registered with the professional body in their country of practice.

Ø Job description must be given to individual nurses on resumption of their duties and if possible after every year to older workers.

Ø Hospitals should increase the nursing staff strength depending on the number of patients, in other to reduce stress on the nurses which can be responsible for common pitfalls in nursing.

Ø Seminars and workshops should be organized at least every 3 months on current trends in nursing especially in specialties(ER &ICU)

Ø There is also need to review the salary scale of nurses in other to allow nurses have the necessary fund to insure themselves in case of a lawsuit.

Ø Nurses need to understand and respect patients’ bill of right

Ø Nurses MUST renew their license as at when due

Ø Nurses must involve themselves on professional training and improve their skill in nursing management.

Ø Every nurse must work within her scope and as indicated in her job description.

Ø Seek advice whenever in doubt

Ø Always write a comprehensive observation, recommendation about your patient in the progress note.

CONCLUSION

Many patients are recognizing their rights in our society and this have increased the cases of negligence in the court for nurses and other health professionals.

You or your hospital can be charge to court, protect yourself and save your hospital the many stress by your fine professional conduct and always stick to your hospital policies. Nurses can help protect themselves and minimize the risks associated with malpractice by adhering to a few simple measures. Among the most important of these measures is to thoroughly document all events. By keeping an ongoing record of time spent with the patient, a busy nurse can be sure of what did or did not happen in each visit, and eliminate any guesswork for a specific chain of events.

It is also important for nurses to share information with the patient, including what medications they are receiving and what procedures are being done. This can prevent medication errors, allergic reactions and even remind the nurse of a doctor’s order that was changed. The nurse should then double check to make sure that they are doing exactly what was prescribed by the attending physician.

Nurses—especially new graduates—should also be realistic about their own limitations. During long shifts, illnesses, or especially stressful periods, they might want to ask for help from a colleague or alert a supervisor if they need a break or aren’t feeling well enough to care for patients appropriately.

Despite these protective measures, malpractice cases can still occur, so nurses should also consider protecting themselves with professional liability insurance.

REFERENCES

Amanda Sounart (2009) Mishaps & malpractice: how new nurses can protect themselves. Churchill Livingstone New York.

Brooke P.S(2006). So you’ve been named in a lawsuit: what happens next? Nursing.;36 (7):44-48.

Grossman etal (2005) Cambrigde textbook on accident and emergency medicine

Catalano JT. (2006) Nursing now! Today’s issues. 4th ed. Philadelphia: FA Davis;

Eugene w Jackson, (1999) Emergencies; Nurses Reference library Philadelphia.