Transcript DEBBIE Harrison, RN, JD - Home

ORGANIZATIONAL AND
VICARIOUS LIABILITY
DEBBIE HARRISON, RN, JD
HEALTHCARE CONSULTING, LLC.
(337) 962-0212
[email protected]
Vicarious Liability
 Vicarious liability is a legal doctrine that
assigns liability for an injury to a person who
did not cause the injury but who has a
particular legal relationship to the person
who did act negligently.
Vicarious Liability, Cont’d
 Responsibility for a civil wrong that a supervisor
bears when a subordinate or associate has actually
committed the act that gives rise to the liability
Example:
 The owner of a hospice agency may be vicariously
liable for a nurse’s actions or inactions, or their
failure to comply with legal or professional
standards
Organizational and Vicarious Liability
 Organizations may be liable for employees individual
failures to comply with legal and ethical
responsibilities.
 Potential areas of liability:
Theft
 Breach of confidentiality
 Breach of Standards of Care
 Financial Abuse
 Taking advantage or preying on their position

CASE STUDY
ADVANCE for NURSES, Sept. 30, 2009
 An elderly female assisted-living facility resident
requires a mechanical-transfer device from bed to
wheelchair and back. She is maximum assist with
bed mobility. She has episodic confusion.
 After the evening meal, a certified nursing
assistant (CNA) returns the resident to her room.
The CNA transfers the resident to the bed by
himself using the mechanical-transfer device. The
resident is already in the bed when another CNA
arrives to aid with turning, positioning and
incontinence care.
CASE STUDY, Cont’d
 The resident weighs approximately 190 pounds and is
unable to assist with turning and positioning. She is in
a hospital bed with enabler bars in permanent upright
position; there are no side rails. Both CNAs stand on
the same side of the bed. They roll the resident over for
incontinent care and she falls off the bed onto the
floor, pinning her between the wall and the bed, and
she cries out in pain.
 One CNA notifies the nurse on call and is ordered to
call 911. At the hospital, X-rays reveal a fractured
cervical spine. The patient is treated conservatively
with immobilization. While hospitalized, she becomes
febrile with pneumonia. She becomes septic and dies.
The assisted-living facility is sued.
CASE STUDY, Cont’d
Standard of Care
 The standard of care is defined by what a prudent
professional would do in a similar situation. Facility
policies and procedures, professional resources and
literature, clinical practice and other sources provide
the basis for standard of care. Federal or state
regulations, compliance and accreditation
organizations do not define standard of care.
CASE STUDY, Cont’d
 In this case, although the CNAs are not considered
professionals, the nurse supervisor, who was the only
nurse employed at the facility, must ensure their
treatment of the resident is consistent with the
standard of care. What's more, the nurse's
responsibility is not absolved just because she is not
in the building; she is vicariously liable for the acts of
the subordinate CNAs.
CASE STUDY, Cont’d
 There are a number of standard of care issues in this
case. First, the use of the mechanical-transfer device
requires two people. Standard of care dictates one
person is to stay with the resident or patient to
prevent falling or other safety problems while the
other manipulates the device. There also was a
question about where the resident was positioned in
bed, at either edge or in the middle, which would
make a difference to fall risk.
CASE STUDY, Cont’d
Supervision, Training & Competency
 If this case were hospital- or nursing home-based
with 24/7 licensed staff available, the situation
would be different. In settings with licensed nurses
on duty around the clock, the chain of supervision is
in place. Once report is finished, the oncoming
charge nurse assumes the supervisory responsibility.
The director of nursing in the nursing home and the
nurse manager, nursing supervisor or nurse
executive in the hospital, have a supervisory role
even though they're not at the bedside.
CASE STUDY, Cont’d
 Part of the responsibility of being a nurse manager is
ensuring staff training and competency levels are
consistent with the job description and with
standard of care. If staff members are not competent,
they should not be left unsupervised.
 Upon review of the facility's policies and procedures,
there was no documentation of training addressing
the use of the mechanical-transfer device, turning
and positioning related to special circumstances such
as residents who are obese, safety issues or falls.
CASE STUDY, Cont’d
 Because this facility had a history of residents falling,
one would have anticipated training concerning falls
would have been a high priority. Generic policies and
procedures are not adequate to address facility- or
resident-specific training for staff. When questioned,
the CNAs were unaware of mechanical-transfer
device operation expectations and did not
understand why their positioning at the bedside was
problematic when the fall occurred.
CASE STUDY, Cont’d
Falls Management & Prevention
 Rarely, if ever, will every employee embrace the
concepts of their training and execute each perfectly
every time. However, oversight of competence and
practice are part of the nurse supervisor's
responsibility. Of course, the acuity of the clients
served in different healthcare settings is not
comparable; however, all organizations in the
continuum are responsible for the safety of their
clients.
CASE STUDY, Cont’d
 Whether an accurate falls assessment was completed
or not, in this case, professional nursing judgment
would provide a high level of suspicion for this
resident to be a fall risk. The intermittent confusion,
the need for a mechanical transfer device,
incontinence and the level of transfer are often
considered to be indicators of fall risk. Although
professional nursing supervision was on-site 8 hours
a day, there was no fall-specific training for staff.
Moreover, there was no competency assessment of
new staff upon hire or episodically.
CASE STUDY, Cont’d
 This case was very difficult to defend because of the
core issues discussed. Falls and fall-related cases
frequently demonstrate a fact pattern, documentation
lapses, and policy and procedure voids similar to this
case.
 The entire continuum of healthcare faces fall risks, and
lessons learned from each segment are applicable to
the entirety. As a nurse supervisor, you are responsible
for the actions of the staff wherever you are. While this
vicarious liability may be disconcerting, it is part of the
professional nurse supervisor's role.
LAW
 L.A. C.C. Art. 2320
 Masters and employers are answerable for
the damage occasioned by their overseers, in
the exercise of the functions in which they
are employed.
“in the course of employment”
 For an act to be considered within the course
of employment it must either be authorized
or be so connected with an authorized act
that it can be considered a mode, though an
improper mode, of performing it.
AWARENESS
 Vicarious liability promotes the awareness of
administrators and supervisors, which can
improve efficiency in companies.
 Further, administrators and supervisors are in the
best position to assess, monitor and impose
standards on their employees as needed.
PROTECTING YOUR CLIENTS
 PRESENCE
Be available and present in your organization (or
shift). This demonstrates your availability and
authority.
 RESPONSIBILITY
Reward good performance and address poor
judgment quickly.

Allowing employees actions to go unnoticed will not
benefit anyone
TRAINING
 The need to train employees as to…
• Mandatory reporting of abuse
▫ Not only to employer, also authorities…
▫ Duty to report does not end by telling a
manager
• Medical/Nursing Ethics
• Confidentiality for professionalism and HIPAA
 Employees should know what to look for in any of
the above cases.
BACKGROUND CHECKS
 CHECK CRIMINAL RECORDS
 Actually follow up with past employers
 There may be evidence in your potential employee’s
past to indicate poor judgment or weak (or worse)
character.
 Take steps to contact previous employers. Their first
hand experience with your prospective employee
may be invaluable. ASK “ Would you rehire this
employee?”
KNOW YOUR EMPLOYEES
 As an organization you are trusting the “good will” of
your company to individuals. You have a
responsibility to your client, employees and company
to take steps to ensure they are all in good hands.
 Employees deal with sensitive information; and in
the case of elders, they deal with vulnerable
individuals, you should ensure these employees are
the best suited and trained, for the position and
responsibility; as well as worthy of your trust and
that of our vulnerable elders.
FINALLY
EFFECTIVE SUPERVISION
AND MANAGEMENT
are strong tools to assure the best care for
your clients and the most favorable outcome
for your profession and your organization.