| Not so long ago, the distinction between nurses and physicians was pretty clear: Physicians took care of the medicine, nurses took care of the patient. Today, as nurses take on more of the physician’s medical duties, they are increasingly exposed to a physician’s greatest fear – the malpractice lawsuit.”Clearly, there has been a marked increase” in malpractice suits naming nurses as defendants, said William McDonough, senior vice president for health care at Boston-based Marsh Inc., the world’s biggest insurance brokerage firm. McDonough estimates that the number of malpractice lawsuits naming nurses as defendants has risen 10 percent nationally since 1995.That number may be low, especially where highly skilled nurses are concerned. A study of nurse-malpractice lawsuits in Harvard University medical institutions found that claims against nurse practitioners jumped 16 percent between 1984 and 1992.Insurance experts mostly blame the increase on overzealous lawyers lured by substantial jury awards. Lawyers blame managed care for axing hospital staffs and increasing patient loads – leading to more mistakes. But all sides agree the primary reason more nurses are getting sued is, ironically, that they are more skilled than ever before.”Patients expect more of nurses, so when something goes wrong there’s less hesitation to blame them,” said Marc Mandell, a Norwich, Conn., lawyer who specializes in nursing risk management.More vulnerableAs their professional roles expand, nurses are naturally becoming more vulnerable to the types of lawsuits that have plagued physicians for years. Malpractice is the legal term for negligence by any licensed professional. Case law began recognizing nurses as professionals in the mid-1970s, and has lately come to see registered nurses as “assertive, decisive healthcare providers,” according to a 1985 New York appellate court opinion.”Unlike a generation ago, jurors are more likely to agree that if something goes wrong, the nurse should have picked it up just like a doctor,” Mandell said.The financial cost of malpractice is covered by most employers’ insurance policies, and few experts suggest nurses need their own malpractice insurance. But if malpractice is claimed, the cost to a nurse’s career can be staggering. Even if the nurse is a so-called “tag-along” defendant and not the primary focus of the lawsuit, once money is exchanged through an out-of-court settlement or jury award, the nurse’s name is automatically reported to the state Board of Nurse Examiners, to insurers and to the federal government’s National Practitioners Databank.State nursing boards are increasingly likely to suspend or discipline nurses who are found guilty in malpractice suits. Even if the board is lenient, employers may not be. Nurses are required to report their involvement in a malpractice suit to each of their employers for the rest of their professional careers.”The patient isn’t the only victim in a malpractice case,” said Tom Packer, a San Francisco lawyer who specializes in defending nurses in liability cases. “The emotional and professional effect on nurses can be devastating because it’s forever on their record that one of their patients was paid money after they alleged malpractice, even if they only got one dollar.”Guides for protectionNot all the news is bad, though. Thankfully, there are clear guidelines for protecting yourself from a malpractice suit.Nursing malpractice occurs only under two conditions: You make a mistake that can be proved to have harmed a patient, and the mistake is one that a reasonably careful nurse wouldn’t have made in a similar situation. The law doesn’t require you to provide the best or safest care humanly possible – only to meet a reasonable standard.In court, that standard is your state’s Nurse Practice Act. So it follows that the primary way to prevent a malpractice lawsuit from being filed is to know the law.”A nurse absolutely has to be familiar with the Nurse Practice Act, so if she’s asked to do something out of bounds, she knows to refuse it,” said Elizabeth Higginbotham, RN, an Austin plaintiff’s lawyer and president of The American Association of Nurse Attorneys (TAANA), Texas chapter, who leads workshops on avoiding malpractice suits for both nurses and hospital administrators.Many times, Higginbotham said, employers will put nurses in a catch-22 situation where they must choose between compromising their license and keeping their job. A long-term care facility, for instance, may have a policy that requires RNs to let unlicensed personnel hang IVs, even if the state’s Nurse Practice Act requires an RN to do the job. If something goes wrong and a lawsuit is filed, it’s the nurse who will be held responsible.Similarly, a nurse who notifies a physician that a patient is in trouble is legally responsible for that patient even if the physician makes no response.”You can’t just drop the ball,” Higginbotham said. “You’ve got to go over (the physician’s) head and find somebody who’s going to give you orders to take care of that patient. Otherwise, you might find yourself in my office.”Many state nursing boards make available guidelines that outline a step-by-step process for determining which duties are outside a nurse’s scope of practice. Most can be printed from the Internet free of charge.Documentation is keyAnother way to prevent malpractice suits is to scrupulously document everything from disagreements with the physician to a patient’s noncompliance with medications. “Nobody’s going to protect you but yourself,” attorney Mandell said. “And the best way to protect yourself is to document everything and to do it contemporaneously, not after the fact.”Adding to the medical record after a lawsuit has been threatened is one of the most common and costly mistakes a nurse can make, added Monica Mooney, RN, a San Francisco defense lawyer and president of TAANA’s California chapter. “As a defense attorney, that is one of the last things you want to see. Any time you alter the medical record after the fact your liability is huge because it ruins your credibility and the jury’s not likely to believe anything else you say.”Ideally, chart entries should be made at the time of an assessment or intervention and no later than shortly afterward. If you make a mistake in the record, draw a line through it, write “mistaken entry,” include the correct information, and initial the changes. Never erase or obscure the record. Document forensics experts are commonly employed by attorneys to uncover such glaring indicators of error.While other prevention tactics are advisable, perhaps the best technique to prevent a malpractice suit from being filed is the one that comes most natural to nurses. Being kind.”Politeness is the best cure against malpractice,” Mandell said. “If the patient likes you and you’ve been kind to that patient you decrease your odds of being sued immensely.” |
| Avoiding Your Day in Court1. Know the law. Your state’s Nurse Practice Act is the standard by which your professional behavior will be judged in any potential malpractice case. If it can be conclusively shown that you acted in accordance with the law, the case will likely be dismissed before it goes to trial.2. Document everything. It takes a written record to prove you acted in accordance with the accepted standards of practice. Good charting is a primary defense against liability in a malpractice suit. Include in the record your assessments; evaluations of how treatments or interventions worked; patient noncompliance, if any; and any communication with the physician regarding these items, especially signs of patient distress. Include witnesses to any conversations. Never document care before you deliver it or add to the record after a significant amount of time has passed. And especially never alter the record after the fact.3. Refrain from making negative comments. Never enter into the medical record negative comments about a patient (aside from clear noncompliance). For instance, avoid mentioning a patient’s weight, odor, or personality. Plaintiff’s attorneys will use the comments to suggest you disliked the patient and were more likely to provide substandard care.4. Question authority. If a physician fails to act in the face of compelling evidence of patient distress, take the case to your supervisor. If your supervisor also fails to act and you still believe the patient is in danger, go over his or her head until the problem is resolved. Follow the chain of command, but be assertive. Avoiding confrontation may be the path of least resistance but it could cost you your license.5. Stay educated. A lawyer is less likely to sue a nurse who has kept up with her continuing education requirements than one who has let her training slip.6. Manage risks. Make sure that every patient who leaves the hospital against a physician’s advice completes a detailed consent form. If this is not your job, make it your job. Never be afraid to be a pest when you are protecting yourself.7. Don’t hurry through discharge. A patient’s health is still your responsibility after the patient leaves the facility, so don’t rush through the discharge notes. Attention to detail can save you from being accused of discharging a patient too early if problems develop after release.8. Be discreet. Never gossip about an incident or bad patient outcome with other nurses. Avoid casting blame. These words may come back to haunt you or other nurses in the courtroom. If you have a complaint, go through the proper channels.9. Use restraints wisely. Regard restraints with the same respect you do medications. A patient can just as easily sue you for inappropriate use of restraints as for a failure to restrain. So assess your patient carefully for risk of harm, and document everything.10. Be kind. Be kind. If the patient likes you, he or she is less likely to sue. Don’t get into arguments with patients. If a patient complains about something you’ve done, correct the problem without becoming defensive.~ Todd Stein |
