This continuing-education offering is sponsored by Nurses Service Organization and provided by Lippincott Williams & Wilkins, an accredited ANCC provider.

Nurse’s Guide to Malpractice: Module 1

Short of giving up nursing, there are no sure ways to avoid a malpractice suit. But you can take steps to cut the odds considerably. The first step is to understand the ways your risk of a malpractice suit increases. Here’s what you need to know.

AN OUNCE OF prevention is worth a pound of cure—if Benjamin Franklin hadn’t coined that expression, surely a nurse would have. That’s because a key part of your nursing skill is the ability to foresee what could go wrong and to keep it from happening. You do that by knowing the areas where your patient is at risk and monitoring them diligently.

The same applies to the potential for a malpractice suit. Your best protection is to know the circumstances where you’re most at risk, then make sure you avoid any mistakes when functioning in them. This won’t make you immune to malpractice charges, but it will strengthen your protection against them and fortify your defense if one occurs.

In this module, we’ll look at two ways your risk of malpractice increases: by not doing what you’re expected to and by doing what you’re not expected to do. With the first, we’ll focus on medication errors and common nursing failures. With the second, we’ll look at specific actions that could put you at risk for a malpractice charge in dealing with a patient.

Not giving meds properly

You’ve heard it a hundred times: right patient, right drug, right route, right dose, right time. Any deviation from these “five rights” paves the way for a malpractice suit. Here are three aspects of drug administration particularly at risk for lawsuits:

not understanding what is ordered

not administering what is ordered

not documenting what is administered.

Let’s take them one at a time.

FIRST, the law expects that you have a basic understanding of any drug you administer. This means you know what the drug is intended to treat, its adverse effects and contraindications, the expected outcomes, its therapeutic and toxic doses, and its usual route. Unless an order is questionable, the law also expects that you administer the drug as ordered. Here are some circumstances that put those expectations at risk and how you can avoid liability:

You don’t recognize the drug. Never give a drug that you aren’t familiar with. Instead, find a reliable source (the package insert, a pharmacist, a reference manual) and learn about the drug. Also, be familiar with your facility’s list of drugs that nurses can administer. If the drug isn’t on the list, don’t give it, and be sure to immediately inform the prescriber who ordered the drug that you’re not permitted to administer it. The prescriber can then choose to administer it himself or prescribe another drug.

The order isn’t clear. An unclear order is any order that you or another health care professional—frequently the pharmacist—has questions about. You don’t need “evidence” that the order is unclear; even a gut feeling that something is wrong (perhaps the route or dose seems unusual) warrants questioning the presciber who wrote the order. Remember, you aren’t protected from liability just because you followed the prescriber’s order.

SECOND, the law expects you to administer the drug as ordered. Here’s where the five rights come into play, with the final three (route, dose, and time) being the ones most often violated.

Make sure you don’t use the wrong site—for example, inadvertently administering a drug through an intravenous line that was meant to be given through a feeding tube. Also check that you don’t confuse abbreviations such as I.M. and I.V. Also pay close attention to your technique. Many lawsuits arise from injections given in the inner quadrant of the buttocks (where the risk of nerve damage is great) and from the Z-track method used on inappropriate sites, such as with smaller muscles.

Be especially vigilant for conversion errors when you don’t have the exact dose or form of medication that’s ordered. Problems frequently arise when the volume of the adjusted dose isn’t significantly larger than the original amount—for example, doubling 0.05 ml compared with doubling 5.0 ml. This can easily happen when converting from an adult form (large dose) to a child’s form (small dose).

Timely administration is especially crucial with drugs that must maintain a therapeutic level—antibiotics, for example. Here, the worse danger is an omitted dose. The only acceptable reason for an omitted dose (aside from patient refusal) is that the patient or the medication wasn’t available. (Of course, the nurse needs to persist in her efforts to obtain the drug and document those actions.) Anything else (the order wasn’t transcribed, the drug was overlooked in preparing or administering the medications, and so forth) is a medication error that can easily find its way into court if an injury occurs.

THIRD, the law expects you to document the drug as administered. This will be covered in greater detail in the second module in this series, How to Protect Yourself from Malpractice. For now, keep in mind that poor record keeping is a common cause of duplicate and omitted doses; as such, it shares the responsibility for any harm that such mistakes might produce. This is a particular problem with pain medications.

Allergies and at-risk populations

Finally, two areas where drug administration is producing numerous nursing malpractice suits are allergies and at-risk populations. Make sure you inquire about allergies and document your findings—initials such as NKA (no known allergies) or NKAD (no known allergies to drugs) are commonly used. Be sure to use your facility’s approved abbreviation.

Ask about over-the-counter as well as prescription drugs; many patients don’t think of nonprescription drugs as “medicine.” Be alert for nondrug allergies that have a drug connection; for example, people allergic to shellfish frequently can’t tolerate the contrast dye used in diagnostic tests.

Finally, determine the drug class your patient is allergic to, not just the drug name. If he’s allergic to one drug class, he may also be allergic to a related class of drug.

Populations at high risk for medication errors—especially when receiving multiple medications—include the young, the elderly, and the mentally ill. With their limited or compromised comprehension and their potential inability to communicate effectively, these patients can easily fall victim to overdose or toxicity.

For this reason, the law expects you to watch them closely for adverse reactions and the signs and symptoms of drug toxicity. You’re probably giving them this extra attention anyway—and not just with medications. Knowing that the law expects more of you with these at-risk populations is an added incentive to practice safely.

Common forms of failure

Besides medication errors, malpractice suits emerge from failures in the threefold duty to observe, intervene, and protect. Let’s look at each of these, focusing on the specific failures that commonly appear in nursing malpractice suits.

Failure to observe. The most sophisticated monitoring equipment notwithstanding, nurses are still the indispensable early warning system of health care. The law recognizes this and holds nurses accountable for it. Here are common situations where nurses have been liable for failure to observe:

when the patient’s condition underwent rapid change, such as after surgery or during labor

after the patient had suffered an injury while in the facility

when the patient possessed known self-destructive tendencies.

With each condition, appropriate monitoring would have caught the complication or change in the patient’s condition. By failing in this regard, the nurse shares in the liability for subsequent related injury. (As discussed in Module 2, accusations of failure to monitor can be substantially countered by accurate, detailed documentation. A nurse who can demonstrate appropriate monitoring is less likely to be held liable because the patient took a turn for the worse.)

Failure to observe. Nurses have a duty to intervene on the patient’s behalf. This duty should be based on the facility’s policies and procedures as well as the nurse’s training and expertise, which should be in accordance with national standards. If you don’t intervene (and we’ll see in a moment just what that involves) where the institution says you should, you can be liable for injuries that the intervention would have prevented. Similarly, if you do intervene and injury results from your lack of training and skill, you can be equally liable.

Frequently, your intervention consists of contacting the health care provider about a change in the patient’s condition, then carrying out whatever the health care provider prescribes. But that’s not a foolproof guarantee that the requirements of intervention have been met. Your duty to a patient demands more than just carrying out the prescribed treatment. If, in your professional judgment, you consider the treatment inappropriate, you’re expected to intervene on the patient’s behalf and clarify the treatment with the health care provider.

A number of recent malpractice cases have hinged on whether the nurse was persistent enough in her attempt to notify the health care provider or to convince him of the seriousness of the patient’s condition. A nurse who evidences a lack of such persistence (for example, not working through the facility’s hierarchy) can be held liable for failure to intervene because the intervention was below what’s expected of her as a patient advocate.

Besides persistence, effective intervention involves thorough and accurate communication of all significant data to the health care provider and other appropriate persons. These can include the patient and the patient’s family, other caregivers (therapists, technicians, and the like), members of the nursing staff, and, when necessary, the hospital authorities.

A crucial element in all these communications is timeliness. Courts are quick to recognize that after-the-fact communication is tantamount to no communication and ends up being another form of failure to timely intervene. Most nurses know how to find a middle ground between passing along every change the patient undergoes and holding back until the situation becomes a crisis. If a gray area remains, keep in mind that you’re much less likely to be accused of failure to timely intervene if you call too soon rather than too late.

Besides interventions that reach out to others, nurses also intervene by reaching into themselves. This involves those situations where you act on your own because you’ve judged that the health care provider needn’t or can’t be contacted.

Here you’re on safe ground as long as you’re acting within the confines of your education, expertise, appropriate standards of care, and your state’s nurse practice act. If you go beyond them, or fail to recognize that the situation calls for skills and experience you don’t possess, you’re liable for any injury that might result from your intervention. The same is true if you’re capable of intervening but don’t.

Failure to protect. Your obligation to safeguard a patient from harm can expose you to a lawsuit on two fronts: if the patient injures himself or if something injures the patient. As for patient-inflicted injuries, lawsuits frequently arise from falls and from the use of restraints. Among the injuries inflicted from outside, burns and equipment malfunction frequently lead to allegations of malpractice.

Falls are bound to happen, especially among the elderly. To safeguard your patient, you need to assess his condition carefully, implement protective measures according to your facility’s policies and procedures (such as effective toileting) for the times when he’s not on his feet, and provide appropriate assistance and supervision when he is. To safeguard yourself, you need to document these measures, plus the fact that the patient or a family member was told—and acknowledged understanding—that the patient should stay in bed or not walk unassisted.

Intended to prevent harm, restraints can themselves cause harm. Your health care facility has policies and procedures for using restraints that are based on the law; make sure you know them and carry them out—especially the conditions required for restraining a patient, how often the restraints should be checked and released, who may order restraints, and when a patient can refuse to be restrained. Because of the inherent dangers of restraints, frequently monitor a restrained patient for skin integrity, circulation, and respiratory status. Document all of your actions.

Burns are a common source of liability claims against nurses. Any source of heat is a potential danger: heating pads, bathing water, enemas and sitz baths, lamps, warming beds, and electrocautery equipment. Besides your own protective measures—testing the water, regulating the heating pad—you can usually rely on your patient’s reactions to unacceptable heat. But patients with decreased sensitivity to heat, ones who are sedated or unconscious, or ones in the at-risk category regarding medications mentioned earlier all require extra vigilance.

Equipment-related injuries where a nurse is at fault can involve a failure either to monitor the equipment or to note and correct a problem. Because you can’t do these unless you’re familiar with the equipment, you have a duty to seek proper orientation—just as the facility has a duty to provide it.

Much more often than equipment failure, patients are injured because of human error: haste, carelessness, or misuse of equipment. In such instances, the failure to protect is compounded, for example, by changing the settings so the machine harms rather than helps the patient.

The same danger arises from making modifications to patient equipment. Most facilities have specific policies regarding when, how, and by whom a piece of equipment can be modified. Follow them; it’s better than following an attorney into court.

Doing what you shouldn’t do

Now we’ll look at some examples of how you can get into trouble by doing something you shouldn’t. Though less common than the mistakes that arise from not doing what you should, they’re equally fraught with legal danger.

No nurse thinks of herself as capable of abandonment, assault, battery, defamation, or imprisonment. But nurses have been found liable for these actions. Patients can file criminal charges or civil actions (asking for monetary damages).

As you read these definitions, keep in mind two things. First, these are intentional wrongs done to another person (the legal term is torts). The individual doing them knows or should know that they’ll cause harm, such as loss of reputation, esteem, or money. Second, though your purpose in reading about these intentional torts is to avoid committing them, your role as patient advocate includes preventing them from happening to your patients.

Abandonment involves unilateral premature termination of the professional treatment relationship by the health care provider without notice given to the patient or the patient’s consent. This would be the case, for example, if a home health care nurse stopped visiting a patient who still needs care without giving any notification or providing alternative sources of care.

In the hospital, claims of abandonment commonly arise from patients going untreated in an emergency department. But patients may also sue if they’re released without appropriate discharge or transfer planning or discharge teaching. Indeed, any patient left unmonitored or unattended can sue for abandonment if damages occur; he must be safely transferred to another professional when a continuing need for care exists.

For instance, suppose you’re assigned to monitor a postoperative patient but a physician calls you to come and help with another patient. If you comply and something happens to your patient while you’re gone, you could be liable for a charge of abandonment.

Assault is any act designed to make a person fearful and produce a reasonable apprehension of harm. Assault doesn’t require touching, striking, or bodily harm; a threatening statement such as “Take your medicine or I’ll put you in restraints” can be considered assault.

Battery is any intentional and wrongful physical contact with a person that entails an injury or offensive touching. In a health care setting, medical battery occurs when an intervention that the patient expressly rejected, or that lacks prior informed consent, is done anyway. That holds true even if the intervention is a sincere attempt to help and may benefit the patient (for example, inserting or removing a catheter).

A patient can’t consent to a treatment without first being duly informed of the elements of disclosure. These include the nature of his condition, the benefits and risks of the proposed treatment, significant alternatives to the treatment, and the consequences of not receiving the treatment. The duty to disclose these elements is present in all situations except these four:

— an emergency

— the patient has waived the right to be informed (he doesn’t want to know the risks, benefits, and so on)

— the health care provider believes the information would harm the patient or prevent him from receiving lifesaving treatment (called therapeutic privilege)

— the patient has already given informed consent on the same type of treatment and doesn’t want to go through the informed-consent process again.

In those situations, appropriate treatment without informed consent shouldn’t be construed as battery.

Legally, the person responsible for obtaining informed consent is the individual providing the treatment—usually the physician or, in some cases, the nurse practitioner, not the nurse. Even the nurse who signs the consent document is simply witnessing the patient’s signature, not the validity of the consent. Still, you should check that the patient understood everything the health care provider said to him and that he has no additional questions. If you think the patient didn’t understand the informed consent discussion, or if there’s a language barrier you’re obliged to notify the health care provider and your supervisor.

Sometimes, the patient may give implied consent. In other words, he indicates his consent by his actions—for example, voluntarily exposing an injection site. Generally, however, the more intrusive or potentially harmful the treatment, the more likely the need for written consent.

Breach of promise is any failure to live up to the obligations created by an agreement or contract between oneself and another person. The contract can be overt or implied. A patient under your care has an implied contract with the facility that he’ll receive appropriate care. As a facility employee, you have an obligation to honor that contract.

Conversion is a legal term for stealing; it involves any unauthorized act that deprives an owner of his property. It requires demonstrating that one person has taken possession of objects previously in the possession of and property of another.

Defamation is communicating to a third party false information that injures a person’s reputation; causes economic damage; diminishes the esteem, respect, goodwill, or confidence that others have for the person; or causes adverse, derogatory, or unpleasant opinions of him. It can be spoken (slander) or written (libel).

Courts generally hold that injurious information is false unless proved otherwise. Truth, then, is the best defense, but it too has limits. As you might imagine, truth is no defense against such charges as invasion of privacy, breach of confidentiality, or inflicting emotional distress.

What’s the safest path? Stick to the facts; avoid opinion and characterization. A common source of defamation—whether about patients or staff—is gossip. For staff, this includes allegations related to disciplining or terminating an employee.

False imprisonment describes any unlawful confinement within fixed boundaries. The confinement can be produced by physical, emotional, or chemical means. Physical confinement, the most common, usually involves restraints or barred access or exit. Emotional confinement can take the form of intimidation: creating a fear that keeps the patient riveted to one place. Chemical confinement results when drugs are given not for their therapeutic value but to keep a patient within an institution. Even preventing a patient from signing out against medical advice is risking a claim of false imprisonment. (Of course, the court will consider why the patient was being confined.)

Most at risk for false imprisonment are the elderly, the physically or mentally impaired, and others who can’t speak or act for themselves. Especially with the mentally ill, state laws are frequently quite specific; failure to understand or comply with those laws can be grounds for legal action.

Fraud is any intentional misrepresentation of factual information. It can involve words, as in documenting a service that wasn’t provided, or behavior, as in concealing medical records from someone who has legal access to them. A health care provider who charges for services that weren’t provided can be accused of fraud.

Infliction of emotional distress is any extreme and outrageous conduct aimed at attacking a person’s peace of mind. Legally, it must be judged to exceed ordinary rude or insulting conduct, but the courts are highly subjective in making such a judgment. One unexpected source of emotional distress is comments made in the presence of a seemingly unconscious patient who is still able to hear.

Invasion of privacy involves a violation of a person’s right to be left alone and not subjected to unreasonable interference with his personal life. It may involve inappropriate exposure of a patient’s body or condition. As for the body, patients who are improperly draped shouldn’t be in the sight of visitors or staff members not connected to their care. Nor should unauthorized persons be permitted to view patients who are considered famous or notorious.

As for their condition, patient confidentiality precludes comments in public places such as elevators, cafeterias, or parking lots and improper disclosure of medical records. Many institutions now have specific guidelines for confidentiality regarding human immunodeficiency virus status, drug and alcohol abuse, and other sensitive information.

Not much different

So far, we’ve looked at ways nurses can avoid legal trouble for things they did or didn’t do. As you read, perhaps you felt that the precautions suggested are nothing more than what a competent, conscientious nurse would do anyway.

If so, you got an important message. Guarding against malpractice isn’t some better-you-than-me form of self-protection or an insidious plot to sweep blame under the carpet or into someone else’s lap. Rather, it’s a professional response to increased health care complexity and patient protection—all within the jurisdiction of a less-than-perfect legal system.

But don’t conclude that just being competent and conscientious means you’ll never be served a malpractice suit. It doesn’t—not in today’s health care environment. In the next module, we’ll look at ways you can fend off the devastating effects of being sued for malpractice.