How nurses can reduce the risk of malpractice claims
This story was originally published on Aug. 23, 2014.
Most days, nurses have their hands full just taking care of their patients.
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They rarely have time to think about the risks involved in their profession, but they should, say Dawn M. Jones, RN, MSN, JD, an Atlanta attorney with 14-plus years nursing experience, who has done defense and plaintiff work involving medical malpractice, and Debra Meadows, RN, MSN, BSN, who as a legal nurse consultant for King and Spalding for more than 13 years, sees first-hand the many ways nurses can get into legal trouble.
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“We live in a litigious society. There are people who treat law suits like winning the lottery,” said Jones. “Nurses are at risk every day, and it pays to be aware of what could happen.”
Jones went through nursing school and worked in critical care while earning her clinical and nurse specialist degree. She worked as charge-nurse during the night shift for intensive care units at two different hospitals during a time of hospital budget cuts. “We were short-staffed and stretched thin, and I suddenly realized how at-risk I was,” said Jones. “Sitting in the parking lot late one night, I thought if I lost my nursing license, I wouldn’t be able to work and would have to retrain for a different occupation. That night changed my life.”
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Jones enrolled and graduated from the part-time law program at Georgia State University. Her first job was helping to defend nurses and doctors faced with malpractice claims.
“Medical malpractice means not meeting a generally-accepted standard of care in a particular situation. It means you failed to do something you should have done or you did something you shouldn’t have done. A mistake doesn’t necessarily bring on a lawsuit. A suit has to include allegations that the malpractice resulted directly in an injury or damage to the patient,” said Jones.
“If you have the ability and training to meet the standard of care and practice, you aren’t likely to get into trouble. Still, there are ways to minimize your risk,” said Jones.
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Tips
- "Know the policies and procedures of your facility/and or unit and practice them," said Meadows. "Every hospital has different procedures, but if you are following them, chances are greater that a hospital will stand by you if you're faced with a suit."
- Perform only those skills that are within your scope of practice, and be careful how you delegate tasks. You could be liable if you delegate a task improperly to a licensed practice nurse or nursing technician, especially if it isn't in their scope of practice.
- Admit a mistake immediately through the proper channels and incident reports, said Jones. "People tend to not want to admit that they made a mistake, but that can put them in a worse position later," said Jones. "Tell the hospital and notify your insurer immediately. I've seen insurance companies turn down claims because they weren't told when something happened." Nurses, as employees of hospitals, sometimes get named in suits as a way of getting the hospital (an entity with deeper pockets) involved, she said. They may also be called as a witness, rather than a defendant.
- Document, document, document! "Chart so that there is no room for misinterpretation," said Meadows. "If you only minimally document, you may not be meeting the standard of care. And, law suits take time to come to trial. You may or may not remember what you did three or five years ago. You'll have to read the record." "Writing it down is the only sure-fire way to prove you did something in court. If the record is unclear, you are more apt to be deposed and have to give sworn testimony under oath – something to avoid if you can," said Jones. "If you are busy with patients, even a late note added after your shift, saying it was due to patient prioritizing, is better than not writing it down."
- Purchase your own professional liability insurance, said Jones. You may be generally covered by your hospital's policy, but their legal counsel is obligated to protect the facility first. "There are different kinds of liability insurance, so ask your agent to explain and read your policy so you know exactly what is covered," said Jones. Will they send a lawyer to defend you in the case of challenge to your license by the Board of Nursing, for instance? You want that. "Also tell insurers clearly what you do. Some nurses forget to mention a part-time job or community-education role. Make sure that you are covered for all your nursing activities," said Jones. "When it comes to legal documents [like insurance contracts], we all need to read carefully and be more savvy consumers."
- "Stay current in your practice," said Meadows. "Take continuing education courses or seminars offered by your hospital or nursing organizations. Attend new equipment in-service programs. The more you know, the better you will practice." Jones believes that Courses offered by the ANA and other nursing organizations can help a nurse understand her liability and what to do if named in a malpractice claim.
- Be a responsible team member. That means reporting anything you see that concerns you, whether it involves a physician or a coworker, up through the chain of command. "You are part of a health care team, but your role is to be an advocate for your patient. If you're not standing up and questioning something that doesn't seem right, you could be liable in not fulfilling your patient advocacy role," said Meadows.
- "Never give a deposition or testify in court without being prepared by your lawyer," said Jones. "Being deposed and going to court are nerve-wracking and scary experiences. You want as much understanding of the mechanics of the process as possible, so that you will be more confident and less anxious."
- Communicate clearly and honestly with coworkers and patients. Poor communication can result in errors. "Patients need to feel comfortable talking with you and to know that you are professional and caring," said Meadows. "I don't see as many law suits with nurses and doctors who are personable and friendly."
