Choosing a Leadership Style (Marquis & Huston, 2012)
DISPLAY 5.2 Summary of Recommendations from the Executive Summary of
There must be a provable correlation between improper care and injury to the patient.
The final element is that actual patient injury must occur. This injury must be more than transitory. The plaintiff must show that the action of the defendant directly caused the injury and that the injury would not have occurred without the defendant’s actions. It is important to remember here, however, that not taking action is an action.
LEARNING EXERCISE
5.2
Who Is Responsible for Harm to This Patient? You Decide
Y
ou are a surgical nurse at Memorial Hospital. At 4 PM, you receive a patient from the recovery room who has had a total hip replacement. You note that the hip dressings are saturated with blood but are aware that total hip replacements frequently have some postoperative oozing from the wound. There is an order on the chart to reinforce the dressing as needed, and you do so. When you next check the dressing at 6 PM, you find the reinforcements saturated and drainage on the bed linen. You call the physician and tell her that you believe the patient is bleeding too heavily. The physician reassures you that the amount of bleeding you have described is not excessive but encourages you to continue to monitor the patient closely. You recheck the patient’s dressings at 7 and 8 PM. You again call the physician and tell her that the bleeding still looks too heavy. She again reassures you and tells you to continue to watch the patient closely. At 10 PM, the patient’s blood pressure becomes nonpalpable, and she goes into shock. You summon the doctor, and she comes immediately.A S S I G N M E N T:
What are the legal ramifications of this case? Using the components of professional negligence outlined in Table 5.3, determine who in this case is guilty of malpractice. Justify your answer. At what point in the scenario should each character have altered his or her actions to reduce the probability of a negative outcome?
Avoiding Malpractice Claims
Interactions between nurses and clients that are less business-like and more personal are more satisfying to both. It has been shown that despite technical competence, nurses who have difficulty establishing positive interpersonal relationships with patients and their families are at greater risk for being sued. Communication that proceeds in a caring and professional manner has been shown repeatedly to be a major reason that people do not sue despite adequate grounds for a successful lawsuit.
In addition, many experts have suggested a need to create safer environments for care so that less patients are injured during the course of their care. This has especially been true since the release of To Err Is Human by the Institute of Medicine (IOM, 1999), a congressionally chartered independent organization. The IOM report indicated that errors are simply a part of the human condition and that the health-care system itself needs to be redesigned so that fewer errors can occur. For example, even though there are unit-dose systems in play, nurse-leaders often look the other way when staff pour all the medications into a soufflé cup and hand them to patients, thus increasing the possibility of medication errors.
Strategies recommended by The Joint Commission, in its 2005 seminal report, Healthcare in the Crossroads (Joint Commission on Accreditation of Healthcare Organizations, 2005), can be viewed in Display 5.2. The three major areas of focus in the call to action are to prevent injuries, improve communication, and examine mechanisms for injury compensation.
Healthcare in the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury
1. Pursue patient safety initiatives that prevent medical injury by
Strengthening oversight and accountability mechanisms to better ensure the competencies of physicians and nurses
Encouraging appropriate adherence to clinical guidelines to improve quality and reduce liability risk Supporting team development through team training
Continuing to leverage patient safety initiatives through regulatory and oversight bodies Building an evidence-based information and technology system that impacts patient safety and
pursue proposals to offset implementation costs
Promoting the creation of cultures of patient safety in health-care organizations
Establishing a federal leadership locus for advocacy of patient safety and health-care quality 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
Involving health-care consumers as active members of the health-care team
Encouraging open communication between practitioners and patients when adverse events occur Pursuing legislation that protects disclosure and apology from being used as evidence against
practitioners in litigation
Encouraging nonpunitive reporting of errors to third parties that promote information and data analysis as a basis for developing safety improvement
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 Conducting demonstration projects of alternatives to medical liability that promote patient safety
and transparency and provide swift compensation for injured patients Encouraging continued development of mediation and early-offer initiatives Prohibiting confidential settlements that prevent learning from events Redesigning the National Practitioner Data Bank
Advocating for court-appointed, independent expert witnesses to mitigate bias in expert witness testimony
Source: Joint Commission on Accreditation of Healthcare Organizations. (2005). Health care in the crossroads: Strategies for improving the medical liability system and preventing patient injury. Oakbrook Terrace, IL: Author.
Nurses then can reduce the risk of malpractice claims by taking the following actions:
Practice within the scope of the Nurse Practice Act.
Observe agency policies and procedures.
Model practice after established standards by using evidence-based practice.
Always put patient rights and welfare first.
Be aware of relevant law and legal doctrines and combine such with the biological, psychological, and social sciences that form the basis of all rational nursing decisions.
Practice within the area of individual competence.
Upgrade technical skills consistently by attending continuing education programs and seeking specialty certification.
Nurses should also purchase their own liability insurance and understand the limits of their policies.
Although this will not prevent a malpractice suit, it should help protect a nurse from financial ruin should there be a malpractice claim.
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.
LEARNING EXERCISE
5.3
Understanding Limitations and Rules
H
ave you ever been directed in your nursing practice to do something that you believed might be unsafe or that you felt inadequately trained or prepared to do? What did you do? Would you act differently if the situation occurred now? What risks are inherent in refusing to follow the direct orders of a physician or superior? What are the risks of performing a task that you believe may be unsafe?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, 2017c). 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.
Incident Reports and Adverse Event Forms
Incident reports or adverse event forms are records of unusual or unexpected incidents that occur in the course of a client’s treatment. Because attorneys use incident reports to defend the health agency against lawsuits brought by clients, the reports are generally considered confidential communications and cannot be
subpoenaed by clients or used as evidence in their lawsuits in most states. (Be sure, however, that you know the law for the state in which you live, as this does vary.) However, incident reports that are inadvertently disclosed to the plaintiff are no longer considered confidential and can be subpoenaed in court. Thus, a copy of an incident report should not be left in the chart. In addition, no entry should be made in the patient’s record about the existence of an incident report. The chart should, however, provide enough information about the incident or occurrence so that appropriate treatment can be given.
LEARNING EXERCISE
5.4
Discussing Lawsuits and Liability
I
n 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?
Intentional Torts
Torts are legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in a civil action. Whereas professional negligence is considered to be an unintentional tort, assault, battery, false imprisonment, invasion of privacy, defamation, and slander are intentional torts. Intentional torts are a direct invasion of someone’s legal rights. Managers are responsible for seeing that staff members are aware of and adhere to laws governing intentional torts. In addition, the
manager must clearly delineate policies and procedures about these issues in the work environment.
Nurses can be sued for assault and battery. Assault is conduct that makes a person fearful and produces a reasonable apprehension of harm, and battery is an intentional and wrongful physical contact with a person that entails an injury or offensive touching. Frederick (2015) notes that actual battery is not necessary to be charged with either first- or second-degree assault and battery. It is only necessary that body injury could have resulted.
Unit managers must be alert to patient complaints of being handled in a rough manner or complaints of excessive force in restraining patients. In fact, performing any treatment without patient’s permission or without receiving an informed consent might constitute both assault and battery. In addition, many battery suits have been won based on the use of restraints when dealing with confused patients.
The use of physical restraints also has led to claims of false imprisonment. False imprisonment is the restraint of a person’s liberty of movement by another party who lacks the legal authority or justification to do so (Criminal Law Lawyers Source, 2003–2016). Practitioners are liable for false imprisonment when they unlawfully restrain the movement of their patients.
Unfortunately, the use of restraints continues to be common practice in many health-care institutions (especially skilled nursing facilities) despite a growing body of evidence that supports the implementation of alternative strategies to promote resident safety (Rutledge & Schub, 2015). Physical restraints should be applied only with a physician’s direct order. Likewise, the patient who wishes to sign out against medical advice should not be held against his or her will. This tort also is frequently applicable to involuntary
commitments to mental health facilities. Managers in mental health settings must be careful to institutionalize patients in accordance with all laws governing commitment.
Another intentional tort is defamation. Defamation is communicating to a third party false information that injures a person’s reputation. When defamation is written, printed, or broadcast, it is called libel. When it is spoken, it is called slander. Silberman (2015) notes that damages for defamation can be enhanced by how widespread the publication of the defamatory information was. “Each additional disclosure has the potential of increasing the damages for the aggrieved party and thus the exposure for the improper actor (person acting improperly)” (Silberman, 2015, p. 313).
Other Legal Responsibilities of the Manager
Managers also have some legal responsibility for the quality control of nursing practice at the unit level, including such duties as reporting dangerous understaffing, checking staff credentials and qualifications, and carrying out appropriate discipline. Health-care facilities may also be held responsible for seeing that staff know how to operate equipment safely. Sources of liability for managers vary from facility to facility and from position to position.
For example, standards of care as depicted in policies and procedures may pose a liability for the nurse if such policies and procedures are not followed. The chain of command in reporting inadequate care by a physician is another area in which management liability may occur if employees are not taught proper protocols. Managers have a responsibility to see that written protocols, policies, and procedures are followed in order to reduce liability. In addition, the manager, like all professional nurses, is responsible for reporting improper or substandard medical care, child and elder abuse, and communicable diseases, as specified by the Centers for Disease Control and Prevention.
Individual nurses also may be held liable for product liability. When a product is involved, negligence does not have to be proved. This strict liability is a somewhat gray area of nursing practice. Essentially, strict liability holds that a product may be held to a higher level of liability than a person. In other words, if it can be proved that the equipment or product had a defect that caused an injury, then it would be debated in court by using all the elements essential for negligence, such as duty and breach. Therefore, equipment and other products fall within the scope of nursing responsibility. In general, if they are aware that equipment is faulty, nurses have a duty to refuse to use the equipment. If the fault in the equipment is not readily apparent, risks are low that the nurse will be found liable for the results of its use.
Neil (2015) concurs, noting that to avoid product liability, nurses should not use equipment they are unfamiliar with. In addition, nurses should make sure they have documented competency in using equipment