Understanding Medical Malpractice:

What the Nurse Practitioner Needs to Know Robert D. Walker, JD, MSN, RN, FNP-BC January 31, 2015 1

Disclaimer

This lecture does not, in any way, constitute legal advice or the practice of law and is not intended to replace legal counsel.

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Establishing the “Need to Know”

• Knowledge is empowering • Move from “fear victim” mode -to “proactive-preventive” mode 3

Anatomy of a Medical Malpractice Cause of Action

• A form of negligence • Liability exists whether actions were intentional or unintentional • Negligence results when the nurse practitioner’s conduct falls below the standard of care established to protect the patient from an unreasonable risk of harm 4

Elements

1. Duty 2. Breach of Duty 3. Actual and proximate causation 4. Injury 5

DUTY

• To provide a standard of care, that other reasonably prudent nurse practitioners, in the same set of circumstances, would provide 6

DUTY Standard of Care Considerations

• Nurse Practice Act of your State Board of Nursing defining your scope of practice • National treatment guidelines • Institutional treatment protocol/guidelines • Expert testimony 7

BREACH OF DUTY

A deviation from the standard of care An “expert witness” may be deposed As a board certified nurse practitioner,

national

standards will be used, in part, as the benchmark of the acceptable standard of care 8

ACTUAL AND PROXIMATE CAUSATION

• The analysis of the actual causation element involves the “but for” test • But for the nurse practitioner’s action, injury would not have occurred • Foreseeability – the injuries were the result of the nurse practitioner’s action and the injuries were foreseeable before the injury occurred 9

ACTUAL AND PROXIMATE CAUSATION

A patient came to a medical office for a H+P. A NP took the history and noted that there was a remote history of ulcer with no recent complaints. The patient came back later complaining of back pain. A physician read the NP’s history and initiated aspirin therapy. The patient developed a GI bleed. The patient sued the NP for failing to diagnose an ulcer and sued the physician for failing to order an endoscopy before starting the patient on aspirin. The court found for the NP and the physician. The court found that the patient had failed to prove a connection between the patient’s GI bleed and failure to diagnose the ulcer in order to order an endoscopy earlier.

The plaintiff failed to prove actual and proximate causation.

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HARM

• Injury must be proven • By presentation of: – Medical bills – Expert testimony – Direct evidence of pain and suffering 11

Systematic Approach to Primary Prevention of Malpractice

• Incorporate a review of the elements of medical malpractice into each encounter • Reflexive process of thinking 12

“Hot Spots” for Negligence

“Rule out the worst diagnosis early on” ( C. Buppert 2010) 13

“Hot Spots” for Negligence

(Rule Out The Worst Diagnosis Early ) Example: 1. Middle-aged man experienced chest pain at work 2. NP evaluated and conferred with physician 3. NP diagnosed “muscle spasm” and gave Valium Rx 4. Went to ER was given codeine 5. The next day went to the ER and after EKG performed, was diagnosed with MI 6. Plaintiff sued for lost wages and won against NP 14

COMMUNICATION CONSIDERATIONS

• Electronic communications are discoverable (E-Mail, etc.) • May be used to demonstrate admission of an error • May be used to demonstrate a pattern of mistakes that have been admitted 15

Case Study

• Mrs. Smith, age 70, has a history of diabetes, presents to your clinic with a five day history of urinary frequency and dysuria. She denies any N/V, abdominal pain, or flank pain. She indicates her diabetes is well controlled and her fasting blood sugar this morning was “98”.

• Meds: Lantus 30 units daily • Allergies: PCN • UA results: – Glu: – SG: – Bili: negative 1.010

negative – Blood: trace – Nitrates: positive – Leukocytes:3+ 16

Case Study

What would be a

reasonably prudent

approach?

a.) Send urine for C&S, then treat with Cipro 500mg. BID x 7 days b.) c.) Bactrim DS, one BID x 3 days Don’t treat and inform her she must see her PCP within 12 hours or if not available go to the ER for further treatment 17

“Hot Spots” for Negligence

(Rule Out The Worst Diagnosis Early ) Example: You are working as an acute care NP in a community hospital. You received a call from a seasoned RN notifying you that Mrs. Jones needs something for “anxiety”, She otherwise appears “OK” and vital signs are “OK” . “She was prescribed Ativan in the past” • 5d post op for ORIF left hip • Non smoker • Pulse ox 90% on room air. NO hx of COPD 18

“Hot Spots for Negligence”

A patient saw a family NP for a complaint of discharge and constant scabbing of one of her nipples, of several months duration. The NP ordered topical and oral antibiotics and a mammogram, which was negative. The patient return seven months later with continuation of pain and discharge from the same nipple. The NP referred the patient to a dermatologist. The patient did not see the dermatologist. Four months later, the patient saw her gynecologist, who again treated her breast symptoms with antibiotics, and assured her that she did not have cancer. The patient saw the NP several more times the year following the first visit. Eighteen months after the first visit, the patient came to the NP with unmistakable masses in her breast. The NP referred the patient to a surgical oncologist who diagnosed Paget’s disease. The cancer had metastasized and the patient died shortly after the diagnosis. The court said all three providers breached the standard of care.

Q.

A.

What the NP can learn from this case?

Always follow up on symptoms from the past.

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“Hot Spots for Negligence”

• A 35-year-old woman visited a primary care physician’s office for various ailments in 2001 and 2002. She saw a primary care physician twice and a NP four times. The patient had a history of spleenectomy in 1985. She had received a pneumovax following the procedure. She not receive Haemophilus or meningococcal vaccine. Subsequent to 2002 the patient developed a pneumococcal infection which called for a 3-month hospitalization and a 2-month stay in a rehab facility. During her hospitalization she became septic, suffered organ failure, and necrosis of her toes. She can now walk only short distances and suffered from chronic infections and pain. The patient/plaintiff contended that the standard of care required the defendants to revaccinate the patient with a pneumovax booster due to her asplenia. The plaintiff contended that if the defendants had complied with the accepted standard of care, then she would have avoided her subsequent pneumococcal infection. The clinicians argued that the patient’s visits had all been for acute sick visits, not annual preventive and wellness physicians, which did not provide them with the opportunity to recommend or administer a pneumococcal vaccination. The parties reached a $3M settlement.

Q.

A.

What the NP can learn from this case?

Always perform a health-maintenance screen after every visit.

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CONSIDERATIONS

• Follow established national guidelines as well as the policy and procedures of the organization in which you are practicing • Remember the phrase, “Ordinary reasonable care” • Would a reasonable nurse practitioner in your situation make the same decisions?

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NSO Case Study #1

• 79yo post-op oophorectomy with a wound • NP ordered home care • MD ordered “honey” • Documentation was inconsistent: NO b/p taken until day 14 • On day 16: NP was informed patient had fallen twice, with increase weakness, fatigue. (T 95, P 100, R 18, BP 102/54) • Day 17 the patient died 22

NSO Case Study #1

breach of the duty of care

1. Failure to assess the patient 2. Failure to properly monitor the patient’s vital signs and I+O’s 3. Failure to respond to signs of sepsis 4. Failure to communicate the the patient’s physician and to direct patient to the ER 5. Note: 95 degree temp. in a 59 y.o. 23

DEFENSES

• Contributory negligence, assumption of the risk, or comparative negligence • Ohio and Pennsylvania are comparative negligence states 24

Defense Strategy

Comparative Negligence

Modified Comparative Fault 50% rule: • An injured party can only recover if it is determined that his or her fault is 49% or less. Thus, no recovery if the Plaintiff is 50% or more at fault • (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia) 25

Defense Strategy

Comparative Negligence

Modified Comparative fault 51% rule: • The injured party must be 50% or less at fault to recover damages. Thus no recovery if the Plaintiff is 51% or greater, at fault • Ohio and Pennsylvania follows this rule of law • How might you incorporate this rule of law in your daily clinical practice as a defensive strategy?

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•

Defensive Strategy

Comparative Negligence

Mr. Jones is a 62yo male who has a history of HTN, DM, A-Fib, COPD, and CABG.

1.

2.

Refusing to stop smoking “there is nothing you can say that will make me stop” Frequently will “forget” to take his medication (all of them are on the $4.00 list at Walmart) 3.

Refusing to get the abdominal US for the abdominal bruit due to cost. 4.

Now that you know about comparative negligence what should you focus on, in part, when you document in the medical record?

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Defensive Strategy

Comparative Negligence “

Speak to the Jury” when you chart In the medical record: 1.

2.

Quote Mr. Jones about his refusal to stop smoking. Discuss that his decision can increase his risk for morbidity and mortality Discuss the risks associated with “forgetting” to take his medication. Discuss ways to help him remember 3.

4.

5.

Explain why the abdominal US is needed and the risks of a delay in diagnosis and/or treatment Have patient sign your note. If you are using and EMR, print your note and have the patient sign it, then rescan it back into the EMR Send a certified letter 28

Documentation Tips

•

Use direct quotes

to demonstrate your attention to the patient, highlight main areas of concern, build credibility into the record, and accurately document a patient’s competency, affect, and attitude. For example: “I have been to 12 doctors and no one can help me”.

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Documentation Tips

• Further, quoting the patient’s abuse or threatening words will sufficiently demonstrate their level of cooperation and credibility, while removing any bias in your interpretations 30

Documentation Tips

•

Include supportive, reproducible observations

: If a child appears “nontoxic”, list reasons to justify this description, such as “child is observed climbing on and off the exam table, smiling at intervals and is hopping on one foot while in the exam room” 31

Documentation Tips

•

After performing any procedures:

• always document the condition of the patient after the procedure: For example: “Tympanic membrane visualized after irrigation intact without any erythema”. 32

Special Consideration

• Suits in an outpatient settings often involve the mismanagement of tests. An office practice should be designed so that when tests are ordered, there is a fail-safe mechanism to make sure that they are reviewed in a timely manner. A delay in treatment is a significant source of liability in the outpatient setting.

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Special Consideration

 Check your facility’s test log daily.

 Call the lab to obtain the results. If the results are not available, document in the patient’s EMR that you attempted to obtain the results: “Spoke with lab to obtain Mrs. C’s urine culture results, but results are still pending”.

 If other NPs after you fail to obtain the results in a timely manner, the chart will reflect that you were still diligent.

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Patient Education Can Reduce Malpractice

The Role of the Nurse Practitioner 35

The Right to Understand

• Patients have the right to understand healthcare information that is necessary for them to safely care for themselves, and to choose among available alternatives 36

The Right to Understand

• Healthcare providers have a

duty

to provide information in simple, clear, and plain language and to check that patients have understood the information before ending the conversation The 2005 White House Conference on Aging: Mini Conference on Health Literacy and Health 37

Patient Teaching

…….a major role of the nurse practitioner ================================= • 40-80% of the medical information that patients receive is forgotten immediately • 50% of what the patient does remember is incorrect 38

Teach-Back Method

• Used to confirm comprehension • NOT a test of the patient’s knowledge – it is a test of how well the concept was explained to the patient 39

Teach-Back Method is Evidence-Based

• The medical providers application of interactive communication to assess recall or comprehension was associated with better glycemic control for diabetic patients.” Schillinger, Arch Intern Med/Vol 163, Jan 13, 2003, “Closing the Loop” 40

Asking for a Teach-Back

Ask patients to demonstrate their understanding, using their own words: EXAMPLE: “I want to be sure I explained everything clearly. Can you please explain back to me so I can be sure I did?” 41

Asking for A Teach-Back

EXAMPLE: What will you tell your spouse about the changes we made to your blood pressure medicines today?

Of the two procedures you are going to have,which one will you need to stop your Coumadin? How many days in advance?

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Asking for a Teach-Back

EXAMPLE: “We’ve gone over a lot of information and talked about a lot of things you can do to get more exercise in your day. In your own words, please review what we talked about. How will you make it work at home?” 43

Question to Consider

What are specific topics or directions you commonly discuss with your patients that you can use the teach-back method with?

Examples: • Insulin injections • Inhalers • Medication changes • Chronic disease self-care 44

Question to Consider

How can you best phrase your teach-back questions?

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NSO Case Study #2

• Enlarging uterine Myoma • Uterine biopsy  then if benign  Uterine Artery Embolization (UAE) • NP  handwritten note  stop the Coumadin medication four days prior to her “procedure” • Patient was confused about her Coumadin dosing prior to UAE • After discharge, and before the patient could resume Coumadin the patient had an embolic stroke 46

Conclusion:

How to Prevent Successful Lawsuits

2.

3.

4.

5.

Buppert: 1.

Be careful about establishing patient-provider relationships. Giving medical advice?

 exercise caution and use reasonably ordinary care 6.

7.

Know the standard of care and practice within it Follow your practice guidelines If in doubt use the conservative approach Rule out the worst diagnoses early on Know the limits of training and expertise Follow up 47

Conclusion:

Preventing Successful Lawsuits

 Incorporate the comparative negligence doctrine in your daily routine. (50-51% rule)  You are speaking to the jury when you document. What is important that they should know about this patient? 48

Good Samaritan Law

What is your liability?

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Good Samaritan

• Purpose: to protect individuals that assist a victim during a medical emergency 50

Good Samaritan

Who is protected?

• The law from each state protects different individuals • A general layperson is protected under the Good Samaritan law as long as she/he has good intentions to aid the victim to the best of his/her ability during a medical emergency 51

Good Samaritan

Are Nurse Practitioners Protected?

• Under some Good Samaritan Laws, as long as the nurse practitioner is following normal established procedures (what an ordinary reasonable NP would do under similar circumstances) she/he too would be protected • Each state has specific guidelines!

• See

The Journal For Nurse Practitioners

October, 2012 • See HeartSafe America website 52

Good Samaritan

Receive nothing of value

Dr. John Stevens, a British psychiatrist was traveling by commercial airline from California to his home in London. During the flight, another passenger experienced a pulmonary embolism and Stevens “came to his aid”. At the conclusion of the flight, the airline presented him with a bottle of champagne and a $50 travel voucher as a token of appreciation 53

Good Samaritan

Receive nothing of value

Thereafter, Stevens sent the airline a bill for his services, claiming the airline owed him for 4 ½ times his hourly rate 54

Good Samaritan

Receive nothing of value

What NP’s can learn from this case: • NP’s and other rescuers should NEVER take compensation (something of value, no matter how nominal) for the care they render at a scene of an emergency • Good Samaritan laws were enacted to protect those who voluntarily assist 55

Professional Liability Insurance

• See Certificate of Liability insurance 56

Liability Insurance

2 types: 1. Occurrence Coverage 2. Claims Made 57

Liability Insurance

Occurrence

• Get “Occurrence” which covers any incident that occurred while the NP was insured • Thus, affords coverage as long as it is in place when an incident that leads to a lawsuit “occurs”, regardless when the lawsuit was filed. (Statute of limitation is two years in most states, in which to file a claim. Children have until 24 months following their 18 th birthday). • Choose a company in the US and has been in business at least 10 years 58

Liability Insurance

Claims-Made Coverage

• NP is covered only when the insurance policy is active • Thus, claims made policies provide coverage if the “claim is made” during the policy period • Example: If you leave your employer and the patient files a claim 18 months later, you are not covered • When a claims-made policy terminates, so does the underlying coverage, unless a “tail” is purchased 59

THANK YOU !!

Questions?

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