Nurses' liability to assess ... and act

[nurseprnRN, BSN, RN]

All, this came from a legal nursing list I'm on. It's part of a larger discussion on what nurses are liable for in terms of clinical assessment and action. What do you think?

The following is a conclusion from a closed claims report on lawsuits against nurses. It might be helpful.

While nurse-as-custodian claims continue to be asserted, plaintiff's lawyers have now begun to pursue claims that focus on the nurse as a clinician, responsible for using professional judgment in the course of treatment.

In these claims, nurses are perceived as highly skilled and educated professionals who are charged with making clinical observations, exercising discretion and taking appropriate treatment actions based upon a patient's changing clinical picture. This shift reflects, to some extent, the increasing number and importance of specialties and areas of expertise within the profession. The following are examples of the new paradigm of nursing claims:

■ Following a fall by a geriatric patient, the nurse is sued for failure to change the service plan despite increasing problems with gait and behavior.

■ A child is born with profound brain damage, and the nurse is alleged to have failed to properly interpret fetal monitoring strips.

■ A lawsuit charges the nurse with failure to appreciate a patient's risk for skin breakdown and to take appropriate preventive measures.

■ After a patient experiences adverse drug reactions, the family alleges that the nurse failed to properly administer and provide the correct dosage.

■ A patient in the emergency department has a cardiac arrest, and a lawsuit is filed alleging that the triage nurse failed to appreciate acute cardiac symptomatology.

This shift has afforded increasing opportunities for plaintiff's attorneys to name nurses as defendants in medical malpractice lawsuits. Mistakes made by nurses in their role as "custodian" were infrequent, and such mistakes led to easily understood claims that could be resolved without resorting to litigation. However, the new generation of "clinician" claims permits nurses to be included in any case in which a patient receiving complex treatment has a poor outcome.

This is taken from

1. CNA. CNA Healthpro Nurse Claims Study. November 25, 2009 2009.

My link to this report is no longer working.

Here is a more recent update from 2011

1. CNA. Understanding Nurse Liability, 2006-2010: A Three-part Approach. July 2, 2013 2011.

https://www.cna.com/vcm_content/CNA/internet/Static%20File%20for%20Download/Risk%20Control/Medical%20Services/UnderstandingNurseLiability,2006-2010-AThree-PartApproach-11-2011.pdf

[FLAlleycat]

I thought lawyers have always pursued "claims that focus on the nurse as a clinician, responsible for using professional judgment in the course of treatment", even when there really wasn't a claim. I know I've been hauled in for deposition re appropriate professional nursing care. Not sure I understand the question. We nurses have always pursued greater autonomy (at least those I know) and with that comes greater liability.

[dudette10, MSN, RN]

I don't doubt that we will see more nurses as part of litigation brought by patients. This, however requires a multi-faceted approach to nursing preparation for practice.

With diploma schools gone, our education model is poorly equipped to help new grads navigate the increasingly treacherous waters. Clinical experiences are notoriously low quantity and quality. OTJ orientation is too variable from facility to facility and even unit to unit or preceptor to preceptor.

We need to go back and take a long hard look at the foundational aspects of nursing training to prepare for these inevitable litigation changes.

Facilities will only be willing to put in the money for training changes if they are found at fault for inadequate training. All it takes is one new grad to be included as a defendant, and the legal system to lay partial blame at OJT training's door. I don't want it to get to that, though.

We know it's coming, and we must prepare proactively for it.

[pmabraham, BSN, RN]

Good day, GrnTea

Thank you for sharing... Oh, my.... there are so many times I wish, pray, hope that America would become a less litigious nation. I'm not stating there is not room for better training, quality assurance, etc... but wow and sigh.

Thank you.

[amoLucia]

Not sure what you're asking for but ... RE the five situations you denote in which a nurse was sued, I DO see the logic there in each individual case and the growing trend for increasing litigation against nurses.

Nurses have long been expected 'to see the big picture' and looking 'past the trees to see the forest'. We talk about the expectation of any nsg employee, regardless of their position, being held to the standards of care expected by virtue of the RN training received. (I'm thinking about the emp who finishes RN nsg school, but only works at their LPN level or as a CNA or PCT, or as a volunteer.) The RN professional practice expectation is still there.

You have to admit that our academic training has become way more science-based with increased critical thinking skills as versus the past emphasis on technical skills. We can't have it both ways - to be considered the knowledgeable practitioner or to be a technical nurse just doing what was 'ordered'.

With the increased knowledge comes increased responsibility & liability and the increased potential for lawsuits.

Isn't that some of the reasoning behind our carrying our own malpractice insurance? To cover us for what we may have missed?

JMHO

[HouTx, BSN, MSN, EdD]

In Texas, RNs have a legally defined Nurse-Patient duty that was established in 1983 as a result of a landmark case (Lunsford vs. Board of Nurse Examiners) Essentially, the nurse's duty to the patient is independent of, and cannot be overruled by the physician-patient duty. As far as I know, we're the only state in which this has been clearly established. In practice, it means that Texas RNs are held to a higher level of accountability when it comes to advocating for our patients.

For instance, we have a duty to question any physician order that we feel is inaccurate or not in the patient's best interest, based upon our own assessment of the patient's needs. Under this rule, the nature of the required nursing assessment is correlated to the nurse's education and credentials. So, a nurse with specialty certification would be held to a higher standard his uncertified colleagues. This is just one of the reasons that our BON is considered to be 'harsher' than other states.

[classicdame, MSN, EdD]

Agree with HouTx. My opinion is that Texas has set a high standard because the public has higher expectations than ever before. And if the nurse does not advocate for the patient, who will?

[LakeEmerald]

GrnTea,

I am fascinated by this topic and enjoyed reading the article. Would you mind sharing the name of the legal nursing list you are on? One of my favorite sites is Legal Eagle Eye at Legal Eagle Eye Newsletter for the Nursing Profession Home Page. They have a huge list of older cases by specialty that you can read for free. The subscription is kind of expensive, but the older cases are very informative and valuable.

[Susie2310]

I am not sure what you are referring to when you refer to "mistakes made by nurses in their role as custodian" and "nurse-as-custodian" claims. Could you clarify this please?

I do not have any legal training, but it has long been my understanding that nurses can be sued, and are sued, because of clinical decisions/actions that fail to meet the standard of care, and result in or contribute to harm for the patient.

When you use the words "new paradigm of nursing claims," are you saying that nurses being sued for clinical assessments/actions that may fall short of the standard of care and result in harm for the patient is a new trend?

[SoldierNurse22, BSN, RN]

I'd be all for this if nurses actually had more autonomy, but as long as I have to spend 3 hours chasing down a provider for an order for a simple diet change, please feel free to keep the lawsuits pointed at the folks with authority.

From the examples above--so what if a nurse notes a patient with cardiac symptomatology? The nurse could do everything right in his/her assessment and f/u appropriately with the physician, but if the doc doesn't think the assessment has any merit and won't enter the appropriate orders, you're left with a patient in potential trouble and nurse who's terrified of getting sued but has no means to protect him/herself or the patient.

Just another example of setting nursing up to fail...more responsibility, no authority.

[Susie2310]

From the examples above--so what if a nurse notes a patient with cardiac symptomatology? The nurse could do everything right in his/her assessment and f/u appropriately with the physician, but if the doc doesn't think the assessment has any merit and won't enter the appropriate orders, you're left with a patient in potential trouble and nurse who's terrified of getting sued but has no means to protect him/herself or the patient.

My understanding is that in a situation such as this, if, as a nurse, I believe the patient is not receiving appropriate medical care, my duty as a nurse is to go up the chain of command as far as the medical director, until the situation is addressed.

[SoldierNurse22, BSN, RN]

My understanding is that in a situation such as this, if, as a nurse, I believe the patient is not receiving appropriate medical care, my duty as a nurse is to go up the chain of command as far as the medical director, until the situation is addressed.

Agreed. The point, however, is that ultimately, YOU have no power by which to ensure that the proper treatment is carried out in a timely manner. YOU cannot enter the orders. You can chase down providers until your patient is (literally) blue in the face, but should it ultimately be you who's held responsible for a patient death because the doc didn't enter orders? I certainly don't think so.

This mentality ascribes to nursing a fanciful level of authority. Of course, if you have a standing order set or protocol that is activated and doesn't require orders given certain set of circumstances, that's one thing. But to hold someone responsible for interventions that they cannot order? That's absolutely ridiculous until the scope of my practice changes to allow me to react at all given the level of responsibility that would be placed on me under such expectations.