Leslie Joy T.

Tonio BSN 4A/Group 1

Nurses, Negligence, and Malpractice

Eileen M. Croke EdD, ANP, LNC-C AJN, American Journal of Nursing September 2003 Volume 103 Number 9 Page 54
DEFINING AND TRACKING MALPRACTICE

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) defines negligence as a "failure to use such care as a reasonably prudent and careful person would use under similar circumstances." JCAHO defines malpractice as "improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory. Malpractice is a cause of action for which damages are allowed."4 Malpractice is defined variously under state nurse practice acts, institutional policies, and federal guidelines such as JCAHO standards, all of which may be taken into consideration in court. Several factors have contributed to the increase in the number of malpractice cases against nurses. * Delegation. As a result of cost-containment efforts in hospitals and HMOs, nurses are delegating more of their tasks to unlicensed assistive personnel. Delegation of some of these tasks may be considered negligence according to a given facility's standards of care or a state's nurse practice act. * Early discharge. Patients are being discharged from hospitals at earlier stages of recovery and with conditions requiring more acute and intensive nursing care. Nurses may be sued for not providing care or not making referrals appropriate to the patient's condition. * The nursing shortage and hospital downsizing have contributed to greater workloads for nurses, increasing the likelihood of error. * Advances in technology require nurses to have knowledge of a variety of technologies' capabilities, limitations, and safety features. * Increased autonomy and responsibility of hospital nurses in the exercise of advanced nursing skills have also brought about greater risk of error and liability. * Better-informed consumers are more likely to be aware of malpractice issues and to recognize insufficient or inappropriate care. * Expanded legal definitions of liability have held all professionals to higher standards of accountability. For example, because of the expanded scope of practice of advanced practice nurses, courts have held them to a medical standard of care.
REDUCING POTENTIAL LIABILITY

"Nursing judgment involves the analysis of facts and circumstances on a case-by-case basis. To prevent malpractice, it is essential that the nurse undertake this evaluation with regard to

everything that he or she does in the clinical setting." Increasingly, nurses are held accountable to the public for their professional judgment and the outcomes arising from that judgment. Malpractice litigation is both professionally and emotionally devastating and can be financially disastrous. Each nurse can take steps to help reduce potential liability by using caution and common sense and by maintaining a heightened awareness of his or her legal responsibilities. The following can help nurses reduce potential liability. Maintain open, honest, respectful relationships and communication with patients and family members. * Patients are less likely to sue if they feel that a nurse has been caring and professional. * Don't offer opinions when a patient asks what you think is wrong with him-you may be accused of making a medical diagnosis. * Don't make a statement that a patient may interpret as an admission of fault or guilt. * Don't criticize health care providers or their actions when you are with patients. * Maintain confidentiality in the health care setting. Maintain competence in your specialty area of practice. * Attend relevant continuing education classes. * Attend relevant hospital in-service programs. * Expand your knowledge and technical skills. Know legal principles and incorporate them into everyday practice. * Keep up to date on your state's nurse practice act. * Keep up to date on hospital policies and procedures. Practice within the bounds of professional licensure. * Perform only the nursing skills allowed within your scope of practice and that you are competent to perform. Know your strengths and weaknesses. Don't accept a clinical assignment you don't feel competent to perform. * Evaluate your assignment with your supervisor * Accept only those duties you can perform competently * Let an experienced nurse on the unit assume responsibilities for the specialized duties. * Document all nursing care accurately. * If care is not documented, courts assume it was not rendered. * When documenting care on the patient's chart, use the FACT mnemonic: be f actual, a ccurate, c omplete, and t imely.

Six Major Categories of Negligence That Result in Malpractice Lawsuits

Failure to follow standards of care, including failure to

* perform a complete admission assessment or design a plan of care. * adhere to standardized protocols or institutional policies and procedures (for example, using an improper injection site). * follow a physician's verbal or written orders. Failure to use equipment in a responsible manner, including failure to * follow the manufacturer's recommendations for operating equipment. * check equipment for safety prior to use. * place equipment properly during treatment. * learn how equipment functions. Failure to communicate, including failure to * notify a physician in a timely manner when conditions warrant it. * listen to a patient's complaints and act on them. * communicate effectively with a patient (for example, inadequate or ineffective communication of discharge instructions). * seek higher medical authorization for a treatment. Failure to document, including failure to note in the patient's medical record * a patient's progress and response to treatment. * a patient's injuries. * pertinent nursing assessment information (for example, drug allergies). * a physician's medical orders. * information on telephone conversations with physicians, including time, content of communication between nurse and physician, and actions taken. Failure to assess and monitor, including failure to * complete a shift assessment. * implement a plan of care. * observe a patient's ongoing progress. * interpret a patient's signs and symptoms. Failure to act as a patient advocate, including failure to * question discharge orders when a patient's condition warrants it. * question incomplete or illegible medical orders. * provide a safe environment.
What To Do If You Are Served with a Complaint First: notify your insurance carrier.

A complaint is a legal pleading made by a plaintiff to initiate a lawsuit. It includes a formal statement of the charges and the alleged cause or causes of action against the defendant. This document may be the first indication a nurse has that she's being named as a defendant in a civil

lawsuit. Once the complaint has been served, the nurse must notify her employer and liability insurance carrier. Usually the insurance carrier and the employer will assign attorneys to the case, but if the nurse doesn't have liability insurance, she should engage the services of an attorney. The nurse must also refrain from discussing the case with anyone but the assigned defense attorney. When notifying her liability insurance carrier, the nurse should give a written description of the event, including the time, place, and circumstances surrounding the incident, as well as a list of the names and addresses of the injured party or parties and any witnesses. Once served, the nurse must forward all relevant documents to the insurance carrier within the specified time period set forth in the liability insurance policy. If the nurse does not notify the insurer within the specified time period, the insurer may deny coverage to the nurse. Reference: article_id=423284 http://www.nursingcenter.com/library/journalarticle.asp?

Nursing Legal Issues: How to Protect Yourself

With any professional license comes ethical and legal responsibility. Doctors take the Hippocratic Oath pledging to do no harm to patients; lawyers are held responsible for their clients in court; and architects are responsible for the safety of the structures they build. Nurses are no different. Whether it's administering a medication incorrectly or failing to obtain an informed consent from a pre-op patient, nurses may be held legally responsible if they fail to meet certain standards.

Five Legal Issues in Nursing: What Every Nurse Should Know

All nurses should be familiar with nursing law and ethics and understand how nursing legal issues can affect them. Know your basic nursing laws and avoid lawsuits and liability:

1. Signatures Are Golden

When a physician or other health care provider orders a procedure be done to a patient, it is the nurse's responsibility to obtain an informed consent signature. This means that the patient: Understands the procedure and the alternative options Has had a chance to ask the provider any questions about the procedure Understands the risks and benefits of the procedure Chooses to sign or not sign to have the procedure performed.

If the nurse does not obtain signatures, both the nurse and the operating provider can be held liable for damages incurred.

2. Document, Document, Document

It is the nurse's responsibility to make sure everything that is done in regards to a patient's care (vital signs, specimen collections, noting what the patient is seen doing in the room, medication administration, etc.), is documented in the chart. If it is not documented with the proper time and what was done, the nurse can be held liable for negative outcomes. A note of caution: if there

was an error made on the chart, cross it out with one line (so it is still legible) and note the correction and the cause of the error.

3. Report It or Tort It
Allegations of abuse are serious matters. It is the duty of the nurse to report to the proper authority when any allegations are made in regards to abuse (emotional, sexual, physical, and mental) towards a vulnerable population (children, elderly, or domestic). If no report is made, the nurse is liable for negligence or wrongdoing towards the victimized patient.

4. Rights to Privacy
The nurse is responsible for keeping all patient records and personal information private and only accessible to the immediate care providers, according to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). If records get out or a patient's privacy is breached, the liability usually lies on the nurse because the nurse has immediate access to the chart.

5. You're Dosing WHAT?!

Medication errors account for 7,000 deaths and 770,000 patients injured each year in the US. It is the nurse's responsibility to follow the five "rights" of medication administration: right dose, right drug, right route, right time, and right patient. If a nurse pays attention to those details, the likelihood of a medication error is greatly reduced, thereby saving the nurse and health care institution from liability for damages. While these are some of the main issues nurses might face legally, you should visit your state nursing board's Website for more information. Another good source for nursing legal issues is the American Nurses Association Website. It has a Code of Ethics guide that may be purchased online. Reference: issues http://www.medi-smart.com/nursing-articles/nursing-law/legal-

Legal Issues in Psychiatric Nursing

By Jennifer Leigh, eHow Contributor
Psyciatric nurses benefit from understanding the law.

Psychiatric nurses provide a variety of services to mental health patients, according to the Bureau of Labor Statistics. Because of this, psychiatric nurses can face a number of legal concerns as well. To make sure they're legally protected, it is important for psychiatric nurses to stay up-to-date on legal and ethical issues in their field.

Patients' Rights

 Psychiatric nurses must follow certain legal standards pertaining to patients' rights. Patients have the right to treatment in a public hospital, and they have the right to refuse treatment if they are deemed mentally competent by a judge in a court of law. Patients also have the right to informed consent, which means they must understand why they are being treated, understand their treatment options and sign an informed-consent agreement to be treated.

Confidentiality
According to the American Nurses Association (ANA) 2001 Code of Ethics for Nurses, psychiatric nurses have a duty to protect the confidentiality of patients. Patient information cannot be released without the patient's consent, unless it is necessary to complete treatment or if the patient is threatening his life. Other exceptions include mandated reporting of child or elder abuse and a subpoena of mental health records.

Standard of Care
Psychiatric nurses have a standard of care established by the ANA, state licensing boards and hospital policies and procedures. This standard of care mandates that patients be treated a certain way or the nurse could face legal issues or loss of license. Examples of standards of care include treating the patient with dignity, honoring self-determination, and respecting the individuality of each patient.

Negligence and Malpractice

If a patient is injured while in a psychiatric nurse's care, the nurse may face legal issues related to negligence or malpractice, which indicate that the nurse did something that caused harm to the patient. To prove negligence or malpractice, it is necessary to explain the nurse's original duty, show how this duty was not met, and identify the cause of harm to the patient. The patient's physical harm is considered, along with mental pain or suffering she may have endured.
Read more: Legal Issues in Psychiatric Nursing http://www.ehow.com/list_6717618_legal-issues-psychiatricnursing.html#ixzz1NSnpw5Rl | eHow.com

Legal Issues for Nurses

Nurse Practice Act Obtain a copy of the Nurse Practice Act from your State Board of Nursing. This is the standard that will be used if a malpractice suit is filed. Be familiar with the applicable acts and duties of the personnel in your area of practice, which will vary from state to state.
Can an LPN care for patient with a Swan-Ganz catheter? Can an LPN hang a piggyback with 50 cc's of fluid in it or push IVmeds? Can an RN remove chest tubes, manipulate Swan-Ganz, etc.? What are the duties of a nurse's aid and/or tech and are the RN's liable?

The answers to these types of questions can be found in your Nurse Practice Act. If you don't have one, request one now and if you relocate, request a new one with your license. Policy and Procedure Manuals Review and always double check both the general nursing manual as well as any that pertain to your specific area of practice. If your hospital's policy differs fro the Nurse Practice Act, follow the guidelines in the Nurse Practice Act. i.e.: If your institution allows unlicensed personnel to insert foley catheters, but the policy found in the Nurse Practice Act requires that insertion by performed by licensed personnel only, the licensed nurse should insert the foley. Remember, if there is a negative outcome, the licensed nurse will be judged by the standards of the Nurse Practice Act. Insurance This is a must-have. Shop around for a policy that suits your needs. There are two types: Occurrence Type: means the company that covered you during the period of the occurrence will be responsible for damage and expenses. Claims Type: means the company will cover any claims made while the policy is in effect, no matter when the occurrence happened. Questions to ask the company representative include: "Can I select my own attorney to represent me?" "Does your company routinely settle claims or can I have my day in court?" Education Continuing education is a must. Not only does it keep you abreast of the most current changes and innovations in your specialty area, it is an area that attorneys will investigate if a claim is filed. License and Certifications These must remain current at all times. This is another area that attorneys will investigate if a claim is filed. Terms To Know Negligence: failure to act as a reasonably prudent person would act under the same circumstances --- failure to do something --- to do something carelessly or recklessly Malpractice: negligence by a professional Assault: a threat or attempt to inflict bodily harm combined with the ability to commit the act. i.e.: "if you move one more inch, I'll tie you to the bed." Battery: intentional harmful or offensive contact that occurs without consent (use of restraints without an order or a written policy of protocol). Libel: publication of defamatory statements (Nurses Notes will be scrutinized for libel.) Slander: oral defamatory statements (can be words or gestures) Statute of Limitations: there are periods defined by state statute during which you may file a claim or it is forever barred (the clock starts at the time of the occurrence or at the time the

occurrence was discovered or should have been discovered, such as a lap sponge left in a patient's abdomen that was discovered several years post operatively). Informed Consent: permission given for a proposed treatment or procedure following full disclosure of risks, benefits, and alternatives by the physician --- when you are asked to sign your name as a witness on the consent form. Remember you are witnessing the patient's signature only Physician Orders Telephone Orders: Repeat each order to verify what you heard is what was ordered. Illegible Orders: Ask the physician for the interpretation. NEVER GUESS! Inappropriate Orders: Inform the physician of the policy and standards. If the physician insists that the order be completed, contact the supervisor immediately. Communication
- Be honest.

- Don't be afraid to apologize if an apology is needed. - Be a good listener. Sometimes it isn't what they say, but how they say it. - A little PR goes a long way. - Schedule time each shift to speak with the patient and his family. - The medical record is the ultimate communication tool. Remember, most lawsuits are filed simply because the patient or the family isn't happy. Good communication skills can alleviate this. Documentation - Be accurate, objective, and complete. - Beware - negative charting (check lists) may not hold up in court. It is beneficial to document in narrative form a complete assessment at least once during your shift as well as any event. Many courts still feel that if you didn't chart it, you didn't do it. - Use only approved abbreviations (found in the Policy and Procedure Manual). - If you make an error, draw a line through it and write "mistake in entry" followed by your initials. Do not write "error" as it has a negative connotation. - Document calls to physicians noting the time the page was made or the call was placed, as well as the time the call was returned and the physician's response. - Document all teaching. If family members are present, list their names in your note. - Document the review of "discharge instructions" including the review of any medications prescribed and any handouts provided is of utmost importance. - Document all patient comments regarding their condition, both the positive and negative ones. - Record the effects of medications as well as the med, dose, time, route and reactions to treatments and your response. - If something unusual occurs, record all pertinent information in your notes, them complete an incident report. Do not mention the incident report in your notes.

- If you perform a procedure on a patient assigned to another nurse, you must document your actions in the patient's chart. - Not every treatment or procedure that you perform or assist with is going to have a positive outcome. If there is a negative outcome, document the details truthfully in your notes and if necessary, complete an incident report.
Reference: http://www.medi-smart.com/nursing-articles/nursing-law/qrs1

Rosal T. Bagadiong BSN 4A/ Group 1

Professional Negligence

Refers to the commission or omission of an act, pursuant to a duty, that a reasonably person in the same or similar circumstance would or would not do, and acting or the non-acting of which is the proximate cause of injury to another person or his property. Elements of Professional Negligence Existence of a duty on the part of the person charged to use due care under circumstances. Failure to meet the standard of due care. The foreseeability of harm resulting from failure to meet standard. The fact that the breach of this standard resulted in an injury to the plaintiff.

Specific Examples of Negligence

1. Failure to report observations to attending physicians. 2. Failure to exercise the degree of diligence which the circumstances of the particular case demands. 3. Mistaken identity. 4. Wrong medicine, wrong concentration, wrong route, wrong dose. 5. Defects in equipments that may result in injuring the patients. 6. Errors due to family assistance. 7. Administration of medicine without a doctor prescription. The Doctrine of Res Ipsa Loquitor 1. The thing speaks for itself. 2. It means that the nature of the wrongful act or injury is suggestive of negligence 3. Three conditions are required to establish a defendants negligence without proving specific conduct. That the injury was of such nature that it would not normally occur unless there was a negligent act on the part of someone. That the injury was caused by an agency within the control of the defendant That the plaintiff himself did not engage in any manner that would tend to bring about the injury. Malpractice you do things beyond your scope of practice also denotes stepping beyond ones authority with serious consequences.

Doctrine of Force Majeure It means an irresistible force, one that is unforeseen or inevitable. you cannot stop it from happening circumstances such as floods, fire, earthquakes and accidents fall under this doctrine

Doctrine of Respondeat Superior let the master answer for the acts of the subordinate the liability is expanded to include the master as well as the employee and not a shift of liability from the subordinate to the master this doctrine applies only to those actions performed by the employee within the scope of his employment Incompetence is the lack of ability, legal qualifications or fitness to discharge the required duty. Although a nurse is registered, if in the performance of her duty she manifests incompetency, there is ground for revocation or suspension of her certificates of registration. Liability of Nurses for the Work of Nursing Aides Nursing aides perform selected nursing activities under the direct supervision of nurses. Nurses should not delegate their functions to nursing aides since the Philippine Nursing Act specifies the scope of nursing practice of professional nurses. If a nurse delegates, he is responsible.

Liability for the Work of Nursing Students Under the Philippine Nursing Act of 2002, nursing students do not perform professional nursing duties. They are to be supervised by their Clinical Instructors. Assumption of Risk A nurse cannot bring suit against the patient if she gets hurt or contacts the disease since upon accepting the case, the nurse agreed to assume the risk of harm or infection.

Consent Is defined as a free and rational act that presupposes knowledge of the thing which consent is being given by a person who is legally capable to give consent. It is the NURSE who actually secures the consent of the patient upon admission.

Informed Consent it is established principle of law that every human being of adult years and sound mind has the right to determine what shall be done with his on body Essential elements of Informed Consent 1. Diagnosis and explanation of the condition 2. A fair explanation of the procedures to be done and used and the consequences 3. A description of alternative treatment or procedures 4. A description of benefits to be expected 5. Material rights if any 6. The prognosis, if the recommended care, procedure, is refused. Proof of Consent A written consent should be signed to show that the procedure is the one consented to and that the person understands the nature of procedure A signed special consent is necessary before any medical or surgical treatment is don such as x-rays etc. Who Must Consent Normally the patient himself is the one who gives the consent, If he is incompetent (minors or mentally ill) or physically unable, consent must be taken from another who is authorized to give it in his behalf.

Consent of Minors Parents, or someone standing in their behalf If emancipated minor consent is signed by them.

Consent of Mentally Ill They cannot legally give consent. Parents or guardians.

Emergency Situation When an emergency situation exists, no consent is necessary because inaction at such time may cause greater injury. Refusal to Consent Patients other than those who are incompetent to give consent can refuse consent. If refuses to sign, this should be noted in his chart

Consent for Sterilization Is the termination of the ability to produce offspring. The husband and wife must consent to the procedure if the operation is primarily to accomplish sterilization. If its medically necessary or an incidental result, the patient alone is sufficient.

Medical Records As a record of illness and treatment, it saves duplication in future cases and aids in prompt treatment It serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or condition of patient and its management. If it was not charted, it was not observed or done. Nurses have the responsibility of keeping the patients right to confidentiality. Permission has to be taken from the Medical Records Division of the Hospital.

Intentional Wrongs nurse may be held liable for intentional wrongs

Torts is a legal wrong, committed against a person or property, independent of a contract which renders the person who commits it liable for damages in a civil action.

The person who has been wronged seeks compensation for injury or wrong he has suffered

Examples of Torts are: 1. Assault and Battery Assault is the imminent threat of harmful or offensive bodily contact; banta Battery is an intentional, unconsented touching of another person. Unjustifiable detention of a person without legal warrant within the boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement 1. Invasion of Right to Privacy and Breach of Confidentiality. The right to privacy is the right to be left alone, the right to be free from unwarranted publicity and exposure to public view 1. Defamation Character assassination, be in written or spoken Slander is oral defamation of a person by speaking unprivileged or false words by which his reputation is damaged. Libel is defamation by written words, cartoons or such representations that cause a person to be avoided, ridiculed or held in contempt or tend to injure him in his work.

1. False Imprisonment or Illegal Detention

The Law of Nursing Malpractice

By Mark A. Abramson and Kevin F. Dugan

I. Introduction: Nearly twelve years ago, Erline A. Reilly wrote that "most New Hampshire attorneys know nothing about nursing law."1 As a lawyer and a registered nurse, Attorney Reilly had a unique insight into this issue. Hopefully, this article will update us all and provide the appropriate framework for the analysis of potential nursing malpractice cases. Attorney Reilly's 1984 article examined a wide variety of legal issues relevant to the nursing profession. This article will focus specifically on the concept of nursing malpractice. As attitudes toward the nursing profession have evolved over recent years, so too has the law. Nurses are increasingly being named as defendants in medical negligence cases. New Hampshire practitioners need to be aware of the relevant developments in the area of nursing malpractice. This article analyzes the current state of the law with particular emphasis on liability issues and the practical problems relating to the representation of nurses. With respect to liability, areas covered are the appropriate standard of care applicable to nurses, how and by whom the standard of care must be established, examples of nursing negligence, and unique causation issues arising from nursing negligence. The separate issue of legal representation is then analyzed in the context of conflicts arising from common representation of the nurse and his or her employer.

During the past three decades, courts have shifted the standard applied to cases of nurse liability. Early decisions held nurses to a standard of common negligence. More recent decisions, recognizing nurses' increased responsibilities in the modern hospital setting, hold nurses to a standard of professional malpractice. II. Background: In 1964, the Kansas Supreme Court stated that the primary function of a nurse "is to observe and record the symptoms and reactions of patients."2 Thus, "[a] nurse is not permitted to exercise judgment in diagnosing or treating any symptoms which the patient develops."3 In accord with this view, the court held that when a nurse fails to exercise due care in the treatment of a patient, the proper cause of action was one of ordinary negligence rather than malpractice.4 Only two decades later, the New York Court of Appeals recognized a more modern view of nursing practice and rejected the "ordinary negligence" standard. While courts have in the past held that a nurse could be liable for negligence, but not for malpractice, "the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services." In recognition of the modern scope of nursing practice, the court held that a nurse may be held liable for malpractice. In New Hampshire, nurses are explicitly within the scope of the medical injury statute.As a result, virtually any negligent act or omission committed by a nurse in the course of rendering professional services is considered malpractice. In order to prove a case of nursing malpractice under the New Hampshire medical injury statute the plaintiff must establish through expert testimony the applicable standard of care, a failure to act in accordance with the standard of care, and legal causation of a medical injury11.

III. Nursing Malpractice A. Standard of Care The New Hampshire medical injury statute defines the standard of care applicable to nurses as the standard of reasonable professional practice in existence at the time the medical care in question was rendered. If the nurse is a specialist, the nurse's conduct must be compared with the reasonable practice of a similar specialist. In 1971, New Hampshire abandoned the idea of restricting the standard of care to a specific geographic area or locality. Prior to this, the "locality rule" required the plaintiff to establish, for example, "the standard of care for . . . nurses in the community of Manchester, New Hampshire." Under R.S.A. 508:13, however, a national standard of care controls. The standard of care applicable to a nurse in New Hampshire, therefore, is that which was reasonably expected of a similarly situated nurse at the time of the negligent conduct without regard for the peculiarities of local practice.

In most cases the relevant standard of care is determined with reference to the specific facts of the case. Understandably, courts have been hesitant to establish overriding principles of appropriate nursing conduct. One example of a rule of general application which has been hotly debated involves the nurse's "advocacy role." The issue is whether a nurse has a duty to take action when she disagrees with a physician's order. Early on, it was understood that a nurse could not use independent judgment and that she was only to observe the patient and report to the physician. 18 This attitude was reflected in the 1962 case of Carrigan v. Sacred Heart Hospital, when the New Hampshire Supreme Court held that, under the circumstances presented, the hospital nurses were not required to disregard a physician's orders or seek to have them changed. However, as the courts began to recognize the true extent of the nurse's involvement in patient care, it became widely accepted that the exercise of independent judgment should not be discouraged. Recently, the Ohio Supreme Court addressed the issue: A nurse who concludes that an attending physician has misdiagnosed a condition or has not prescribed the appropriate course of treatment may not modify the course set by the physician simply because the nurse holds a different view. However, the nurse is not prohibited from calling on or consulting with nurse supervisors or with other physicians on the hospital staff concerning those matters, and when the patient's condition reasonably requires it the nurse has a duty to do those tasks when they are within the ordinary care and skill required by the relevant standard of conduct. Since there was expert testimony in the record showing that the nurse should have taken action to override the physician's orders, a jury question was created. Similarly, in a South Dakota case, both the plaintiff's and the defendant's experts agreed that a nurse has a duty "to communicate changes in the patient's condition to the physician and 'go further' if her concerns are not sufficiently or appropriately answered by the physician." The jury was therefore entitled to impose liability based on the nurses' failure to do so. The foregoing demonstrates the difficulties inherent in devising a rule of general application in nursing malpractice cases. The former understanding that a nurse must follow a doctor's orders without employing independent judgment has been rejected in favor of a more realistic approach. The jury is now permitted to decide whether the standard of care required the nurse to seek to override the physician's orders. The peculiarities of each particular case drive the inquiry. B. Necessity of Expert Testimony Expert testimony is required to establish the appropriate standard of care. Such testimony may be provided by a registered nurse with relevant experience a nurse who holds a teaching position, or even a physician with appropriate qualifications. In fact, defendant physicians frequently provide invaluable testimony on the nurse's standard of care as they attempt to deflect blame from themselves. In Carrigan, the Supreme Court addressed the competency of the plaintiff's expert witness. In that case, the plaintiff's expert was the decedent's daughter who was employed as a nurse by the defendant hospital. She testified that the failure to place side boards on the patient's bed did not conform to the standard of care. The Supreme Court held that this testimony was insufficient to establish the standard of care because the opinion did not take into account the fact

that the bedrails had been removed by doctor's order. Since the daughter did not testify that bedrails are required in all cases no matter what the attending physician had ordered, the issue of nursing malpractice was properly taken from the jury. C. Breach of Standard of Care The articulation of the standard of care establishes the breach. For example, when you present expert testimony that the standard of care requires that a nurse observe a post-operative patient at least every fifteen minutes for the first hour, you already know that the nurse failed to do so. As a general matter, therefore, there is no meaningful distinction between proving the standard of care and proving a breach. Acts or omissions constituting a breach of the nursing standard of care have been found in numerous situations. Because few concrete rules can be found, some random examples may be helpful. In Little Rock, Arkansas, a nurse was found to have breached the standard of care in an outpatient hemodialysis facility when she purposefully left the dialysis needles in the patient's arm after treatment and called him a "black son of a bitch."Although the patient's repeated disruptive and abusive conduct placed him 40% at fault, the nurse's behavior "did not conform to the high standards we necessarily expect of those in the nursing profession. Under extreme provocation, she engaged in language and conduct unacceptable in a highly trained profession." Another combative relationship resulted in malpractice liability for a Kansas nurse. In that case, a husband with concerns about his wife's labor repeatedly attempted to get the nurse to call a doctor. Apparently engrossed in a magazine article, the nurse on several occasions refused to do anything saying that she was in charge and she would decide what was necessary. When delivery began, the nurse acted too late and had to deliver the baby herself with the help of a doctor who happened to be walking by. A jury verdict against the nurse was upheld on appeal with the court noting that the jury could properly take into account the "antagonistic verbal exchange" between the nurse and the husband. Other less extreme examples of nursing malpractice include the failure to take vital signs of post-operative patient often enough36, the failure to delay a patient's discharge when the patient had an elevated temperature37, the failure to recognize signs of neonatal hypoglycemia 38, the failure to properly monitor the patient's blood sugar level, and the failure to summon additional assistance to help a post-operative patient from the bathroom back to her bed. D. Causation Although nursing malpractice cases involve the same difficult proximate cause issues as other medical negligence cases, there are also unique problems which arise. A line of Ohio cases is illustrative. In 1990, the Ohio Supreme Court addressed the causation issue in the context of a nurse's failure to keep the attending physician sufficiently informed of the patient's condition. In such a case, even assuming a breach of the standard of care, the plaintiff "must prove that, had the nurse informed the attending physician of the patient's condition at the proper time, the physician would have altered his diagnosis or treatment and prevented the injury to the patient." Thus, when the attending physician testified that she would not have arrived any sooner if she had been notified of the patient's condition, any breach on the part of the nurse was not causal. Three years later the Ohio court addressed the causation issue from a slightly different viewpoint. The court had previously held that there are certain instances in which the duties of the nurses and the duties of the physician could be found to overlap. Thus each had a legal duty

to recognize the patient's pregnancy complications. Since the physician had already stipulated to being negligent in failing to do so and to the causality of his negligence, the defendant hospital argued that any negligence on the part of its nurses could not possibly be causal. The court disagreed holding that the intervening negligence of an attending physician does not absolve a hospital of its prior negligence if both co-operated in proximately causing an injury to the patient and no break occurred in the chain of causation between the hospital's negligence and the resulting injury. In order to break the chain, the intervening negligence of the physician must be disconnected from the negligence of the hospital and must be of itself an efficient, independent, and self-producing cause of the patient's injury. Several months later, the Ohio Court of Appeals had an opportunity to apply both of the Supreme Court's causation decisions in a case involving nurses' failure to chart circulation checks. Because the defendant physicians testified that they would not have altered their diagnoses or treatment even if the checks had been documented, the Supreme Court's 1990 decision would require summary judgment in favor of the nurses. Consequently, the plaintiffs relied on expert testimony establishing that a reasonably prudent physician would have altered his diagnosis or treatment if the nurses had properly charted the checks. The court analyzed the causation issue with reference to the Supreme Court's 1993 opinion to decide whether the doctors' negligence was "an efficient, independent and selfproducing cause of the plaintiff's injury" sufficient to break the chain of causation. The nurses' alleged negligent acts all occurred before 3:50 p.m. on January 24, 1988. Dr. Boll and Dr. Hickman committed negligent acts not only on that day, but also during the next two days when despite the absence of negligence by others, they failed to properly diagnose and timely treat [plaintiff's] further developing compartment syndrome. The physicians' continued acts of negligence operated to break the chain of causation between the nurses' acts and [plaintiff's] injuries. After 3:50 p.m., the nurses committed no negligent acts co-operating with the physicians' negligent acts. IV. Practical Issues As nurses increasingly find themselves named as individual defendants in medical malpractice cases, issues related to legal representation arise. Hospital nurses covered under the liability policy of their employer find themselves represented by an attorney whose client is actually the hospital. The potential for an impermissible conflict of interest is manifest under these circumstances since the interests of the nurse are often quite different from those of the hospital. Separate legal representation is required if the representation of one client will have an adverse effect on the representation of another. The divided loyalties of hospital counsel present such a situation. Nurses need personal counsel to protect their individual interests. For example, discovery issues, including possible assertions of privilege, may be very important to the nurse personally but not very important to the hospital. In addition, situations may arise where the hospital's trial strategy reflects poorly on an individual nurse who feels strongly that she was not at fault. Or a nurse may be very interested in settling a claim to avoid personal exposure while the hospital would prefer to try the case. As is mentioned above, a physician will often blame the nursing staff for a medical injury. When the physician is an employee of the hospital or may be considered an agent whose negligence will be legally imputed to the hospital, the interests of the nurses are frequently sacrificed. The mere possibility of divided loyalty should raise the question whether common representation is permissible. There is little doubt that conflicting interests among defendants in

medical negligence cases are a very real problem. The nurse's interests would be better protected by personal counsel in nearly every case. V. Conclusion As with most forms of medical negligence, you will often know nursing malpractice when you see it. However, to see it, you must be looking for it. The foregoing is intended to alert the practitioner to the basic issues involved so that medical injury cases may be properly evaluated and prepared.
Reference: http://www.arbd.com/the-law-of-nursing-malpractice

Nursing Legal Issues

Representation If Sued As their professional roles expand, nurses are naturally becoming more vulnerable to the types of lawsuits that have plagued physicians for years. Malpractice is the legal term for negligence by any licensed professional. Case law began recognizing nurses as professionals in the mid-1970s, and has lately come to see registered nurses as "assertive, decisive healthcare providers," according to a 1985 New York appellate court opinion." [Nurseweek, May, 2000] With the exception of advanced practice nurses in private practice, and the ever growing ranks of nurse entrepreneurs, most nurses continue to function as employees. While it has generally been the accepted practice of nurses to be covered under the umbrella policy of their employer this gives rise to potential conflicts of interest and may not be in the best interests of the nurses. As nurses increasingly find themselves named as individual defendants in medical malpractice cases, issues related to legal representation arise. Hospital nurses covered under the liability policy of their employer find themselves represented by an attorney whose client is actually the hospital. The potential for an impermissible conflict of interest is manifest under these circumstances since the interests of the nurse are often quite different from those of the hospital. Separate legal representation is required if the representation of one client will have an adverse effect on the representation of another. The divided loyalties of hospital counsel present such a situation. Nurses need personal counsel to protect their individual interests. For example, discovery issues, including possible assertions of privilege, may be very important to the nurse personally but not very important to the hospital. In addition, situations may arise where the hospital's trial strategy reflects poorly on an individual nurse who feels strongly that she was not at fault. Or a nurse may be very interested in settling a claim to avoid personal exposure while the hospital would prefer to try the case.

As is mentioned above, a physician will often blame the nursing staff for a medical injury. When the physician is an employee of the hospital or may be considered an agent whose negligence will be legally imputed to the hospital, the interests of the nurses are frequently sacrificed. The mere possibility of divided loyalty should raise the question whether common representation is permissible. There is little doubt that conflicting interests among defendants in medical negligence cases are a very real problem. The nurse's interests would be better protected by personal counsel in nearly every case. Providing excellent nursing care may not prevent you from being named in a malpractice suit, but having the sense to carry your own individual professional liability insurance policy will certainly help relieve worries about adequate representation as well as help protect your best interests!
Reference: http://www.medi-smart.com/nursing-articles/nursing-law/nursingrepresentation-if-sued?page=2

Ethical and Legal Issues in Nursing

When to contact the Nursing Supervisor (NS)
1. A nurse questions an order but the Physician can not be located, the nurse should then

CONTACT the NURSING SUPERVISOR. Under no circumstances should the nurse carry out the order without clarification.
2. Under the Nurse Practice Acts, impaired nurses on the job should be reported to the

Nursing Supervisor. The NS will then report it to the Board of Nursing or Police as required. Security should only be called if a disturbance occur.
3. Nurses can not be a witness to a living will/advance directives (Patient Self-

Determination Act). Ask the NS to seek assistance for the client (usually a clinical social worker). 4. Report all sexual harassments to NS immediately. Examples of legal torts: 1. Invasion of Privacy example: a nursing student observing a procedure without the client's consent or taking photos of the client. 2. False imprisonment example is telling the client that he/she may not leave the hospital or the use of restraints. 3. Battery example: performing procedure without consent such as resuscitation.
4. Do not resuscitate (DNR) should be reviewed every 3 days for hosptialized clients and

every 60 days for residential clients.

5. when the word threatens is in the question= it's assault 6. Defamation (Slander): something untrue was said to ruin the reputation of a person. 7. Defamation (Libel): something untrue was written to ruin the reputation of a person.

INFORMED CONSENT:
1. IN ONLY TWO INSTANCES where the INFORMED CONSENT is not needed:

emergency (where the client's life is endanger) and when the client waives the right to give informed consent.
2. A client under medications that affects their cognition, should not be asked to sign a

consent. Legally the client must be emotionally and mentally competent to sign consent.
3. a nurse can witness the client signing the informed consent. 4. Mentally or Emotionally INcompetent Clients: declared imcompetent, unconcious,

under the influence of alcohol/drugs, chronic dementia or other mental deficiency REPORTING 1. The nurse must report situations of child/elderly abuse, gunshot wounds, suicides, and infectious diseases to the proper personnel. OTHERS
1. Jehovah's Witness: may accept an organ transplant but the organ must be cleansed with a

nonblood solution. When giving medication to the client, think of the 5 rights C.T.D.M.R. right Client, right Time, right Dosage, right Medication, right Route (i think of the mneumonic as Connecticut (CT) Dept of Mental Retardation (DMR)....formally known..now it is CT Dept of Social Services (DSS))
Reference: documentation.html http://www.ehow.com/info_8245142_legal-issues-nurse-

Legal Issues in Nurse Documentation

By Helen Messina, eHow Contributor Nursing documentation must be conscientious, professional, truthful and precise to avoid liability.

Nursing documentation frequently reflects the most crucial parts of the medical record. If it is meticulous, appropriate and truthful, it supports quality medical care. It can also contradict information found elsewhere in the chart when questions of malpractice or negligence arise. Nursing documentation, whether in a hospital, clinic or physician's office, symbolizes a continuous accounting of signs, symptoms, complaints and the patient's response to physician's orders, treatments and interventions.

1. Nursing Documentation
Historically, the responsibility for medical care was strictly allotted to physicians. That is no longer the case as the public has become more aware of nursing's role in health care. Nurses are required to do more than simply follow physicians' orders. Nursing responsibilities include patient advocacy, even when the role is adversarial to the physician. Documentation begins the moment the patient arrives at the hospital, clinic or unit and continues until discharge. Documents include a complete nursing assessment, a nursing care plan, which outlines health care needs and goals, nursing interventions and responses and discharge instructions.

Nursing documentation furnishes a vital aspect to the continuity of medical care given over a specific period of time.

Legal Issues
State and federal legislation and statutes set the foundations for legal nursing documentation. Each state's Department of Health and Board of Nursing also set standards. Nursing practice standards and guidelines help formulate the scope of nursing practice and the level of responsibility the nurse is held to in a legal action. Legal claims against a nurse require evidence of a nurse-patient relationship, which confirms a duty to the patient. Additionally, proof is required that the nurse deviated from accepted practice in her duties and that the patient was injured as a result of the deviation.

Documentation Guidelines
Whether documentation is computer-based or handwritten, the requirements remain the same. Clear and concise documentation, finished within an appropriate time frame and based on first-person observations, reflects responsible professional judgment. Nursing documentation includes the facility's choice of forms and adherence to procedures and policies set by the facility. When legal issues arise, the nursing documentation becomes a central part of proving whether standards of care were met or not.

Medication Errors
Legal issues in nursing documentation regarding medication records and medication errors are common. When the wrong drug is administered, the wrong dose is given or the wrong mode of administration is used, a medication error has occurred that can have serious consequences for both the patient and the nurse. The failure of the nurse to monitor the patient for an appropriate response to medication, side effects or toxicity can result in harm to the patient. Following the physician's orders does not protect the nurse from legal action if or when the patient is harmed. It is the nurse's responsibility to provide a safe environment for her patient.
Reference: http://www.ehow.com/info_8245142_legal-issuesnursedocumentation.html#ixzz1NSiKVnvg