Liability laws for DON's

Liability law is comprised of common law, state and federal regulations, and state and federal case law. Regardless of the subtype, for instance DON, liability law is not located in one area. You would have to research the specific issue and sub-issue to speculate on how it would impact you as a DON in the type of facility as well as the location, Florida.

The legal doctrine you should research is Respondeat superior. A legal rule that the principal or employer is liable for harms done by agents or employees while acting within the scope of their agency or employment. You can start with Findlaw at www.findlaw.com

The best ways that a DON can protect themselves from liability:

1) Develop good orientation and training programs - document that the training was provided. Be pro-active!

2) Make sure that each employee (CNA, LVN, RN, etc.) is practicing within their scope of practice. I have seen the Board of Nursing come down hard on DONs for violations in this area.

3) Assist your facility in developing good policies and procedures that will protect you and others from breaches in care

4) Be a WAM ("Walk Around Manager") Know what your employees are doing.

5) Counsel and discipline the employees that do not follow P&Ps. Identify individuals that may need additional training. Fire the incompetent ones.

6) Make sure that you have taken measures to ensure that your facility is staffed appropriately. I have seen DONs held accountable for dangerously short staffing their facilities and not making any attempts to remedy the situation. Advocate for your staff. Make sure that wages are competitive within your local area.

7) Develop good QA programs. When nurses are making errors, don't always focus on the individuals. Look at systems. Do you have good systems set-up that prevent errors from occurring in the first place?

I just wanted to add that Longterm Care is highly regulated and one of the fastest growing areas of litigation. I would recommend purchasing your own nursing malpractice policy.

"Accountability and Liability in Professional Nursing Practice"

The Center for American Nurses (CAN) identified appropriate staffing, workplace health & safety, patient safety & advocacy, and workplace rights for registered nurses as key issues. An understanding of nursing accountability and nursing liability is fundamental for registered nurses and should be considered when addressing and resolving dilemmas involving the key issues.

Accountability is defined by Black's Law Dictionary (6th ed.) as the state of being responsible or answerable. Nurses, as members of a service profession and as licensed healthcare professionals must answer to patients, nursing employers, the Board of Nursing, and/or the civil and criminal court system when the quality of patient care provided is questioned or when allegations of unprofessional, unethical, illegal, unacceptable, or inappropriate nursing conduct, actions, or responses arise.

Liability is defined by Black's Law Dictionary (6th ed.) as the condition of being actually or potentially subject to an obligation. Nurses are subject to numerous professional and legal obligations and duties. The potential for liability occurs when a nurse breaches an obligation or duty. There is a potential for liability, not automatic or strict liability because nurses are entitled to due process considerations before a finding of liability. Due process means the nurse will be notified of the allegations and afforded an opportunity to respond to the allegations. The process which is "due" varies depending on the setting.

Liability for a registered nurse can take the following forms:

1. Administrative: refers to a Board of Nursing disciplinary investigation for suspected violations of nursing law or rules;
2. Civil: refers to a nursing negligence action, which is a civil suit brought against a nurse and/or his or her employer by a patient for the failure of the nurse to practice in accordance with the nursing standard of care;
3. Criminal: refers to an action brought by federal, state, or local prosecutors for criminal conduct on the part of a nurse; and
4. Employment: refers to disciplinary action taken against a nurse for violating a nursing employer's policies & procedures or employee handbook.

There can be interplay of liability depending on the facts and circumstances involved. For example, a criminal conviction for a nurse may result in a Board of Nursing disciplinary investigation. However, it is possible that a nurse could violate an employer's policies without incurring liability in the civil, criminal, or administrative arenas. Likewise, an infraction that lead to a Board of Nursing disciplinary investigation may not subject a nurse to civil, criminal, or employment consequences.

In summary, each individual registered nurse is accountable for the conduct, actions, and responses undertaken in his or her own nursing practice. The potential for nursing liability will always exist because of nursing accountability. Understanding nursing accountability and nursing liability is the first step in addressing the inherent risks associated with nursing practice. The second step is for each individual registered nurse to incorporate general and practice-specific risk management strategies into his or her nursing practice to decrease and mitigate the risk of liability.

LaTonia Denise Wright, J.D., R.N.
Board of Directors, Center for American Nurses