Medication errors, infection mismanagement, mistakes in charting or documents, lack of proper documentation and the mishandling of patient falls compose the five major rationales for negligence or malpractice lawsuits against nurses, professional trade associations, government agencies and policymakers say.
The National Practitioner Data Bank, The Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the American Nurses Association (ANA), lawmakers behind the states’ Nurse Practice Act and the Centers of Disease Control and Prevention (CDC), researchers and experts say a lack of compliance with standards of health care, irresponsible equipment use; miscommunication; documentation failure; mistakes of assessment and monitoring and failure to protect or represent patients.
Malpractice and Negligence
JCAHO defines the legal term “negligence” as a “failure to use such care as a reasonably prudent and careful person would use under similar circumstances.” The accreditation agency describes the term “malpractice” as “improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position.”
Malpractice allows a plaintiff to seek damages against a defendant and is codified in state nurse practice laws, professional policies such as the ANA’s “Code for Nurses” or individual hospital rules and federal regulations such as JCAHO’s standards. In terms of punitive or monetary damages, court cases against nurses range from $1,000 to millions of dollars.
These nursing administration errors do not comprise deliberate crimes such as assault, battery or false imprisonment, though nurses have been known and reported to have been arrested and prosecuted for such acts, further complicating the picture.
Experts say a lack of compliance with standards of care on the part of a nurse is constituted by not performing a comprehensive assessment of patient admissions or creating a plan of care, not maintaining protocols, policies or procedures of care such as not utilizing an appropriate spot for injection or not adhering to a doctor’s verbal or written orders.
Irresponsible equipment use by a nurse includes failure in acting in accordance with a manufacturer’s directives for usage, examining for safety before use, setting up prior to treatment or investigating proper function.
Miscommunication means not informing a doctor in time about the development of a patient’s poor health condition, failure to hear and act on a patient’s complaints, not successfully communicating with a patient or not contacting authorities before administering a particular type of treatment.
Her documentation failures include mistakes or negligence in monitoring and reporting a patient’s recovery and reaction to treatment, a patient’s injuries, updated nursing assessment data, a doctor’s orders or information gleaned from phone conversations with doctors, including the time, nature of the exchange and the acts performed.
A nurse’s mistakes of assessment and monitoring include failure to finish an assessment of a shift worked, to execute a plan of care, investigate a patient’s recovery and interpret a patient’s conditions and symptoms.
Her failure to protect or represent patients includes not properly examining discharge orders when a patient’s health requires it, not challenging illegible medical or incomplete orders or not preparing a safe patient care setting.
Causes of Lawsuits
In a day of work, a registered nurse, licensed practical nurse, advanced practice nurses, nurse anesthetists, nurse midwives and nurse practitioners — categories of professional nursing defined by the National Practitioners Data Bank (NPDB) — may encounter scenarios that potentially lead to lawsuits.
For example, a wet hospital room floor may trigger a patient’s fall; a rushed conversation between a nurse and a certified nursing assistant can create circumstances for mistakes in treatment, and; a drug without a label has resulted in in medication mistakes in the past.
A small percentage of errors committed by nurses actually result in injury to patients. Out of this small number of impacted patients, a smaller figure file lawsuits. Still, the percentage of suits brought against nurses in court are on the rise.
In 1994, national research from the NPDB between 1990 and 1993 showed that, as of 1990, about five nurses out of 10,000 were sued per year. Nurses in critical care and obstetrics and nurse practitioners accounted for the increase in malpractice and negligence lawsuits.
From 1998 to 2001, the NPDB reported that the number of malpractice payouts made by nurses rose from 253 to 413. Though nurse educators have made strides to inform nurses and student nurses of their legal and professional duties, this trend has not abated.
Policymakers say a series of developments factor into the increase in malpractice suits against nurses. They include delegation, early discharge, a national nursing shortage crisis and hospital downsizing, technological advances, greater autonomy and expanded duties of nurses and re-definitions of legal liability.
With respect to delegation, as a result of hospitals’ and health maintenance organizations’ (HMOs) budget cuts nationally, nurses are passing on more of their tasks to ancillary health care staff not licensed to perform such services. Under a healthcare facility’s policies or a particular state’s nurse practice laws, such delegation of tasks may be viewed as negligence.
Per early discharge, patients are being released from hospitals before fully recuperating from illness that would warrant greater nursing care. Nurses can face lawsuits for withholding care or for not referring patients to other professionals who can provide it.
With the national nursing shortage and reductions in hospital services and shutdowns, nurses have been forced to take on more duties or more patient cases than should be deemed feasible. The increased workload places them at risk of committing errors.
On the question of technological advances, nurses are required to train and learn a range of computer software and hardware functions, restrictions and safety rules. This change from nursing in days past has added to their healthcare burden as well as their base of knowledge and, in some cases, may encourage negligence.
A higher level of autonomy for some categories of nursing such as nurse practitioners, advanced practice nurses, nurse anesthetists, nurse midwives or nurses with master’s or doctoral degrees or in institutional leadership roles and an expansion of duties for such classifications have increased the risk of error and liability.
More consumer awareness may play a role. A more sophisticated patient base and the larger public are better informed and mindful of malpractice issues and may be positioned to detect improper health care than in decades past.
With greater responsibility comes greater accountability and transparency for all medical professionals. As a consequence of the expansion of duties for advanced practice nurses, courts hold them to a higher standard of care in the case of lawsuits.
Student Nurses
In addition to expanded definitions of liability, especially for advanced practice nurses, the prospect of malpractice and negligence lawsuits has been extended to students in nursing school.
With this modern legal atmosphere, student nurses can be held accountable for their conduct in a healthcare setting and can face lawsuits. This is because the standard of care that applies to registered nurses also goes for student nurses.
Nursing policy holds that, if a student cannot carry out her essential duties without supervision, then she should not perform them. Professional wisdom dictates student and professional nurses ought not take on responsibility for which they have not been trained.
Avoiding Lawsuits
To prevent from being sued, the American Nurses Association advises nurses to track their mode of healthcare delivery. They must stay current on the latest technologies, treatments, therapies, drugs and industry practice. This includes being conversant in professional standards, conduct and accreditation requirements.
To avoid errors in administering medicines, nurses are advised to use specific data, including accurate weight and height measurements, about particular patients to make sure they are the recipients of the right drugs.
Nurses should identify in advance any reactions or allergies with the patients. They ought to point out any conditions or diagnosis issues before administration. They must also update the lists of medications the patient uses.
To avert lawsuits, nurses must prevent and manage patient infections. The CDC reveals that infections make up 99,000 deaths in American hospitals. Nurses and their peers need to emphasize the importance of sound hygiene practices. They should take into account standard precautions, cleaning and disinfection and means of infection prevention.
On minimizing documentation errors, nurses should pay attention to detail in patient charts and other forms of data. They must record health and drug information, medications already administered, any discontinued drugs, nursing actions, changes in a patient’s recovery and any orders in terms a patient’s care. When in doubt, they ought to reach out to other medical professionals with more experience for sound advice.
Nurses are asked not to consult with doctors without possessing all of a patient’s data. The main objective is to be well-versed in a patient’s medical history and conditions to obtain assistance immediately or else nurses will come across to others as unprofessional.
To keep patients from falling, nurses must follow up with them in their assigned hospital rooms, particularly the ones who are the most accident-prone. Patients are most likely to fall when they leave their beds.
Day or night, nurses should ensure that all of a patient’s basic amenities are where he or she can find them so they don’t have to rise from their beds. They should assure patients that they are on hand to help whenever their assistance is needed.
Nurses should strive to be as approachable as possible when they inform their patients of this. The more reliable and available a nurse is, the more likely patients are to ask them for help instead of placing themselves at risk for falls.
Organization leaders say nurses ought to invest in liability insurance to mitigate risk. Liability insurance guards against the financial danger of lawsuits.
The ANA states that some nurses assume that a bosses’ insurance policy is sufficient. However, some hospitals are not up to date on the emerging role of the nurse in medicine and that an employer’s policy will not cover nurses outside of the workplace.
In some cases, hospitals will not vouch for the nurse in court. Their attorneys will prioritize their interests with that of the nurse coming in second place.
However, should a nurse confront a lawsuit, she should inform his or her employer and their insurance provider, the ANA says. The coverage provider and the employer will designate attorneys but, without liability insurance, she should seek out lawyers on her own.
To properly inform her insurance provider, the nurse should put the details of the incident for which she is being sued in writing to include the time, place, the chain of events and a list of the names and addresses of the victims and any witnesses. Once she receives documentation of the suit, the nurse must send all pertinent information to her insurer in a particular time frame.
SOURCES:
Anderson, Pamela, MS, RN, APN-BC, CCRN, Medication errors: Don’t let them happen to you, American Nurse Today, March 2010, Vol. 5, No. 3, https://www.americannursetoday.com/article-type/legal-ethics
Cheragi, Mohammad Ali; Manoocheri, Human; Esmaeil Mohammadnejad, and; Ehsani, Syyedeh R.; Types and causes of medication errors from nurse’s viewpoint. Iranian Journal of Nursing Midwifery Res. May to June 2013, 18(3): 228-231.
Croke, Eileen M. EdD, ANP, LNC-C, Nurses, Negligence and Malpractice. American Journal of Nursing, September 2003, Vol. 103, No. 9, p 54.
Hughes, Ronda G., Wolf, Zane Robinson, Patient Safety and Quality: An Evidence-Based Handbook for Nurses, https://www.ncbi.nlm.nih.gov/books/NBK2652/#__NBK2652_dtls__
Shinn, Linda J., MBA, RN, CAB, Yes, You Can Be Sued, American Nurses Association journal, http://ana.nursingworld.org/mods/archive/mod310/cerm1abs.htm
Sohn, David H., Negligence, genuine error, and litigation. International Journal of General Medicine, 2013; 6:49-56, Published online Feb. 15, 2013.
The 5 Most Common Mistakes Made by New Nurses, http://www.nursejournal.org/articles/the-5-most-common-mistakes-made-by-new-nurses/#
