Nursing malpractice liability in advanced practice healthcare delivery

1 Nursing Malpractice Overview: How Nursing Has Change in Modern Times Nursing has changed a lot since the days when Florence Nightingale began training nurses in England in the 1800s. As Johnson (2015) notes, “he need for nurses today to be highly trained, well-educated, critical thinkers is a requirement enabling them to make complex clinical decisions that 50 years ago would almost certainly have been made by doctors.” Indeed, the Institute of Medicine (IOM, 2012) has shown that the future of nursing depends upon nurses obtaining further education so as to become Advanced Practice Registered Nurses (APRNs) who can operate independently of doctors, diagnosing patients, providing interventions, and prescribing drugs. The risk is that as nurses assume more and more responsibility in diagnosing and treating patients, they assume more liability, which means that if something goes wrong and the patient is negatively impacted by a nursing error, oversight or malpractice, the nurse can be held responsible. However, as more doctors have left primary care for specialized medicine, nurses have been called upon to fill the gap in patient care (O’Brien, 2013), which means whether they like it or not, they bear a great deal more responsibility in practicing quality care than was the case in the past. More is expected of nurses in modern times than ever before and these expectations have been noted in laws regarding malpractice. Bal (2009) points out that “as technology and the demand for healthcare have increased, the complexity and incidence of healthcare delivery, injuries, and adverse outcomes require a system of patient redress that is equitable, fair, economical, and just” (p. 346). Nurses, therefore, are left facing issues of how to protect themselves from malpractice suits. Health care providers in general must be on their guard in more ways than one (Leflar, 2013). Common Errors Common errors committed by nurses include medication errors—giving a patient the wrong drug or the wrong amount; documentation errors—not monitoring a patient correctly or not recording important information regarding a patient or the patient’s treatment; failing to make routine calls on patients so as to prevent falls or other issues that could be prevented by routine checks; and equipment injury (Delamont, 2013). Most of these errors occur from the following problems that nurses face: failing to collaborate and/or communicate with colleagues about a patient to ensure continuity of care; failure to clarify interdisciplinary orders; failure to seek assistance when needed; failure to follow proper guidelines, established practice, or safety precautions; failure to effective staff a facility, leading to nursing fatigue (and therefore to the possibility of errors being committed); failure to communicate effectively with patients and their families in order to obtain all necessary information (Delamont, 2013). Possible Fines, Jail Time, and the Likelihood of Future Employment While not all nursing errors will lead to fines, jail time or termination of employment, some will have serious consequences, and nurses should be aware of what these errors are. According to Cady (2009) errors that are likely to lead to prosecution include “medication errors involving especially vulnerable patients, errors resulting from inattention or fatigue, errors that can be deemed grossly negligent by a nursing expert, and errors that inflame public sentiment” (p. 13). Nurses must therefore guard against these errors by applying the safety nets that all nurses have access to when providing quality care to patients. If nurses are found to be grossly negligent, they may be fined, may face prosecution, may be sued, or may lose their jobs. Depending on the adverse effects suffered by the patient, the severity of the repercussions for the nurse will vary. The best policy, of course, is to prevent all errors from occurring in the first place—but if they do occur, there are steps that a nurse can do to mitigate the negative effect of the error. These steps include: · Notify the physician · Report the error immediately · Follow protocol regarding disclosing the error to the patient and to the family (Cady, 2009) Safety Nets to Aid Nurses Safety nets are routinely put in place to protect and help nurses on the job. These safety nets include policies, guidelines, and procedures that nurses are expected to follow in order to reduce the risk of nursing error occurring. These safety nets include: 1) policies and procedures—reviewing and knowing the fundamental principles of nursing in your workplace environment, especially if a new or chaotic situation is presented; 2) communication tools—nurses can communicate with others constantly, if only to bring other nurses into the loop so that if an error is accidentally or unknowingly committed it won’t go unnoticed for long; 3) training—only practice to the extent that one is trained; 4) documentation—document everything so that the medical record contains a clear explanation of what has been done for the patient; 5) continuing education—some facilities support the development of nurses’ education by offering continuing education opportunities; 6) the chain of command—everything can be reported up the chain of command to ensure that proper oversight is conducted; 7) limitations on work—nurses should be careful not to work more than they are scheduled or to work extra long hours, as nursing fatigue is one of the biggest contributors to nursing error; 8) the 5 rights of medication administration—check to make sure it is the right patient, the right drug, the right dose, the right route and the right time (Cady, 2009). Following the standards of care are the best safety nets available to nurses. However, sometimes a nurse might be named in a malpractice suit regardless of whether standards of care were adhered to. In cases like these, the best safety net that a nurse can have is to possess malpractice insurance. Just as physicians are expected to have this type of insurance in case something goes wrong under their watch, nurses can benefit from it too in order to avoid having to face the fear of litigation unprotected should the results go against the nurse. Good Samaritan Laws As Morris (2018) notes, health care providers have a duty to treat individuals who are brought to them for treatment. Sometimes, however, a nurse might be out in society when the need arises for treatment or intervention. Because of the chaotic nature and limited extent to which quality care can be provided, attempting to provide care in such a situation may seem risky—especially if something goes wrong or if the patient’s health is not improved. The nurse may be sued. Fortunately, Good Samaritan laws are in place to help protect nurses in such situations. Morris (2018) points out that “Good Samaritan laws generally provide basic legal protection for those who assist a person who is injured or in danger. In essence, these laws protect the ‘Good Samaritan’ from liability if unintended consequences result from their assistance.” In other words, a nurse cannot be held responsible if the consequences of the intervention are beyond the nurse’s ability to control. Good Samaritan laws recognize that health care providers play an important role in society and that their help should never be discouraged. Good Samaritan laws are universal throughout the U.S.: “All 50 states and the District of Columbia have some type of Good Samaritan law” although “who is protected under these laws (physicians, emergency medical technicians, and other first responders) and how these laws are implemented vary from state to state. In addition, some states extend Good Samaritan liability protection to cover business and nonprofit entities acting during an emergency” (Morris, 2018). A nurse should find out what type of protection is afforded nurses at the facility where the nurse is employed in order to gauge effectively the extent to which Good Samaritan laws are in force in the workplace. Opinion: Should Nurses be exempt from Extra Protection? Nurses should not be exempt from extra protection: they serve a special purpose in health care and their role is imperative; therefore, they should be provided as much protection as possible to ensure that they have the confidence to implement quality care at every stage of the process. When nurses are viewed as somehow less important in providing care than physicians, society is at risk of missing the value that nurses bring to health care. If it weren’t for nurses there would be even less access to care than there is today. It should be remembered that many primary care physicians began shifting or migrating into specialized medicine in the mid-20th century, leaving a large gap in care in the industry. Nurses have helped to fill that gap: they also help in numerous other ways to ensure that patients receive top quality care. The procedures and policies that are in place are there to facilitate trained nurses in the exercise of care giving. Sometimes, however, situations can arise that are outside of a nurse’s control. Nurses should not be made vulnerable to attack or to a law suit in such circumstances. Resorting to legal means to obtain restitution should only be a right when the nurse is in dereliction of his or her duty. If anything nurses should be given more protection than they already have. So long as they can show that they followed all procedures and guidelines—especially when administering medication, monitoring a patient, communicating with colleagues, and documenting and recording everything—nurses should be allowed to practice free from fear of being sued. Only when nurses display flagrant disregard for the practice and guidelines associated with quality care should they be held accountable to the law. Conclusion There are many risks associated with nursing today as nurses are utilized far more in the modern health care industry than they were half a century ago. As a result, nurses are depended upon for more than ever. They thus have a duty and responsibility to ensure that the best quality care is provided for patients. To help them achieve this goal, they have education and training to fall back upon as well as safety nets like procedural guidelines and common practices (such as the 5 rights when distributing medication to patients). However, sometimes nurses can be scheduled more hours than they should be scheduled because of gaps in shift coverage. Nurses who are overworked might experience fatigue which can result in nursing errors being committed. Errors can be committed for other reasons too, of course, but the most common errors include medication errors, documentation errors and communication errors. Nurses must be on guard at all times to ensure a safe workplace for themselves and for patients.