Discussing Lawsuits and Liability
in small groups, discuss the following questions:
1. do you believe that there are unnecessary lawsuits in the health-care industry? What criteria can be used to distinguish between appropriate and unnecessary lawsuits?
2. have you ever advised a friend or family member to sue to recover damages that you believed they suffered as a result of poor-quality health care? What motivated you to encourage them to do so?
3. do you think that you will make clinical errors in judgment as a nurse? if so, what types of errors should be considered acceptable (if any), and what types are not acceptable?
4. do you believe that the recent national spotlight on medical error identification and prevention will encourage the reporting of medical errors when they do occur?
EXTENDING THE LIABILITy
In recent years, the concept of joint liability, in which the nurse, physician, and employing organization are all held liable, has become the current position of the legal system. This probably more accurately reflects the higher level of accountability now present in the nursing profession. Before 1965, nurses were rarely held accountable for their own acts, and hospitals were usually exempt due to charitable immunity. However, following precedent-setting cases in the 1960s, employers are now held liable for the nurse’s acts under a concept known as vicarious liability. One form of vicarious liability is called respondeat superior, which means “the master is responsible for the acts of his servants.” The theory behind the doctrine is that an employer should be held legally liable for the conduct of employees whose actions he or she has a right to direct or control.
1. Pursue patient safety initiatives that prevent medical injury by:
l strengthening oversight and accountability mechanisms to better ensure the competencies of physicians and nurses
l encouraging appropriate adherence to clinical guidelines to improve quality and reduce liability risk
l supporting team development through team training
l continuing to leverage patient safety initiatives through regulatory and oversight bodies
l Building an evidence-based information and technology system that impacts patient safety and pursue proposals to offset implementation costs
l promoting the creation of cultures of patient safety in health-care organizations
l establishing a federal leadership locus for advocacy of patient safety and health-care quality
l pursuing “pay-for-performance” strategies that provide incentives to improve patient safety and health-care quality
2. Promote open communication between patients and practitioners by:
l involving health-care consumers as active members of the health-care team
l encouraging open communication between practitioners and patients when adverse events occur
l pursuing legislation that protects disclosure and apology from being used as evidence against practitioners in litigation
l encouraging nonpunitive reporting of errors to third parties that promote information and data analysis as a basis for developing safety improvement
l enacting federal safety legislation that provides legal protection for when information is reported to patient safety organizations
3. Create an injury compensation system that is patient centered and serves the common good by:
l conducting demonstration projects of alternatives to medical liability that promote patient safety and transparency and provide swift compensation for injured patients
l encouraging continued development of mediation and early-offer initiatives
l prohibiting confidential settlements that prevent learning from events
l redesigning the National practitioner data Bank
l advocating for court-appointed, independent expert witnesses to mitigate bias in expert wit- ness testimony
Source: Joint Commission on Accreditation of Healthcare Organizations. (2005). health care in the crossroads: strat- egies for improving the medical liability system and preventing patient injury. Oakbrook Terrace, IL: Author.
DISpLAy 5.2 Summary of Recommendations from the Executive Summary of “Healthcare in the Crossroads: Strategies for Improving the Medical Liability System and Preventing Injury”
The difficulty in interpreting respondeat superior is that many exceptions exist. The first and most important exception is related to the state in which the nurse practices. In some states, the doctrine of charitable immunity applies, which holds that a charitable (nonprofit) hospital cannot be sued by a person who has been injured as a result of a hospital employee’s negligence. Thus, liability is limited to the employee.
Another exception to respondeat superior occurs when the state or federal government employs the nurse. The common-law rule of governmental immunity provides that governments cannot be held liable for the negligent acts of their employees while carrying out government activities. Some states have changed this rule by statute, however, and in these particular jurisdictions, respondeat superior continues to apply to the acts of nurses employed by the state government.
Nurses must remember that the purpose of respondeat superior is not to shift the burden of blame from the employee to the organization but rather to share the blame, increasing the possibility of larger financial compensation to the injured party. Some nurses erroneously assume that they do not need to carry malpractice insurance because their employer will in all probability be sued as well and thus will be responsible for financial damages. Under the doctrine of respondeat superior, any employer required to pay damages to an injured person because of an employee’s negligence may have the legal right to recover or be reimbursed that amount from the negligent employee.
One rule that all nurses must know and understand is that of personal liability, which says that every person is liable for his or her own conduct. The law does not permit a wrongdoer to avoid legal liability for his or her own wrongdoing, even though someone else also may be sued and held legally liable. For example, if a manager directs a subordinate to do something that both know to be improper, the injured party can recover damages against the subordinate even if the supervisor agreed to accept full responsibility for the delegation at the time. In the end, each nurse is always held liable for his or her own negligent practice.
Managers are not automatically held liable for all acts of negligence on the part of those they supervise, but they may be held liable if they were negligent in the supervision of those employees at the time that they committed the negligent acts. Liability for negligence is generally based on the manager’s failure to determine which of the patient needs can be assigned safely to a subordinate or the failure to supervise a subordinate adequately for the assigned task (Huston, 2014a). Both the abilities of the staff member and the complexity of the task assigned must be considered when determining the type and amount of direction and supervision warranted.
Hospitals have also been found liable for assigning personnel who were unqualified to perform duties as shown by their evaluation reports. Managers, therefore, need to be cognizant of their responsibilities in assigning and appointing personnel because they could be found liable for ignoring organizational policies or for assigning employees duties that they are not capable of performing. In such cases, though, the employee must provide the supervisor with the information that he or she is not qualified for the assignment. The manager does have the right to reassign employees as long as they are capable of discharging the anticipated duties of the assignment.
In addition, there has been a push to have more in-depth background checks when health- care employees are hired, with some states already mandating such checks. For example, California, as of 2009, determined that it would no longer issue temporary or permanent licenses to nurses without a criminal background check. Indeed, many states are now requiring a criminal background check on all license renewals, and federal legislation has recently been introduced along these lines.
At present, except in a few states, personnel directors in hospitals (those making hiring decisions) are required to request information from the National Practitioner Data Bank for
those individuals who seek clinical privileges, and many states now require nursing students to be fingerprinted before they are allowed to work with vulnerable populations. In the future, hiring someone without an adequate background check, who later commits a crime involving a patient, could be another area of liability for the manager. This is an example of the type of pending legislation with which a manager must keep abreast so that if it becomes law, its impact on future management practices will be minimized.