Transcript Nursing Legalities - Our Legal Nurse Consultants Home Page

Nursing Legalities
Marsha R. Anderson, RNC,CLNC
We prepare your most valuable
witness… the medical record!
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Business and Professions Code
• CA Nurse Practice Act
– Website: www.rn.ca.gov/regulations
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How To Avoid Malpractice Suits
• CA Nurse Practice Act
• Hospital Policies and Procedures
• NICU Specific Policies and
Procedures
• NICU Standards of Care
• Professional Organizations Code of
Ethics and Standards of Care
(ANA and NANN).
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How To Avoid Malpractice Suits
• ANA Code of Ethics Can be viewed on
their website but not downloaded – must
purchase. Their website is at
www.nursingworld.org
• NANN Code Of Ethics Can be viewed or
downloaded from website at
www.nann.org/about/content/ethics.html
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Department of Consumer Affairs
• Contains the CA State Board of Nursing
– 9 Members
– (4) Public Members
– (2) RN’s minimum of 5 yrs bedside experience
– (1) APN – currently active
– (1) RN administrator of nursing education program
– (1) RN administrator of nursing services with
minimum of 5 yrs experience
Serve 4 year terms – maximum of 2 terms
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2708.1 Priority of the Board;
Protection of the Public
• “Whenever the protection of the public is
inconsistent with other interests sought to be
promoted, the protection of the public
shall be paramount.”
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State Board of Nursing
Friend or Foe?
• Board’s Primary Goal is to protect the health,
safety, and welfare of its citizens.
• Therefore, public welfare is placed above the
interests of any individual nurse.
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State Board of Nursing
Friend or Foe?
• ANYONE can file a complaint with the state
board of nursing including patients, their
families, professional peers and nurse
managers, physicians.
• In most states, nurses have an opportunity to
respond to the complaint.
• The response should be brief and objective
(always consult an attorney before preparing
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the response,
can
be used against you).
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State Board of Nursing
Friend or Foe?
• Cases are investigated by the Attorney
General’s Office.
• Investigators contact all witnesses for
information and take their statements.
• If investigators feel confident that the state
can prove its case, charges are filed.
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State Board of Nursing
Friend or Foe?
• The Board’s power is limited to action against
nursing licenses, not to criminal or civil
penalties.
• However, if circumstances warrant, civil or
criminal charges could be filed additionally,
regardless of the board’s action.
• Board proceedings are less formal and
restrictive than a courtroom trial.
• Evidence that wouldn’t be admissible in court
might be admitted before the board.
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State Board of Nursing
Friend or Foe?
• Conclusion – The State Board of Nursing is
NOT in place to protect nurses, it is there to
protect the public.
NEVER talk to the board of nursing without
first consulting an attorney.
There are many attorneys that dedicate their
law practice to defending nurses against the
state board of nursing.
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2725 Legislative Intent;
Practice of Nursing Defined
A. It is the intent to recognize the existence of
overlapping functions between physicians and RN’s
and to permit additional sharing of functions.
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2725 Legislative Intent;
Practice of Nursing Defined
B. The practice of nursing includes basic health care.
It helps people cope with difficulties in daily living
that are associated with illness and that require a
substantial amount of scientific knowledge or
technical skill, including the following:
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2725 Legislative Intent;
Practice of Nursing Defined
1. Ensures the safety, comfort, personal hygiene,
and protection of patients; and the performance
of disease prevention and restorative measures.
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2725 Legislative Intent;
Practice of Nursing Defined
2. Includes the administration of medications and
therapeutic agents ordered by and within the scope
of licensure of a physician, dentist, podiatrist or
clinical psychologist.
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2725 Legislative Intent;
Practice of Nursing Defined
3. The performance of skin tests, immunization
techniques, and the withdrawal of human blood
from veins and arteries.
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2725 Legislative Intent;
Practice of Nursing Defined
4. Observation of signs and symptoms of illness,
reactions to treatment, general behavior, or general
physical condition, and determination of whether
patient the exhibits abnormal characteristics. (Assess
and Evaluate)
5.
Based on observed abnormalities, determine to
change the plan of care based on standardized policies
and procedures or to escalate to the appropriate
person, for new orders. (Plan and Implement)
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2727.5 Liability for Emergency
Care
• A person licensed under this chapter who in
good faith renders emergency care at the
scene of an emergency which occurs outside
both the place and the course of that person’s
employment shall not be liable for any civil
damages as the result of acts or omissions by
that person in rendering the emergency care.
• This section shall NOT grant immunity from
civil damages when the person is grossly
negligent.
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2759 Scope of Discipline
• Suspend Judgment
• Place on Probation
• Suspend the right to practice nursing for a
period not to exceed one year.
• Revoke the license
• Take other action as the board may deem
proper.
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2761 Grounds For Action
• Unprofessional Conduct
a. Incompetence or Gross Negligence.
b. Conviction of practicing medicine without a license.
c. Denial of licensure, revocation, suspension, or
restriction against a health care professional’s
license by another state.
d. Drug-related transgressions
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2761 Grounds For Action
• Procuring your certificate or license by fraud.
• Offering to assist at a criminal abortion.
• Making any false statement in connection with the
application for issuance of a certificate or license.
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2761 Grounds For Action
• Conviction of a felony or of any offense substantially
related to the qualifications, functions, and duties of an
RN.
• Impersonating any applicant or acting as a proxy for an
applicant in any examination required for the issuance
of a certificate or license.
• Impersonating another certified or licensed practitioner.
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2761 Grounds For Action
• Holding oneself out to the public or to any practitioner
of the healing arts as a “nurse practitioner”.
• Except for good cause, the knowing failure to protect
patients by failing to follow infection control guideline of
the board.
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2762 Drug Related Transgressions
• Obtain or possess in violation of law, or
prescribe to him or herself, or furnish or
administer to another any controlled
substance.
• Use any controlled substance or any
dangerous drug or dangerous device, or
alcoholic beverage, to an extent or in a
manner dangerous or injurious to him or
herself or any other person.
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2762 Drug Related Transgressions
• Be convicted of a criminal offense involving
the prescription, consumption, or selfadministration of any controlled substances or
the falsification of a record pertaining to said
controlled substances.
• Be committed or confined by a court for
intemperate use of or addiction to the use of
any of the substances described in this
section.
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2762 Drug Related Transgressions
• Falsify or make grossly incorrect, or
inconsistent entries in any hospital or patient
record.
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Standard of Care Components
• State Nurse Practice Act
• Federal Organization Guidelines (JCAHO,
Medicare and Medicaid)
• Facility Policy and Procedures
• Unit Policy and Procedures
• Unit Standards of Care
• Professional Nurse Associations (ANA, NANN)
• Authoritative Texts, Articles, Studies etc
• Expert Testimony
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JCAHO’s Definitions
• Negligence is the “failure to use such care as
a reasonably prudent and careful person
would use under similar circumstances”.
• Malpractice is the “improper or unethical
conduct or unreasonable lack of skill by a
holder of a professional or official position”.
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Nursing Malpractice Lawsuits
increasing yearly with no sign of
stopping
• Contributing Factors
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–
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Delegation (more on floors than ICU’s)
More Knowledgeable Patients
Higher Patient Expectations
Hospitals more reliant on RN’s (less costly than
other disciplines)
Increased Autonomy and Responsibility
Expanded Legal Definitions of Liability hold all
Professions to a higher standard of
accountibilty
Technological Advances
Early Discharge
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
• PROTECT YOUR PATIENT!!!!!!!
• Administer the best possible nursing care
according to the highest professional
standards.
• Follow standards of care from your specialty
area, state and federal regulations, standards
of JCAHO, ANA and NANN standards, hospital
P&P’s, and the CA Nurse Practice Act.
• Become familiar with malpractice law.
• Make a favorable first impression (build a
caring, attentive, trusting relationship with pt)
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
• Establish a baseline prior to administering care
– Review medical records, noting significant
information
– Read care plan, discuss with patient, and revise
as needed
• Don’t accept responsibilities for which you are
not prepared.
• Evaluate your assignment – are you
competent?
• Carry out orders cautiously-don’t blindly follow
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
•
•
•
•
Administer Drugs Carefully
Maintain rapport with patient
Document care accurately and thoroughly
Don’t assist with procedures without informed
consent
• Don’t use equipment that is unfamiliar or
seems to be functioning improperly
• Stay current
– Ignorance is no excuse for substandard care,
esp. if you are certified in a specialty area.
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
• Never perform a procedure you feel uncertain
about or is outside the scope of your practice.
• Patient teaching has become a JCAHO focus
including discharge teaching. Document what
was taught, method of teaching utilized, as
well as the names of any witnesses to the
teaching.
• Think before you speak:
– Avoid offering opinions about what might be
wrong with a pt (making a medical diagnosis)
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
• Think before you speak: (continued)
– Avoid offering opinions on the choice of a
physician
– Avoid offering opinions on possible treatments
– Avoid criticizing other caregivers or care that
was provided
– Avoid statements that can be perceived as
admission of fault or error
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Best Protection From Being
Named A Defendant In A
Medical Malpractice Suit
• Think before you speak: (continued)
– Never discuss a patients confidential
information with anyone not involved with the
care of that patient.
– Never discuss patient’s in public areas, even if
their name is not mentioned.
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Analyzing The Malpractice
Concept
• Reviewing both nursing and legal literature
suggests there are two antecedents that occur
either alone or in concert, before all
occurrences of malpractice.
1. Lack of adequate education and
training.
2. Lack of thoroughness and attention to
detail on behalf of the nurse.
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Four Elements of a Lawsuit
• Before a malpractice suit can be filed, the
plaintiff must prove that all four of the following
elements are present.
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–
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Duty
Breech of Duty
Damages
Causation
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Common Areas of Malpractice
Allegations in Neonatal Nursing
• Resuscitation
– Case Study #1
• Respiratory Distress
– Case Study #2
• IV Therapy
– Case Study #3
• Medication Errors
• Hypoglycemia
• Documentation
– Case Study #4
• Discharge Teaching (more recently)
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Where Nurses Went Wrong
• Failure to accurately assess and monitor the
patient’s condition
– Case Study #6
• Failure to notify the health care provider of
problems
– Case Study #7
• Failure to follow orders
– Case Study #8
• Contributing to medication errors
– Case Study #9
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Where Nurses Went Wrong
• Failure to convey discharge instructions
– Case Study #10
• Failure to ensure patient safety
– Case Study #11
• Failure to follow policies and procedures
– Case Study #12
• Failure to properly delegate and supervise
– Case Study #13
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Did you know that hospital P&P
• Are mostly mandated by state or jurisdictional
licensing laws or by such federal regulations
that are conditions for participation in
Medicare or Medicaid?
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Too specific
Too restrictive
Too idealistic
Irrelevant
Too voluminous
Not updated or reviewed
Changes not communicated to staff
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Civil and Criminal Charges
– CIVIL action is brought forth by the patient or
their representative for the purpose of
obtaining monetary compensation for injury or
harm resulting from a negligent act or failure to
act.
– CRIMINAL lawsuits are crimes against a victim
brought forth by the government for the
purpose of punishment for the person
committing the wrong and to act as a deterrent
for additional wrongdoing. (Must be a gross
deviation from the standard of care and the
nurse must fail to perceive a substantial and
unjustifiable risk) Case Study #5.
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Civil and Criminal Charges
– Most common reason why plaintiffs seek
attorneys:
• To get answers
• System change to prevent future injury to other
patients
• Healthcare personal learn from the experience
• Apology
• Closure
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Reducing Nursing Liability
• Establish a caring relationship with the family
• Know your legal and ethical responsibilities
• Define appropriate assignments
• Take action when an infant’s condition warrants
• Defensively document all patient care
• Maintain clinical competence
• Stay within your legal “Scope of Practice”
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Nursing Documentation in Legal
Proceedings
• Nursing Documentation composes the majority
of the medical record.
• Nursing notes become the most important
evidence to reflect how care was rendered as
well as the outcomes of that care.
• Omissions, inaccuracies, or missing
documentation immediately places the record,
as well as the health care providers, under
suspicion.
• Jurors and attorneys view the medical record
as the best evidence of what really happened
to a patient.
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Legalities of
Nursing Documentation
• Know the governing laws in the state of practice, the policies
and procedures and the standards of care of the institution as
well as the unit of practice and the guidelines from applicable
specialty organizations (ANA and NANN).
• Know that when state law and institutional policy are in
conflict, state law trumps the institution.
• Specialty guidelines for practice aren’t legally binding, but they
do create a standard of care for a patient in a particular setting.
• The gold standard that’s used for determining what a nurse’s
action should’ve been is: “What would a reasonable and
prudent nurse have done in the same or similar situation?”
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Legalities of
Nursing Documentation
• Keep Your Audience In Mind
– The Healthcare Team (create an illustrated
timeline for the care of the patient).
– The Scribe (serves as a memory refresher for
the RN, years later).
– Lawyers and Experts (looking for what went
wrong, what could have been better, and was
the standard of care met).
– Judge and Jury (make a complex and confusing
issue understandable for lay persons)
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Legalities of
Nursing Documentation
• Follow The Nursing Process
– Never document an acute abnormality found
during an assessment without documenting the
intervention initiated.
– Never document the intervention initiated
without documenting the patient response to
said intervention.
– Never document a body system abnormality
without elaboration.
– Always document the patient’s baseline mental
status, if known.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Don’t confuse visual, audible, and tactile assessment.
(pt has a normal breathing pattern as evidenced by
sight, the nurse shouldn’t document that bilateral
breath sounds were CTA unless a stethoscope was
used to reveal evidence by hearing.
– Reconcile mismatched objective and subjective
assessment findings. (pt states his pain is a “10” but
you find him sitting up, playing cards with a friend).
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Don’t become complacent with check-off assessments.
(There is no single way to undermine credibility in
court more powerfully than documenting that a pt
with a R below-the-knee amputation has bilateral
pedal pulses that are strong and equal).
– Always assess the patient at the time of discharge or
transfer.
– Never use medical terminology unless the meaning of
the word is known.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– When in doubt, spell it out (only use the
hospital approved abbreviations).
– Use quantifiable data with descriptions
(reference common objects such as a quarter).
– Ensure that late entries follow your facility’s
policy.
– When relying on information from another
source be sure to note that in some way. You
do not want information obtained from another
source attributed to you, particularly if it is
inaccurate.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Chart objectively (Document facts only – what
you see, hear, smell, and touch, otherwise it
can be misconstrued as making a medical
diagnosis, which is practicing medicine without
a license.
– Never chart humor, sarcasm, bias, racial and
ethnic slurs, or profanity. (It is very humbling to
have your notes blown up and displayed on a
screen in a courtroom for all to see).
– Never assign blame or pass judgment (“this RN
has called the physician six time with no
response”, is not an appropriate note).
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Make corrections per institutional policy.
– Discourage telephone and verbal orders (RB
and V if it is in an emergency situation)
– Never chart in advance.
– Medications – Document effectiveness of
medication and action taken if med not
effective. Always document why meds were
held, otherwise it appears to be a med error to
the legal community.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Document discharge teaching thoroughly.
– Indicate that instructions were reviewed,
understood and could be repeated and that the
patient was offered the opportunity to ask
questions.
– Indicate the presence of any witnesses (by
name) who overheard the discharge
instructions.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Always assess, chart observations, recognize complications
and immediately escalate changes in patient status to the
physician.
– Avoid words such as “accidentally”, “mistakenly”, and
“inadvertently”.
– Avoid charting “MD aware”, “reported to oncoming shift”,
“MD paged”. Chart specifically who you made aware and
the content of your conversation as well as the time it
took place. If you receive NO response or a BAD
response, chart the time and the name of the person on
up the chain of command that you reported to, their
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all
the way to the top if necessary.
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Legalities of
Nursing Documentation
• Follow The Nursing Process (continued)
– Always fill out an incident report (utilize the 5
W’s). This report is not part of the permanent
medical record, but is sometimes discoverable.
– Never refer to the incident report in the medical
record. Only chart the facts of what occurred,
treatment provided and the outcome.
– COMPLETE AND ACCURATE IS THE KEY!
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Hospital Chain of Command
• NNP
• MD (If MD issue Dr. Gail Knight, then Dr. Buzz
Kaufman)
• Charge Nurse
• Administration (Nanci, Beth, Stefanie or Fran;
always someone on call)
• House Supervisor (more on night shift)
• Director (Barb Lowe Holt)
• Vice President and Chief Nursing Executive
(Mary Fagen)
• Senior Vice President and Chief Operating
Officer (Meg Norton)
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Professional Liability Insurance
• Have you ever read or even seen a
copy of your employers malpractice
insurance policy?
• Most hospital’s insurance policies are there to
protect the hospital from liability NOT their
employees.
• Most employer policies cover the employee for civil
nursing negligence and medical malpractice; but
only when they are working for said employer and
only if there is no conflict between the RN and the
hospital.
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Professional Liability Insurance
• RN’s typically have NO protection under their
employer’s policy for:
– Licensure coverage with the State Board of
Nursing
– Criminal Suits (plaintiff must prove criminal
intent)
– Failure of RN to follow hospital P&P’s
– Emergency situations outside the hospital
(plaintiff must prove gross negligence)
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Professional Liability Insurance
• RN’s typically have no protection under their
employer’s policy for: (continued)
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Conflict of Interest with the hospital
Moonlighting (fatigue)
Past employee of hospital, lawsuit now pending
Employer sues the employee that they feel was
responsible for the incident in the lawsuit
– After hours situation (neighbors, friends, etc)
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Professional Liability Insurance
• Liability Insurance Providers
– Multiple Providers
– Multiple Type Policies and Coverage
– Many less than $100/yr for $1,000,000 per
incident and $6,000,000 aggregate.
– ANA website www.nursingworld.org
– NSO website www.nso.com
• Statue of Limitations
– Adults: 2-3 years after discovery of damages
– Children: Differs between states but can be up
to the age of 21 in some states.
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CONCLUSION
• Case Study #14
• The medical record provides legal proof of the
nature and quality of care the patient
received.
• The weight it carries in legal proceedings CAN
NOT be over emphasized!
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Nursing Legalities
We prepare your most valuable
witness… the
medical record!
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