Nursing Malpractice, Patient Advocacy, and Insurance Costs

Introduction

Modern nursing is a rewarding but challenging career choice. The modern nurse's role is not limited merely to assisting the doctor in procedures. Instead, the contemporary nursing professional takes on a partnership role with both the doctor and the patient as advocate, caregiver, teacher, researcher, counselor, and case manager. The caregiver role includes those activities that assist the client physically, mentally, and emotionally, while still preserving the client's dignity. In order for a nurse to be an effective caregiver, the patient must be treated in a holistic manner.

Patient advocacy is another role that the modern nurse assumes when providing quality care. Advocacy is the active support of an important cause, supporting others, or speaking on behalf of those who cannot speak for themselves (Kozier, Erb, and Blais, 1997).

A typical paradigm of modern nursing is that of patient advocacy, most notably epitomized by Jean Watson. Within this model, it is the patient who is predominant in all decisions — emotional or medical. Unfortunately, there is another side to the positive advocate position in modern medicine. Humans being imperfect, there are times in which errors are made — whether by act or omission in a healthcare situation. When this happens, and care deviates from acceptable best-practice standards, and injury or death is caused to the patient, current law defines the actions as medical malpractice. Standards and regulations for medical malpractice vary from country to country, and sometimes even location to location, but in almost all countries medical professionals are required to maintain professional liability insurance to mitigate the risk and costs of legal actions in a malpractice situation. Nurses are not always required to carry malpractice insurance — it depends on their location and degree of care (an OR nurse is more likely to need insurance than someone specializing in osteology, for instance) (Sloan, 2008).

There are several interesting themes surrounding medical malpractice that this literature review will address: what constitutes a "standard" of nursing care; what is malpractice; what is malpractice insurance and how does it affect the medical field; what effect does malpractice have on healthcare costs; how does malpractice specifically impact nursing; what are the trends in malpractice issues; and finally, what conclusions may be drawn and what are some future implications surrounding the issue?

As noted, the role of the modern nurse is quite complex. Most agree that one of the seminal expectations of nursing is quality care and patient advocacy. A critical theoretical approach to patient advocacy, Jean Watson's Theory of Human Caring represents a dramatic paradigm shift, and as a result, it has been a source of considerable controversy since its introduction. It is still considered a relatively new theory, with the first publication appearing in 1979 in Watson's book Nursing: The Philosophy and Science of Caring (revised 2008). Discussion abounds, possibly because the implications of her theory challenge the applicability of nursing practice in the contemporary world of budget cuts and HMOs — concerning not so much the validity as the practicality of Watson's theory. There is a great deal of information on Watson's theory, its critiques, applications, and extensions, and the content and veracity of the information available is well documented and explored.

Nursing Models and Expectations

Nursing is both an art and a science, with the goal of preserving the worth of humankind through the process of caring. Caring is the essence of nursing and a moral ideal: "Caring has to become a will, an intention, a commitment, and a conscious judgment that manifests itself in concrete acts. Human care, as a moral ideal, also transcends the act and goes beyond the act of an individual nurse and produces collective acts of the nursing profession that have important consequences for human civilization" (Watson, 1988, p. 32). With this comes the responsibility of communicating the idea of shared responsibility in healthcare between patient and system, and helping the patient understand that they have a duty to actively participate in their own process of wellness (Wright, Frey, and Sopory, 2007).

Watson also stresses the subjectivity of the human experience, and uses the term phenomenal field to describe a person's individual frame of reference — influenced by past experiences and never truly knowable by another person. Another aspect of Watson's theory is transpersonal caring, in which nurse and patient co-participate in the goal of achieving health (Watson, 1988, p. 70). Watson (1988) defines health as harmony between mind, body, and soul, and illness as a subjective disharmony between mind, body, and soul. Integral to Watson's theory are the ten carative factors that serve as a "framework for providing a structure and order for nursing phenomena" (Watson, 1997, p. 50). The ten carative factors are as follows:

All of this presupposes a knowledge base and clinical competence (Watson, 1988, p. 75). Nursing must separate itself from the reductionist views of the traditional scientific-medical paradigm and focus on movement toward a human science nursing paradigm. Watson also readily acknowledges that her theory is a work in progress, and she "invites participants to co-create the model's further emergence" (Watson, 1997, p. 52). This is in accordance with a view, shared by many, that nursing is never static but fluid, and that the process of caring and advocacy are so ingrained in the nurse's being that the medical role is defined by that attitude (Zerwekh and Claborn, 2008).

Thus, "care" — the core concept for nurses and the professional and non-professional people they interact with — is one of the field's least understood terms, enshrouded in conflicting expectations and meanings. Although the caring model may vary among cultures, caring is universal and timeless at the human level, transcending societies, religions, belief systems, and geographic boundaries, moving from self to other to community and beyond, affecting all of life and the ability for nurses as well as patients to self-actualize and assist in the healing process (Earp, French, and Gilkey, 2007).

This is certainly not the only nursing theory available, but it is one that combines the most common views on what healthcare should do for the patient, and is seminal in addressing issues that may arise when dealing with malpractice. This universal theory is both intellectually and emotionally attractive and seems to embody the very principles of healthcare — however, no theory of care can address every potential eventuality. Since the human system is adaptive, so is disease, and so are individual ways of manifesting medical issues. This is what makes it so very difficult to prove, with certainty, that malpractice has occurred.

While the overall definition of medical malpractice is the same in most countries, the legal interpretation varies by situation. Some generalizations can be made about the way court systems perceive care. Outside the United States, there is generally an assumption that medical personnel are doing everything they possibly can to ease the patient's discomfort and aid in healing. It is perhaps an economic predisposition, but most physicians outside the United States do not face the same range of income disparity and therefore are not always the target of malpractice suits. In fact, in an interesting irony of both philosophical and economic debate, many U.S. citizens are opting for surgical procedures in other countries — ironically, those countries without a required malpractice insurance requirement and far less litigation — which drives costs down considerably for most procedures. Additionally, many of the physicians performing these procedures are U.S.-trained and, in some cases, U.S. citizens who have relocated to avoid the high cost of practice in the United States (Marlowe and Sullivan, 2007).

The legal structure of medical malpractice is often difficult to prove. There are so many unknowns and hypotheticals in medicine that it is usually unclear whether treatment A would have resulted in full recovery while treatment B resulted in death. However, in order to bring a successful malpractice claim forward, four elements of negligence must be established:

The legal definition of who constitutes a medical professional is rather broad — the defendant in these cases is a healthcare provider, and can be a dentist, nurse, therapist, a hospital, clinic, managed care organization, or even a medical corporation. The plaintiff, however, bears a burden of proof prior to addressing any other technical issues. In addition, because of the nature of the allegation and the fact that ordinary members of a jury or a judge cannot be expected to understand complex medical terms and procedures, expert witnesses are typically called — usually for both sides (Uribe, 1999).

In the United States, several cases have set international precedent on what constitutes "expertise." One cannot be qualified simply on the basis of a diploma; the expert witness must also be qualified for reliability and relevance. There are two models that attempt to accomplish this. First, the Gatekeeper Model requires a pre-trial hearing with the judge in which the court considers whether the expert's testimony is reliable and relevant — whether a theory has been tested and peer reviewed, whether there is a known potential error rate, and whether the expert is knowledgeable about the standards controlling the care or procedure in question (Reegna and Bebout, 1997). The second method requires that a certificate of merit be presented by a medical doctor or panel of doctors attesting that the accused is likely to have been negligent in some aspect of the case (Uribe, 1999).

Medical Malpractice: Definition and Legal Framework

Damages in medical malpractice are rather complicated, depending greatly on the case, the jury's view of the damages, and whether those damages are compensatory, punitive, or both. Compensatory damages are both economic and non-economic. Economic damages include potential lost wages (the earning capacity of an individual) and medical or life-care expenses. Non-economic damages are assessed by the jury for physical or psychological harm — loss of vision in one eye, or loss of a limb or organ that is not life-threatening but may reduce quality of life. Punitive damages, intended to punish, are quite rare and appear only in cases in which conduct is wanton, reckless, or purposeful. In cases involving suicide, physicians and psychiatrists are held to a different standard than in other claims. Legally, suicide is viewed as an act that terminates life — for instance, the defendant may be held negligent for another person's suicide but not responsible for damages thereafter, with an exception made for physicians. Further, simply allowing a patient access to means of suicide can, in some cases, be viewed as malpractice (Giannini, Giannini, and Slaby, 1989).

From a broader perspective, a 1999 and 2006 study found that medication errors are the most common medical mistakes, harming approximately 1.5 million patients per year. Most occur in long-term care and Medicare outpatient clinics — in other words, in areas where there are fewer physicians per patient and less time is spent with each patient. Most of these cases are settled, as are almost three-quarters of malpractice suits involving a medical error. Most of the expense goes to litigation, and there is roughly a 50/50 chance that the entire claim will be denied. The statistics are staggering: for every dollar spent on compensation, 54 cents went to lawyers, experts, and courts — also driving up premiums on all sides of the equation (Studdert, Mello, Phil, Gawande, et al., 2006).

The complication deepens when one examines national statistics on morbidity. Approximately 200,000 hospital deaths occurring between 2000 and 2002 were studied, and when research demographics, mortality, and economic records were applied to this population, at least half were found to be due to potentially preventable medical errors. Additional studies showed that if this were a single disease — measles, flu, or similar — there would be an immediate call for a national epidemic response. The study is not without its critics, and the key challenge lies in defining what constitutes a preventable death. Nevertheless, the conclusions suggest that 50 percent of those who die in hospital may have lived longer had a higher standard of care been applied (Loughran, 2004).

Because of the very nature of nursing, these statistics are both alarming and directly relevant. Nurses are necessarily at the front line of clinical care; therefore, they often bear the baseline responsibility to monitor patients, recommend treatment, and alert a physician when conditions worsen. In most of the literature (Stencel, 2006; Bernzweig, 1996), inadequate budgets and staffing are blamed for a large majority of these cases — a serious issue when reviewing a nurse's responsibility and diligence regarding malpractice.

To be effective, the modern nurse must balance a precarious load: patient care versus staffing constraints; procedural thoroughness versus patient volume; professional relationships versus patient need; and, unfortunately, fiscal budgeting versus appropriate care. The modern nurse must recognize that their position involves continual multiple horizontal priorities and act accordingly. As managers — regardless of subfield — nurses are expected not only to understand the organization's budgetary concerns but to actively manage them as well. Even something as seemingly simple as scheduling can have both short- and long-term impact in almost any setting.

Modern healthcare is a labor-intensive industry. Fiscal dollars spent on human resource management constitute a large portion of a healthcare organization's budget, with nurses and nursing support staff making up a large percentage of that figure. Each employee-hour, improperly managed, has the potential to cost the hospital upward of $50–60 when time, training, taxes, and delays are fully accounted for. Consider if each department made this type of error just once per week in a hospital with only 30 departments; the figure would quickly reach a potential $100,000 per year from a minimal mistake alone — with no positive effect on individual patient care (Fabre, 2005, pp. 180–182).

In addition, the nurse functions as a manager in both a broad and specific sense. To be successful, a nurse manager must be adept in communications, problem solving, and ethics — and then there are the business aspects: accounting, bookkeeping, budgeting, tactical and strategic planning, marketing, human resources, and public relations. This is in addition to clinical expertise, pharmacology, and the balance between patient advocacy and the harsh realities of the modern hospital or clinical environment. Thus, interpreting and acting upon a budget is a necessary tool for a successful nurse — the greater ease with which budgets may be understood and managed, the more time is available for medical issues. Yet a conundrum remains between budgetary efficiency, proper medical care, and the potential for malpractice (Lumby and Picone, 2000).

This issue becomes even more important when weighing new factors of healthcare potentially on the horizon for the United States, as well as the systems already in place in the EU, Canada, Australia, and numerous other countries that follow a British model. Malpractice insurance and awards that have helped to skyrocket costs are not tenable in a healthcare system that is not set up as a profit-based system. Caps on damages can make a significant difference to the system, as can reforms that limit contingency fees, statutes of limitations, and require egregious lapses in performance before litigation is permitted (Miller, 2006).

Medical malpractice is certainly not only an issue in the developed world. In the United States, however, four procedural features drive up the cost of malpractice: jury trials that can use emotion to produce out-of-control settlements; the contingency-fee system (allowing lawyers to self-finance litigation in the hope of high settlements); the rule that each side must bear its own costs, inducing riskier suits (in other countries, the losing party pays the winner's legal costs); and the extensive costs incurred during pretrial proceedings outside the direct supervision and limitation of the court. American judges frequently allow juries to decide whether honest mistakes are negligent, rather than approaching the situation logically through the rule of law — in other nations, judges are more likely to intercede and bring the process under control. In Europe in particular, plaintiffs must identify particular acts of negligence or show precise connections between an inferred negligent act and an actual injury. Finally, in most other countries, lost income and medical expenses are already covered by the state; in the United States these must be privately funded. Study after study shows that administering the medical malpractice system is far costlier in the United States — a system that does little if anything to deter an emotional or angry patient or stakeholder from deciding to sue a doctor or nurse for any reason. Research suggests that if a European model of discovery, proof, and removal of emotion and retribution from the legal process were adopted, over 75 percent of U.S. cases would never enter the legal system (Epstein, 2009).

How serious are these costs? Their effects on the medical profession appear significant in many ways, including causing some doctors and nurses to refuse to participate in certain lines of care — gynecology, for instance, which carries a higher than average risk of legal suits — or leading doctors and nurses to leave certain states or even exit the medical field entirely, a tragedy given the expense and time invested in their training.