Nurses frequently have a number of questions related to liability, standard of care, and malpractice litigation in perinatal care. This column is a compilation of some of the most frequently asked questions that have arisen at various conferences taught and/or attended by the author. The responses are the author's own, based on experience as an expert witness and risk management consultant. As such, most of the answers constitute level III evidence and should be viewed as expert opinion. The answers should not be construed as any type of actual legal advice. Other experts may reasonably have different viewpoints, and readers are encouraged to share, discuss, and even debate the opinions provided in this column as part of a critical thinking approach to formulating individual, team, and institutional approaches to the variety of issues posed in the following frequently asked questions. Nurses and other members of the healthcare team may wish to seek out the guidance of their hospital's risk management team when formulating a plan of action in the situations described herein.

I am a hospital staff nurse in labor & delivery (or any other unit, the question seems to universal among hospital departments), do I need to purchase malpractice insurance?

The short answer is no; there is no need for malpractice insurance, as the hospital employer is obligated to defend the employee working within its scope of employment. However, this is an area where many experts disagree. On the pro side of the argument, many authors cite the availability of your own personal attorney, protection of personal assets, and protections from a later lawsuit by the employer against the nurse should he or she be found liable of negligence. On the con side, which is where this author places herself, there are a number of points. First, given the availability of an additional payout to the hospital's policy limits, a plaintiff will be obligated to attempt to recover monies (whether via settlement or at trial) from all policyholders, making the nurse individually a "deep pocket" above and beyond his or her link to the hospital's malpractice policy as an employee. Second, the allure of having one's own attorney may be specious as the attorney provided may have limited, if any, experience in malpractice cases compared with the attorney for the defense of the hospital. And should the attorneys be unable to agree on a unified defense, a number of additional problems may arise. Finally, as to the protection of personal assets, the number of cases where a nurse's personal assets were actually an issue (either from the plaintiff or from a later lawsuit by the employer) is so rare that it can be described as infinitesimal. In conclusion, it is this author's opinion that there is no need for a staff nurse to purchase individual malpractice insurance as long as he or she is working within the scope of employment. Nurses are better served allotting budgetary dollars to membership in their professional organizations and journal subscriptions to provide access to literature that will keep them updated and practicing within the standard of care. The only exception to this would be a staff nurse who also practices nursing outside the hospital, perhaps as a nurse volunteer for local or charitable events where the organization does not have malpractice coverage for the volunteers.

Is my liability greater when I am acting as a charge nurse?

A nurse in any situation has an obligation to practice within the standard of care, regardless of whether he or she is in a staff or supervisory position, and in all jurisdictions the legal standard of care is based upon a reasonableness standard. So when acting as a charge nurse, the question would be did the nurse perform her duties as a reasonable charge nurse would have in similar circumstances? Of course, team leaders, charge nurses, supervisors, etc, have different (and some may describe them as greater) responsibilities than staff nurses, but liability is not something that one can have more or less of, it is always the same standard-Was the nurse carrying out his or her duties in the manner that was reasonable? The ultimate arbiter of this standard-of-care question will be the jury. So it is important that when acting as a charge nurse or team leader, the nurse have a clear idea of his or her responsibilities, and should litigation arise, the nurse must be able to articulate both the responsibilities of the position and his or her actions in meeting those responsibilities.

As a staff nurse, if the doctor or midwife is with me at the bedside, am I still liable for any potential errors in management that result in a poor outcome for the mother or newborn?

Possibly; if the errors in management are such that a reasonable nurse would have instituted chain of communication (also known as chain of command) to question or alter the ongoing plan of care. Nurses have an independent duty to the patient, and this duty does not cease or change with the arrival of the provider at the bedside. On the contrary, chain of communication is not something to be used lightly, and for nurses to institute its use, they must truly believe that there is the potential for harm, not simply a difference of opinion on management. There are situations where the physician or midwife may have lost track of time, is lacking complete situational awareness, or is unaware of clinical information that may have serious implications for management. It is important that nurses work effectively as team members to vocalize whatever information is necessary to ensure situational awareness on the part of all team members and to confirm or clarify plans of management whenever they have questions or concerns. In the end, all members of the team will likely be called upon to defend their care should litigation arise following an unexpected outcome.

Can I refuse an assignment if I feel I am not qualified to provide the appropriate care to a patient? What are the potential legal ramifications of such a refusal?

Yes, nurses can and should refuse assignments if they are not qualified to provide safe care. But issues can arise as to whether that refusal could constitute patient abandonment or become the grounds for the nurse's termination from employment. Most nurses are employed in what is known as an "at will" position, which means that the hospital can terminate an employee at any time for just about any reason. Thus, nurses who frequently refuse assignments (or refuse assignments that nurses of similar background and training usually accept) may find themselves unemployed and without much recourse. While definitions of what constitutes legal grounds for termination will vary both by law (federal and state) and by institutional policy (unions, grievance procedures, etc), it is much better to try to avoid getting into such a position by taking a proactive approach. Perhaps, the best way to handle this type of issue is to have a conversation with the team leader or supervisor to explain what the concerns are regarding the assignment, offer to perform whatever nursing functions could be safely completed, and also offer to work with the administration to gain the needed skills for accommodation of the assignment in the future. For example, having been in a labor & delivery setting for 30 years, a nurse who is asked to go to cover patient care in the intensive care unit will rightfully want to decline the offer because of lack of experience in that specialty. But instead of a flat refusal, the nurse could offer to work with the intensive care unit team and obtain vital signs, make basic assessments, and help as much as was possible within the limits of his or her practice experience. This approach may result in better outcomes for all stakeholders and less likelihood of any legal issues related to the scope of employment or scope of practice.

I am a staff nurse and I forgot to document important conversation between myself and the physician related to patient care, what should I do now?

That depends on how much time has passed. Although there is no nationally recognized legal standard for what constitutes a late entry, in specialty units such as labor & delivery or the neonatal care unit, entries made more than 1 to 2 hours after the fact should be flagged as late entries. So if the conversation was very recent, go ahead and add it. If it was more than 1 to 2 hours earlier, it should be identified in the record as a late entry. But if the nurse has already gone home following a completed shift, no entries should be added to the record without first consulting risk management and asking for guidance.

Is it true that getting continuing education or specialty certification will make me subject to a higher standard of care than other nurses in my field?

This myth keeps popping up across the United States, and it is often proffered as a rationale to skirt attending continuing education or as a reason to avoid specialty training or certification. Nothing could be more ridiculous. Standard of care is based upon reasonableness, and what is reasonable care in labor & delivery or mother-baby, or the neonatal intensive care unit, will still be a reasonableness standard applied whether it is provided by a staff nurse with certification or a staff nurse without certification. However, the nurse who completes continuing education and/or certification may have an advantage should liability issues arise, as the added education or certification may result in greater credibility as a defendant, a better ability to articulate the rationale behind the care provided, and possibly less likelihood of litigation due to fewer chances of error. Continuing education and specialty certification have no legal downside, and plenty of clinical as well as personal upsides, so don't buy into this myth.

If I am involved in a lawsuit, who can I talk to about it?

While you are certainly free to speak with anyone, any discussions you have may be discoverable (the plaintiff will be able to subpoena the people you talk to about the case). To avoid this, as well as any issues with patient confidentiality, you should only speak to your lawyer (often this will be the hospital lawyer), your risk manager, and any individual who they give you permission to speak to, following whatever guidelines they set for the conversations. You may also be able to speak with clergy and other counseling professionals without having such discussions become known to the plaintiff, but it is wise to discuss this option with the defense attorney and/or the hospital risk manager. And a final caveat: don't discuss it at all on any social media site.

What is the statute of limitations in birth injury or neonatal cases?

Statutes of limitations vary by state, as do a variety of other rules related to medical malpractice claims. In birth injury or neonatal cases, there are often special laws allowing for longer periods of time to file a lawsuit on behalf of the minor child. For a comprehensive and relatively recent review of the laws, see the American Medical Association's publication titled State Laws Chart II: Liability Reforms.1

What is the best way to document use of chain of communication (chain of command)?

The best way to document chain of communication is to simply document the facts related to who was called and what was discussed. There is no need to actually document the word "chain of communication" or "chain of command." For example, if a nurse had discussed oxytocin dosage with a physician, and based on the discussion felt it was necessary to use chain of command to resolve a question or issue, he or she might chart:

Uterine activity and oxytocin dosage discussed with Dr Jones. Nurse Smith notified of discussion and patient status, asked to review tracing and plan of care. - -Sue Barrow, RN

Then, the charge nurse or team leader (nurse Smith in the scenario) would write his or her own note regarding the resolution of the issue or activation of the next step in the chain of communication. It is imperative that every institution have a chain of communication procedure in place, and that every nurse receive training in how and when to use it.

As a labor & delivery staff nurse, what are my legal responsibilities related to informed consent for procedures such as induction of labor or cesarean delivery?

There is absolutely no legal responsibility incumbent upon a nurse to obtain informed consent for procedures such as induction of labor or cesarean delivery. It is the responsibility of the provider (midwife or physician) ordering the procedure to ensure that appropriate informed consent has occurred and is documented in the medical record. At most, the nurse may legally witness a signature or provide necessary paperwork to the woman or family. However, nurses do have an ethical and professional obligation both to act as a patient advocate and to raise concerns with the provider should the nurse have reason to believe that the patient has not had the benefit of an informed consent process. If this is the case, the nurse must notify the provider and encourage the patient to discuss the details of the procedure and ask questions regarding the core components of informed consent: risks, benefits, alternatives, and implications for the future.

CONCLUSION

This column has addressed some of the most common liability and legal questions that commonly arise for nurses working in the hospital setting. Detailed answers to each of the aforementioned questions could comprise pages of discussion, but given the limitations of this column, the answers provided have been purposefully brief and to the point. It should be reiterated that for the most part, the answers are primarily the author's opinion and should be regarded as such. In clinical practice, nurses are advised to use literature from peer-reviewed journals, publications and resources of various professional organizations, and the services of their internal hospital risk management teams to continue the discussion of topics and issues raised in this column.

-Lisa A. Miller, CNM, JD

Founder

Perinatal Risk Management and Education Services

Portland, Oregon

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