final -mam lim

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Leslie Joy T. TonioBSN 4A/Group 1

Nurses, Negligence, and Malpractice

Eileen M. Croke EdD, ANP, LNC-C AJN, American Journal of NursingSeptember 2003Volume 103 Number 9Page 54

DEFINING AND TRACKING MALPRACTICE

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) definesnegligence as a "failure to use such care as a reasonably prudent and careful person would useunder similar circumstances." JCAHO defines malpractice as "improper or unethical conduct orunreasonable lack of skill by a holder of a professional or official position; often applied tophysicians, dentists, lawyers, and public officers to denote negligent or unskillful performance ofduties when professional skills are obligatory. Malpractice is a cause of action for whichdamages are allowed."4 Malpractice is defined variously under state nurse practice acts,institutional policies, and federal guidelines such as JCAHO standards, all of which may be takeninto consideration in court.

Several factors have contributed to the increase in the number of malpractice cases againstnurses.

* Delegation. As a result of cost-containment efforts in hospitals and HMOs, nurses aredelegating more of their tasks to unlicensed assistive personnel. Delegation of some of thesetasks may be considered negligence according to a given facility's standards of care or a state'snurse practice act.

* Early discharge. Patients are being discharged from hospitals at earlier stages of recovery and

with conditions requiring more acute and intensive nursing care. Nurses may be sued for notproviding care or not making referrals appropriate to the patient's condition.

* The nursing shortage and hospital downsizing have contributed to greater workloads fornurses, increasing the likelihood of error.

* Advances in technology require nurses to have knowledge of a variety of technologies'capabilities, limitations, and safety features.

* Increased autonomy and responsibility of hospital nurses in the exercise of advancednursing skills have also brought about greater risk of error and liability.

* Better-informed consumers are more likely to be aware of malpractice issues and torecognize insufficient or inappropriate care.

* Expanded legal definitions of liability have held all professionals to higher standards ofaccountability. For example, because of the expanded scope of practice of advanced practicenurses, courts have held them to a medical standard of care.

REDUCING POTENTIAL LIABILITY

"Nursing judgment involves the analysis of facts and circumstances on a case-by-case basis. To prevent malpractice, it is essential that the nurse undertake this evaluation with regard to
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everything that he or she does in the clinical setting." Increasingly, nurses are held accountable tothe public for their professional judgment and the outcomes arising from that judgment.

Malpractice litigation is both professionally and emotionally devastating and can be financiallydisastrous. Each nurse can take steps to help reduce potential liability by using caution andcommon sense and by maintaining a heightened awareness of his or her legal responsibilities.

The following can help nurses reduce potential liability.Maintain open, honest, respectful relationships and communication with patients andfamily members.

* Patients are less likely to sue if they feel that a nurse has been caring and professional.

* Don't offer opinions when a patient asks what you think is wrong with him-you may beaccused of making a medical diagnosis.

* Don't make a statement that a patient may interpret as an admission of fault or guilt.

* Don't criticize health care providers or their actions when you are with patients.

* Maintain confidentiality in the health care setting.

Maintain competence in your specialty area of practice.* Attend relevant continuing education classes.

* Attend relevant hospital in-service programs.

* Expand your knowledge and technical skills.

Know legal principles and incorporate them into everyday practice.

* Keep up to date on your state's nurse practice act.

* Keep up to date on hospital policies and procedures.

Practice within the bounds of professional licensure.

* Perform only the nursing skills allowed within your scope of practice and that you arecompetent to perform.

Know your strengths and weaknesses. Don't accept a clinical assignment you don't feelcompetent to perform.

* Evaluate your assignment with your supervisor

* Accept only those duties you can perform competently

* Let an experienced nurse on the unit assume responsibilities for the specialized duties.

* Document all nursing care accurately.

* If care is not documented, courts assume it was not rendered.* When documenting care on the patient's chart, use the FACT mnemonic: be factual, a ccurate,c omplete, and t imely.

Six Major Categories of Negligence That Result in Malpractice

Lawsuits

Failure to follow standards of care, including failure to


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* perform a complete admission assessment or design a plan of care.

* adhere to standardized protocols or institutional policies and procedures (for example, using animproper injection site).

* follow a physician's verbal or written orders.

Failure to use equipment in a responsible manner, including failure to* follow the manufacturer's recommendations for operating equipment.

* check equipment for safety prior to use.

* place equipment properly during treatment.

* learn how equipment functions.

Failure to communicate, including failure to

* notify a physician in a timely manner when conditions warrant it.

* listen to a patient's complaints and act on them.

* communicate effectively with a patient (for example, inadequate or ineffective communication

of discharge instructions).

* seek higher medical authorization for a treatment.

Failure to document, including failure to note in the patient's medical record

* a patient's progress and response to treatment.

* a patient's injuries.

* pertinent nursing assessment information (for example, drug allergies).

* a physician's medical orders.

* information on telephone conversations with physicians, including time, content ofcommunication between nurse and physician, and actions taken.

Failure to assess and monitor, including failure to

* complete a shift assessment.

* implement a plan of care.

* observe a patient's ongoing progress.

* interpret a patient's signs and symptoms.

Failure to act as a patient advocate, including failure to

* question discharge orders when a patient's condition warrants it.

* question incomplete or illegible medical orders.

* provide a safe environment.

What To Do If You Are Served with a Complaint

First: notify your insurance carrier.

A complaint is a legal pleading made by a plaintiff to initiate a lawsuit. It includes a formalstatement of the charges and the alleged cause or causes of action against the defendant. Thisdocument may be the first indication a nurse has that she's being named as a defendant in a civil


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lawsuit. Once the complaint has been served, the nurse must notify her employer and liabilityinsurance carrier. Usually the insurance carrier and the employer will assign attorneys to thecase, but if the nurse doesn't have liability insurance, she should engage the services of anattorney. The nurse must also refrain from discussing the case with anyone but the assigneddefense attorney.

When notifying her liability insurance carrier, the nurse should give a written description of theevent, including the time, place, and circumstances surrounding the incident, as well as a list ofthe names and addresses of the injured party or parties and any witnesses. Once served, the nursemust forward all relevant documents to the insurance carrier within the specified time period setforth in the liability insurance policy. If the nurse does not notify the insurer within the specifiedtime period, the insurer may deny coverage to the nurse.

Reference: http://www.nursingcenter.com/library/journalarticle.asp?

article_id=423284

Nursing Legal Issues: How to Protect

YourselfWith any professional license comes ethical and legal responsibility. Doctors take theHippocratic Oath pledging to do no harm to patients; lawyers are held responsible for theirclients in court; and architects are responsible for the safety of the structures they build. Nursesare no different. Whether it's administering a medication incorrectly or failing to obtain aninformed consent from a pre-op patient, nurses may be held legally responsible if they fail tomeet certain standards.

Five Legal Issues in Nursing: What Every Nurse Should Know

All nurses should be familiar with nursing law and ethics and understand how nursing legalissues can affect them. Know your basic nursing laws and avoid lawsuits and liability:

1. Signatures Are Golden

When a physician or other health care provider orders a procedure be done to a patient, it is thenurse's responsibility to obtain an informed consent signature. This means that the patient:

Understands the procedure and the alternative options

Has had a chance to ask the provider any questions about the procedure

Understands the risks and benefits of the procedure

Chooses to sign or not sign to have the procedure performed.

If the nurse does not obtain signatures, both the nurse and the operating provider can be heldliable for damages incurred.

2. Document, Document, Document

It is the nurse's responsibility to make sure everything that is done in regards to a patient's care(vital signs, specimen collections, noting what the patient is seen doing in the room, medicationadministration, etc.), is documented in the chart. If it is not documented with the proper time andwhat was done, the nurse can be held liable for negative outcomes. A note of caution: if there


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was an error made on the chart, cross it out with one line (so it is still legible) and note thecorrection andthe cause of the error.

3. Report It or Tort It

Allegations of abuse are serious matters. It is the duty of the nurse to report to the properauthority when any allegations are made in regards to abuse (emotional, sexual, physical, andmental) towards a vulnerable population (children, elderly, or domestic). If no report is made, thenurse is liable for negligence or wrongdoing towards the victimized patient.

4. Rights to Privacy

The nurse is responsible for keeping all patient records and personal information private and onlyaccessible to the immediate care providers, according to the Health Insurance Portability andAccountability Act of 1996 (HIPAA). If records get out or a patient's privacy is breached, theliability usually lies on the nurse because the nurse has immediate access to the chart.

5. You're Dosing WHAT?!

Medication errors account for 7,000 deaths and 770,000 patients injured each year in the US. It is

the nurse's responsibility to follow the five "rights" of medication administration: right dose,right drug, right route, right time, and right patient. If a nurse pays attention to those details, thelikelihood of a medication error is greatly reduced, thereby saving the nurse and health careinstitution from liability for damages.

While these are some of the main issues nurses might face legally, you should visit your statenursing board's Website for more information. Another good source for nursing legal issues isthe American Nurses Association Website. It has a Code of Ethics guide that may be purchasedonline.

Reference: http://www.medi-smart.com/nursing-articles/nursing-law/legal-issues

Legal Issues in Psychiatric NursingBy Jennifer Leigh, eHow Contributor

Psyciatric nurses benefit from understanding the law.

Psychiatric nurses provide a variety of services to mental health patients,according to the Bureau of Labor Statistics. Because of this, psychiatric nursescan face a number of legal concerns as well. To make sure they're legallyprotected, it is important for psychiatric nurses to stay up-to-date on legal andethical issues in their field.

Patients' Rights
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Psychiatric nurses must follow certain legal standards pertaining to patients'

rights. Patients have the right to treatment in a public hospital, and they have theright to refuse treatment if they are deemed mentally competent by a judge in acourt of law. Patients also have the right to informed consent, which means theymust understand why they are being treated, understand their treatment optionsand sign an informed-consent agreement to be treated.

Confidentiality

According to the American Nurses Association (ANA) 2001 Code of Ethics for

Nurses, psychiatric nurses have a duty to protect the confidentiality of patients.Patient information cannot be released without the patient's consent, unless it isnecessary to complete treatment or if the patient is threatening his life. Otherexceptions include mandated reporting of child or elder abuse and a subpoena ofmental health records.

Standard of Care

Psychiatric nurses have a standard of care established by the ANA, state licensingboards and hospital policies and procedures. This standard of care mandates thatpatients be treated a certain way or the nurse could face legal issues or loss oflicense. Examples of standards of care include treating the patient with dignity,honoring self-determination, and respecting the individuality of each patient.

Negligence and Malpractice

If a patient is injured while in a psychiatric nurse's care, the nurse may face legal

issues related to negligence or malpractice, which indicate that the nurse didsomething that caused harm to the patient. To prove negligence or malpractice, itis necessary to explain the nurse's original duty, show how this duty was not met,

and identify the cause of harm to the patient. The patient's physical harm isconsidered, along with mental pain or suffering she may have endured.

Read more: Legal Issues in Psychiatric Nursing | eHow.com

http://www.ehow.com/list_6717618_legal-issues-psychiatric-

nursing.html#ixzz1NSnpw5Rl

Legal Issues for Nurses

Nurse Practice Act

Obtain a copy of the Nurse Practice Act from your State Board of Nursing. This is the standardthat will be used if a malpractice suit is filed. Be familiar with the applicable acts and duties ofthe personnel in your area of practice, which will vary from state to state.

Can an LPN care for patient with a Swan-Ganz catheter?

Can an LPN hang a piggyback with 50 cc's of fluid in it or push IVmeds?

Can an RN remove chest tubes, manipulate Swan-Ganz, etc.?

What are the duties of a nurse's aid and/or tech and are the RN's liable?


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The answers to these types of questions can be found in your Nurse Practice Act. If you don'thave one, request one now and if you relocate, request a new one with your license.

Policy and Procedure Manuals

Review and always double check both the general nursing manual as well as any that pertain toyour specific area of practice. If your hospital's policy differs fro the Nurse Practice Act, follow

the guidelines in the Nurse Practice Act. i.e.: If your institution allows unlicensed personnel toinsert foley catheters, but the policy found in the Nurse Practice Act requires that insertion byperformed by licensed personnel only, the licensed nurse should insert the foley. Remember, ifthere is a negative outcome, the licensed nurse will be judged by the standards of the NursePractice Act.

Insurance

This is a must-have. Shop around for a policy that suits your needs. There are two types:

Occurrence Type: means the company that covered you during the period of the occurrence willbe responsible for damage and expenses.

Claims Type: means the company will cover any claims made while the policy is in effect, nomatter when the occurrence happened.

Questions to ask the company representative include:

"Can I select my own attorney to represent me?" "Does your company routinely settle claims orcan I have my day in court?"

Education

Continuing education is a must. Not only does it keep you abreast of the most current changesand innovations in your specialty area, it is an area that attorneys will investigate if a claim isfiled.

License and CertificationsThese must remain current at all times. This is another area that attorneys will investigate if aclaim is filed.

Terms To Know

Negligence: failure to act as a reasonably prudent person would act under the samecircumstances --- failure to do something --- to do something carelessly or recklessly

Malpractice: negligence by a professional

Assault: a threat or attempt to inflict bodily harm combined with the ability to commit the act.i.e.: "if you move one more inch, I'll tie you to the bed."

Battery: intentional harmful or offensive contact that occurs without consent (use of restraintswithout an order or a written policy of protocol).

Libel:publication of defamatory statements (Nurses Notes will be scrutinized for libel.)

Slander: oral defamatory statements (can be words or gestures)

Statute of Limitations: there are periods defined by state statute during which you may file aclaim or it is forever barred (the clock starts at the time of the occurrence or at the time the
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occurrence was discovered or should have been discovered, such as a lap sponge left in apatient's abdomen that was discovered several years post operatively).

Informed Consent: permission given for a proposed treatment or procedure following fulldisclosure of risks, benefits, and alternatives by the physician --- when you are asked to sign yourname as a witness on the consent form. Remember you are witnessing the patient's signature

onlyPhysician Orders

Telephone Orders: Repeat each order to verify what you heard is what was ordered.

Illegible Orders: Ask the physician for the interpretation. NEVER GUESS!

Inappropriate Orders: Inform the physician of the policy and standards. If the physician insiststhat the order be completed, contact the supervisor immediately.

Communication

- Be honest.

- Don't be afraid to apologize if an apology is needed.

- Be a good listener. Sometimes it isn't what they say, but how they say it.

- A little PR goes a long way.

- Schedule time each shift to speak with the patient and his family.

- The medical record is the ultimate communication tool.

Remember, most lawsuits are filed simply because the patient or the family isn't happy.Good communication skills can alleviate this.

Documentation

- Be accurate, objective, and complete.

- Beware - negative charting (check lists) may not hold up in court. It is beneficial to documentin narrative form a complete assessment at least once during your shift as well as any event.Many courts still feel that if you didn't chart it, you didn't do it.

- Use only approved abbreviations (found in the Policy and Procedure Manual).

- If you make an error, draw a line through it and write "mistake in entry" followed by yourinitials. Do not write "error" as it has a negative connotation.

- Document calls to physicians noting the time the page was made or the call was placed, as wellas the time the call was returned and the physician's response.

- Document all teaching. If family members are present, list their names in your note.

- Document the review of "discharge instructions" including the review of any medicationsprescribed and any handouts provided is of utmost importance.

- Document all patient comments regarding their condition, both the positive and negative ones.

- Record the effects of medications as well as the med, dose, time, route and reactions totreatments and your response.

- If something unusual occurs, record all pertinent information in your notes, them complete anincident report. Do not mention the incident report in your notes.


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- If you perform a procedure on a patient assigned to another nurse, you must document youractions in the patient's chart.

- Not every treatment or procedure that you perform or assist with is going to have a positiveoutcome. If there is a negative outcome, document the details truthfully in your notes and ifnecessary, complete an incident report.

Reference: http://www.medi-smart.com/nursing-articles/nursing-law/qrs1

Rosal T. BagadiongBSN 4A/ Group 1

Professional Negligence
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Refers to the commission or omission of an act, pursuant to a duty, that a reasonably person in

the same or similar circumstance would or would not do, and acting or the non-acting of which is

the proximate cause of injury to another person or his property.

Elements of Professional Negligence

Existence of a duty on the part of the person charged to use due care under circumstances.

Failure to meet the standard of due care.

The foreseeability of harm resulting from failure to meet standard.

The fact that the breach of this standard resulted in an injury to the plaintiff.

Specific Examples of Negligence

1. Failure to report observations to attending physicians.

2. Failure to exercise the degree of diligence which the circumstances of the particular casedemands.

3. Mistaken identity.

4. Wrong medicine, wrong concentration, wrong route, wrong dose.

5. Defects in equipments that may result in injuring the patients.

6. Errors due to family assistance.

7. Administration of medicine without a doctor prescription.

The Doctrine of Res Ipsa Loquitor

1. The thing speaks for itself.

2. It means that the nature of the wrongful act or injury is suggestive of negligence

3. Three conditions are required to establish a defendants negligence without proving specific

conduct.

That the injury was of such nature that it would not normally occur unless there was a

negligent act on the part of someone.

That the injury was caused by an agency within the control of the defendant

That the plaintiff himself did not engage in any manner that would tend to bring about the

injury.

Malpractice

you do things beyond your scope of practice

also denotes stepping beyond ones authority with serious consequences.


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Doctrine of Force Majeure

It means an irresistible force, one that is unforeseen or inevitable.

you cannot stop it from happening circumstances such as floods, fire, earthquakes and accidents fall under this doctrine

Doctrine of Respondeat Superior

let the master answer for the acts of the subordinate

the liability is expanded to include the masteras well as the employee and not a shift of

liability from the subordinate to the master

this doctrine applies only to those actions performed by the employee within the scope of

his employment

Incompetence

is the lack of ability, legal qualifications or fitness to discharge the required duty.

Although a nurse is registered, if in the performance of her duty she manifests

incompetency, there is ground for revocation or suspension of her certificates of

registration.

Liability of Nurses for the Work of Nursing Aides

Nursing aides perform selected nursing activities under the direct supervision of nurses.

Nurses should not delegate their functions to nursing aides since the Philippine Nursing Act

specifies the scope of nursing practice of professional nurses.

If a nurse delegates, he is responsible.

Liability for the Work of Nursing Students

Under the Philippine Nursing Act of 2002, nursing students do not perform professional

nursing duties.

They are to be supervised by their Clinical Instructors.

Assumption of Risk

A nurse cannot bring suit against the patient if she gets hurt or contacts the disease since

upon accepting the case, the nurse agreed to assume the risk of harm or infection.


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Consent

Is defined as a free and rational act that presupposes knowledge of the thing which

consent is being given by a person who is legally capable to give consent. It is the NURSE who actually secures the consent of the patient upon admission.

Informed Consent

it is established principle of law that every human being of adult years and sound mind has

the right to determine what shall be done with his on body

Essential elements of Informed Consent

1. Diagnosis and explanation of the condition

2. A fair explanation of the procedures to be done and used and the consequences3. A description of alternative treatment or procedures

4. A description of benefits to be expected

5. Material rights if any

6. The prognosis, if the recommended care, procedure, is refused.

Proof of Consent

A written consent should be signed to show that the procedure is the one consented to and

that the person understands the nature of procedure A signed special consent is necessary before any medical or surgical treatment is don such

as x-rays etc.

Who Must Consent

Normally the patient himself is the one who gives the consent,

If he is incompetent (minors or mentally ill) or physically unable, consent must be taken from

another who is authorized to give it in his behalf.

Consent of Minors

Parents, or someone standing in their behalf

Ifemancipated minorconsent is signed by them.


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Consent of Mentally Ill

They cannot legally give consent. Parents or guardians.

Emergency Situation

When an emergency situation exists, no consent is necessary because inaction at such

time may cause greater injury.

Refusal to Consent

Patients other than those who are incompetent to give consent can refuse consent.

If refuses to sign, this should be noted in his chart

Consent for Sterilization

Is the termination of the ability to produce offspring.

The husband and wife must consent to the procedure if the operation is primarily to

accomplish sterilization.

If its medically necessary or an incidental result, the patient alone is sufficient.

Medical Records

As a record of illness and treatment, it saves duplication in future cases and aids in prompt

treatment

It serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or

condition of patient and its management.

If it was not charted, it was not observed or done.

Nurses have the responsibility of keeping the patients right to confidentiality.

Permission has to be taken from the Medical Records Division of the Hospital.

Intentional Wrongs

nurse may be held liable for intentional wrongs

Torts

is a legal wrong, committed against a person or property, independent of a contract which

renders the person who commits it liable for damages in a civil action.


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The person who has been wronged seeks compensation for injury or wrong he has suffered

Examples of Torts are:

1. Assault and Battery

Assaultis the imminent threat of harmful or offensive bodily contact; banta Batteryis an intentional, unconsented touching of another person.

1. False Imprisonment or Illegal Detention

Unjustifiable detention of a person without legal warrantwithin the boundaries fixed by the

defendant by an act or violation of duty intended to result in such confinement

1. Invasion of Right to Privacy and Breach of Confidentiality.

The right to privacy is the right to be left alone, the right to be free from unwarranted

publicity and exposure to public view

1. Defamation

Character assassination, be in written or spoken

Slanderis oral defamation of a person by speaking unprivileged or false words by which his

reputation is damaged.

Libelis defamation by written words, cartoons or such representations that cause a person

to be avoided, ridiculed or held in contempt or tend to injure him in his work.

The Law of Nursing MalpracticeBy Mark A. Abramson and Kevin F. Dugan

I. Introduction:

Nearly twelve years ago, Erline A. Reilly wrote that "most New Hampshire attorneysknow nothing about nursing law."1 As a lawyer and a registered nurse, Attorney Reilly had aunique insight into this issue. Hopefully, this article will update us all and provide theappropriate framework for the analysis of potential nursing malpractice cases.

Attorney Reilly's 1984 article examined a wide variety of legal issues relevant to thenursing profession. This article will focus specifically on the concept of nursing malpractice. Asattitudes toward the nursing profession have evolved over recent years, so too has the law.Nurses are increasingly being named as defendants in medical negligence cases. New Hampshirepractitioners need to be aware of the relevant developments in the area of nursing malpractice.

This article analyzes the current state of the law with particular emphasis on liabilityissues and the practical problems relating to the representation of nurses. With respect toliability, areas covered are the appropriate standard of care applicable to nurses, how and bywhom the standard of care must be established, examples of nursing negligence, and uniquecausation issues arising from nursing negligence. The separate issue of legal representation isthen analyzed in the context of conflicts arising from common representation of the nurse and hisor her employer.


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During the past three decades, courts have shifted the standard applied to cases of nurseliability. Early decisions held nurses to a standard of common negligence. More recent decisions,recognizing nurses' increased responsibilities in the modern hospital setting, hold nurses to astandard of professional malpractice.

II. Background:

In 1964, the Kansas Supreme Court stated that the primary function of a nurse "is toobserve and record the symptoms and reactions of patients."2 Thus, "[a] nurse is not permitted toexercise judgment in diagnosing or treating any symptoms which the patient develops."3 Inaccord with this view, the court held that when a nurse fails to exercise due care in the treatmentof a patient, the proper cause of action was one of ordinary negligence rather than malpractice.4

Only two decades later, the New York Court of Appeals recognized a more modern viewof nursing practice and rejected the "ordinary negligence" standard.

While courts have in the past held that a nurse could be liable for negligence, but not formalpractice, "the role of the registered nurse has changed, in the last few decades, fromthat of a passive, servile employee to that of an assertive, decisive health care provider.Today, the professional nurse monitors complex physiological data, operatessophisticated lifesaving equipment, and coordinates the delivery of a myriad of patientservices."

In recognition of the modern scope of nursing practice, the court held that a nurse may beheld liable for malpractice.

In New Hampshire, nurses are explicitly within the scope of the medical injury statute.Asa result, virtually any negligent act or omission committed by a nurse in the course of renderingprofessional services is considered malpractice.

In order to prove a case of nursing malpractice under the New Hampshire medical injurystatute the plaintiff must establish through expert testimony the applicable standard of care, afailure to act in accordance with the standard of care, and legal causation of a medical injury11.

III. Nursing Malpractice

A. Standard of CareThe New Hampshire medical injury statute defines the standard of care applicable to

nurses as the standard of reasonable professional practice in existence at the time the medicalcare in question was rendered. If the nurse is a specialist, the nurse's conduct must be comparedwith the reasonable practice of a similar specialist.

In 1971, New Hampshire abandoned the idea of restricting the standard of care to aspecific geographic area or locality. Prior to this, the "locality rule" required the plaintiff toestablish, for example, "the standard of care for . . . nurses in the community of Manchester, NewHampshire."Under R.S.A. 508:13, however, a national standard of care controls.

The standard of care applicable to a nurse in New Hampshire, therefore, is that whichwas reasonably expected of a similarly situated nurse at the time of the negligent conductwithout regard for the peculiarities of local practice.


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In most cases the relevant standard of care is determined with reference to the specificfacts of the case.Understandably, courts have been hesitant to establish overriding principles ofappropriate nursing conduct.

One example of a rule of general application which has been hotly debated involves thenurse's "advocacy role." The issue is whether a nurse has a duty to take action when she

disagrees with a physician's order.Early on, it was understood that a nurse could not use independent judgment and that she

was only to observe the patient and report to the physician. 18 This attitude was reflected in the1962 case of Carrigan v. Sacred Heart Hospital, when the New Hampshire Supreme Court heldthat, under the circumstances presented, the hospital nurses were not required to disregard aphysician's orders or seek to have them changed.

However, as the courts began to recognize the true extent of the nurse's involvement inpatient care, it became widely accepted that the exercise of independent judgment should not bediscouraged. Recently, the Ohio Supreme Court addressed the issue:

A nurse who concludes that an attending physician has misdiagnosed a condition or hasnot prescribed the appropriate course of treatment may not modify the course set by thephysician simply because the nurse holds a different view.

However, the nurse is not prohibited from calling on or consulting with nurse supervisorsor with other physicians on the hospital staff concerning those matters, and when thepatient's condition reasonably requires it the nurse has a duty to do those tasks when theyare within the ordinary care and skill required by the relevant standard of conduct.

Since there was expert testimony in the record showing that the nurse should have taken action tooverride the physician's orders, a jury question was created.

Similarly, in a South Dakota case, both the plaintiff's and the defendant's experts agreedthat a nurse has a duty "to communicate changes in the patient's condition to the physician and'go further' if her concerns are not sufficiently or appropriately answered by the physician." The

jury was therefore entitled to impose liability based on the nurses' failure to do so.

The foregoing demonstrates the difficulties inherent in devising a rule of generalapplication in nursing malpractice cases. The former understanding that a nurse must follow adoctor's orders without employing independent judgment has been rejected in favor of a morerealistic approach. The jury is now permitted to decide whether the standard of care required thenurse to seek to override the physician's orders. The peculiarities of each particular case drive theinquiry.

B. Necessity of Expert TestimonyExpert testimony is required to establish the appropriate standard of care. Such testimony

may be provided by a registered nurse with relevant experience a nurse who holds a teachingposition, or even a physician with appropriate qualifications. In fact, defendant physiciansfrequently provide invaluable testimony on the nurse's standard of care as they attempt to deflectblame from themselves.

In Carrigan, the Supreme Court addressed the competency of the plaintiff's expertwitness. In that case, the plaintiff's expert was the decedent's daughter who was employed as anurse by the defendant hospital. She testified that the failure to place side boards on the patient'sbed did not conform to the standard of care. The Supreme Court held that this testimony wasinsufficient to establish the standard of care because the opinion did not take into account the fact


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that the bedrails had been removed by doctor's order. Since the daughter did not testify thatbedrails are required in all cases no matter what the attending physician had ordered, the issue ofnursing malpractice was properly taken from the jury.

C. Breach of Standard of CareThe articulation of the standard of care establishes the breach. For example, when you

present expert testimony that the standard of care requires that a nurse observe a post-operativepatient at least every fifteen minutes for the first hour, you already know that the nurse failed todo so. As a general matter, therefore, there is no meaningful distinction between proving thestandard of care and proving a breach.

Acts or omissions constituting a breach of the nursing standard of care have been foundin numerous situations. Because few concrete rules can be found, some random examples may behelpful.

In Little Rock, Arkansas, a nurse was found to have breached the standard of care in anoutpatient hemodialysis facility when she purposefully left the dialysis needles in the patient'sarm after treatment and called him a "black son of a bitch."Although the patient's repeateddisruptive and abusive conduct placed him 40% at fault, the nurse's behavior "did not conform to

the high standards we necessarily expect of those in the nursing profession. Under extremeprovocation, she engaged in language and conduct unacceptable in a highly trained profession."

Another combative relationship resulted in malpractice liability for a Kansas nurse. Inthat case, a husband with concerns about his wife's labor repeatedly attempted to get the nurse tocall a doctor. Apparently engrossed in a magazine article, the nurse on several occasions refusedto do anything saying that she was in charge and she would decide what was necessary. Whendelivery began, the nurse acted too late and had to deliver the baby herself with the help of adoctor who happened to be walking by. A jury verdict against the nurse was upheld on appealwith the court noting that the jury could properly take into account the "antagonistic verbalexchange" between the nurse and the husband.

Other less extreme examples of nursing malpractice include the failure to take vital signsof post-operative patient often enough36, the failure to delay a patient's discharge when thepatient had an elevated temperature37, the failure to recognize signs of neonatal hypoglycemia38,the failure to properly monitor the patient's blood sugar level, and the failure to summonadditional assistance to help a post-operative patient from the bathroom back to her bed.

D. CausationAlthough nursing malpractice cases involve the same difficult proximate cause issues as

other medical negligence cases, there are also unique problems which arise. A line of Ohio casesis illustrative.

In 1990, the Ohio Supreme Court addressed the causation issue in the context of a nurse'sfailure to keep the attending physician sufficiently informed of the patient's condition. In such a

case, even assuming a breach of the standard of care, the plaintiff "must prove that, had the nurseinformed the attending physician of the patient's condition at the proper time, the physicianwould have altered his diagnosis or treatment and prevented the injury to the patient." Thus,when the attending physician testified that she would not have arrived any sooner if she had beennotified of the patient's condition, any breach on the part of the nurse was not causal.

Three years later the Ohio court addressed the causation issue from a slightly differentviewpoint. The court had previously held that there are certain instances in which the duties ofthe nurses and the duties of the physician could be found to overlap. Thus each had a legal duty


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to recognize the patient's pregnancy complications. Since the physician had already stipulated tobeing negligent in failing to do so and to the causality of his negligence, the defendant hospitalargued that any negligence on the part of its nurses could not possibly be causal. The courtdisagreed holding that the intervening negligence of an attending physician does not absolve ahospital of its prior negligence if both co-operated in proximately causing an injury to the patientand no break occurred in the chain of causation between the hospital's negligence and theresulting injury. In order to break the chain, the intervening negligence of the physician must bedisconnected from the negligence of the hospital and must be of itself an efficient, independent,and self-producing cause of the patient's injury.

Several months later, the Ohio Court of Appeals had an opportunity to apply both of theSupreme Court's causation decisions in a case involving nurses' failure to chart circulationchecks. Because the defendant physicians testified that they would not have altered theirdiagnoses or treatment even if the checks had been documented, the Supreme Court's 1990decision would require summary judgment in favor of the nurses. Consequently, the plaintiffsrelied on expert testimony establishing that a reasonably prudent physician would have alteredhis diagnosis or treatment if the nurses had properly charted the checks.

The court analyzed the causation issue with reference to the Supreme Court's 1993opinion to decide whether the doctors' negligence was "an efficient, independent and self-producing cause of the plaintiff's injury" sufficient to break the chain of causation. The nurses'alleged negligent acts all occurred before 3:50 p.m. on January 24, 1988. Dr. Boll and Dr.Hickman committed negligent acts not only on that day, but also during the next two days whendespite the absence of negligence by others, they failed to properly diagnose and timely treat[plaintiff's] further developing compartment syndrome. The physicians' continued acts ofnegligence operated to break the chain of causation between the nurses' acts and [plaintiff's]injuries. After 3:50 p.m., the nurses committed no negligent acts co-operating with thephysicians' negligent acts.

IV. Practical Issues

As nurses increasingly find themselves named as individual defendants in medicalmalpractice cases, issues related to legal representation arise. Hospital nurses covered under theliability policy of their employer find themselves represented by an attorney whose client isactually the hospital. The potential for an impermissible conflict of interest is manifest underthese circumstances since the interests of the nurse are often quite different from those of thehospital.

Separate legal representation is required if the representation of one client will have anadverse effect on the representation of another. The divided loyalties of hospital counsel presentsuch a situation. Nurses need personal counsel to protect their individual interests.

For example, discovery issues, including possible assertions of privilege, may be veryimportant to the nurse personally but not very important to the hospital. In addition, situations

may arise where the hospital's trial strategy reflects poorly on an individual nurse who feelsstrongly that she was not at fault. Or a nurse may be very interested in settling a claim to avoidpersonal exposure while the hospital would prefer to try the case. As is mentioned above, aphysician will often blame the nursing staff for a medical injury. When the physician is anemployee of the hospital or may be considered an agent whose negligence will be legallyimputed to the hospital, the interests of the nurses are frequently sacrificed.

The mere possibility of divided loyalty should raise the question whether commonrepresentation is permissible. There is little doubt that conflicting interests among defendants in


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medical negligence cases are a very real problem. The nurse's interests would be better protectedby personal counsel in nearly every case.

V. Conclusion

As with most forms of medical negligence, you will often know nursing malpracticewhen you see it. However, to see it, you must be looking for it. The foregoing is intended to alert

the practitioner to the basic issues involved so that medical injury cases may be properlyevaluated and prepared.

Reference: http://www.arbd.com/the-law-of-nursing-malpractice

Nursing Legal Issues

Representation If Sued

As their professional roles expand, nurses are naturally becoming more vulnerable to thetypes of lawsuits that have plagued physicians for years. Malpractice is the legal term fornegligence by any licensed professional. Case law began recognizing nurses as professionals inthe mid-1970s, and has lately come to see registered nurses as "assertive, decisive healthcareproviders," according to a 1985 New York appellate court opinion."[Nurseweek, May, 2000]

With the exception of advanced practice nurses in private practice, andthe ever growing ranks of nurse entrepreneurs, most nurses continue tofunction as employees. While it has generally been the accepted practiceof nurses to be covered under the umbrella policy of their employer this givesrise to potential conflicts of interest and may not be in the best interests

of the nurses.As nurses increasingly find themselves named as individual defendants in

medical malpractice cases, issues related to legal representation arise.Hospital nurses covered under the liability policy of their employer find themselves representedby an attorney whose client is actually the hospital.The potential for an impermissible conflict of interest is manifest under thesecircumstances since the interests of the nurse are often quite different fromthose of the hospital.

Separate legal representation is required if the representation of one clientwill have an adverse effect on the representation of another. The dividedloyalties of hospital counsel present such a situation. Nurses need personal

counsel to protect their individual interests.For example, discovery issues, including possible assertions of privilege,

may be very important to the nurse personally but not very important tothe hospital. In addition, situations may arise where the hospital's trialstrategy reflects poorly on an individual nurse who feels strongly that shewas not at fault. Or a nurse may be very interested in settling a claim toavoid personal exposure while the hospital would prefer to try the case.
http://www.arbd.com/the-law-of-nursing-malpracticehttp://www.arbd.com/the-law-of-nursing-malpractice


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As is mentioned above, a physician will often blame the nursing staff for amedical injury. When the physician is an employee of the hospital or may beconsidered an agent whose negligence will be legally imputed to the hospital,the interests of the nurses are frequently sacrificed.

The mere possibility of divided loyalty should raise the question whether

common representation is permissible. There is little doubt that conflictinginterests among defendants in medical negligence cases are a very real problem. The nurse'sinterests would be better protected by personal counsel in nearly every case.

Providing excellent nursing care may not prevent you from being namedin a malpracticesuit, but having the sense to carry your own individual professional liability insurance policy willcertainly help relieve worries about adequate representation as well as help protect your bestinterests!

Reference: http://www.medi-smart.com/nursing-articles/nursing-law/nursing-

representation-if-sued?page=2

Ethical and Legal Issues in Nursing

When to contact the Nursing Supervisor (NS)

1. A nurse questions an order but the Physician can not be located, the nurse should thenCONTACT the NURSING SUPERVISOR. Under no circumstances should the nursecarry out the order without clarification.

2. Under the Nurse Practice Acts, impaired nurses on the job should be reported to theNursing Supervisor. The NS will then report it to the Board of Nursing or Police asrequired. Security should only be called if a disturbance occur.

3. Nurses can not be a witness to a living will/advance directives (Patient Self-Determination Act). Ask the NS to seek assistance for the client (usually a clinical socialworker).

4. Report all sexual harassments to NS immediately.

Examples of legal torts:

1. Invasion of Privacy example: a nursing student observing a procedure without the client'sconsent or taking photos of the client.

2. False imprisonment example is telling the client that he/she may not leave the hospital orthe use of restraints.

3. Battery example: performing procedure without consent such as resuscitation.

4. Do not resuscitate (DNR) should be reviewed every 3 days for hosptialized clients andevery 60 days for residential clients.

5. when the word threatens is in the question= it's assault

6. Defamation (Slander): something untrue was said to ruin the reputation of a person.

7. Defamation (Libel): something untrue was written to ruin the reputation of a person.
http://www.medi-smart.com/nursing-articles/nursing-law/nursing-representation-if-sued?page=2http://www.medi-smart.com/nursing-articles/nursing-law/nursing-representation-if-sued?page=2http://www.medi-smart.com/nursing-articles/nursing-law/nursing-representation-if-sued?page=2http://www.medi-smart.com/nursing-articles/nursing-law/nursing-representation-if-sued?page=2


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INFORMED CONSENT:

1. IN ONLY TWO INSTANCES where the INFORMED CONSENT is not needed:emergency (where the client's life is endanger) and when the client waives the right togive informed consent.

2. A client under medications that affects their cognition, should not be asked to sign a

consent. Legally the client must be emotionally and mentally competent to sign consent.

3. a nurse can witness the client signing the informed consent.

4. Mentally or Emotionally INcompetent Clients: declared imcompetent, unconcious,under the influence of alcohol/drugs, chronic dementia or other mental deficiency

REPORTING

1. The nurse must report situations of child/elderly abuse, gunshot wounds, suicides,and infectious diseases to the proper personnel.

OTHERS

1. Jehovah's Witness: may accept an organ transplant but the organ must be cleansed with a

nonblood solution.When giving medication to the client, think of the 5 rights C.T.D.M.R. right Client, right Time,

right Dosage, right Medication, right Route (i think of the mneumonic as Connecticut (CT) Dept

of Mental Retardation (DMR)....formally known..now it is CT Dept of Social Services (DSS))

Reference: http://www.ehow.com/info_8245142_legal-issues-nurse-

documentation.html

Legal Issues in Nurse Documentation

By Helen Messina, eHow Contributor

Nursing documentation must be conscientious, professional, truthful and precise to

avoid liability.

Nursing documentation frequently reflects the most crucial parts of the medical record. If it ismeticulous, appropriate and truthful, it supports quality medical care. It can also contradictinformation found elsewhere in the chart when questions of malpractice or negligence arise. Nursing documentation, whether in a hospital, clinic or physician's office, symbolizes acontinuous accounting of signs, symptoms, complaints and the patient's response to physician'sorders, treatments and interventions.

1. Nursing Documentation

Historically, the responsibility for medical care was strictly allotted to physicians.

That is no longer the case as the public has become more aware of nursing's rolein health care. Nurses are required to do more than simply follow physicians'orders. Nursing responsibilities include patient advocacy, even when the role isadversarial to the physician. Documentation begins the moment the patient arrivesat the hospital, clinic or unit and continues until discharge. Documents include acomplete nursing assessment, a nursing care plan, which outlines health careneeds and goals, nursing interventions and responses and discharge instructions.


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Nursing documentation furnishes a vital aspect to the continuity of medical caregiven over a specific period of time.

Legal Issues

State and federal legislation and statutes set the foundations for legal nursing

documentation. Each state's Department of Health and Board of Nursing also setstandards. Nursing practice standards and guidelines help formulate the scope ofnursing practice and the level of responsibility the nurse is held to in a legalaction. Legal claims against a nurse require evidence of a nurse-patientrelationship, which confirms a duty to the patient. Additionally, proof is requiredthat the nurse deviated from accepted practice in her duties and that the patientwas injured as a result of the deviation.

Documentation Guidelines

Whether documentation is computer-based or handwritten, the requirements

remain the same. Clear and concise documentation, finished within an appropriate

time frame and based on first-person observations, reflects responsibleprofessional judgment. Nursing documentation includes the facility's choice offorms and adherence to procedures and policies set by the facility. When legalissues arise, the nursing documentation becomes a central part of proving whetherstandards of care were met or not.

Medication Errors

Legal issues in nursing documentation regarding medication records and

medication errors are common. When the wrong drug is administered, the wrongdose is given or the wrong mode of administration is used, a medication error hasoccurred that can have serious consequences for both the patient and the nurse.

The failure of the nurse to monitor the patient for an appropriate response tomedication, side effects or toxicity can result in harm to the patient. Following thephysician's orders does not protect the nurse from legal action if or when thepatient is harmed. It is the nurse's responsibility to provide a safe environment forher patient.

Reference: http://www.ehow.com/info_8245142_legal-issues-

nursedocumentation.html#ixzz1NSiKVnvg