Yes, You Can Be Sued

During the course of a work day, the nurse confronts hundreds of situations that give rise to potential lawsuits. For example, a just-mopped floor is an invitation for a patient fall; a hurried exchange between nurse and an assistant sets the stage for an error in treatment; and a mislabeled prescription is a medication error waiting to happen.

"Fortunately, only a small percentage of the mistakes made by nurses actually produce injury to patients. Of this small number of injured patients, an even smaller percentage go on to seek compensation for damages through legal action. Nevertheless, the numbers of lawsuits filed against nurses continue to increase" (Aiken & Catalano, 1994, p. 118). "In 1994, the current statistics on a national level taken from data reported in the National Practitioner Data Bank from 1990 to 1993 indicated that as of 1990, about five nurses in 10,000 are sued in a given year" (Kelly & Joel, 1995, p. 502). O'Sullivan (1996) reports an increase in suits brought against nurses working in critical care and obstetrics and against nurse practitioners.

The legal status of nursing derives from the Nurse PracticeAct of each state. The Practice Act defines the practice of nursing and the standards to which nurses will be held accountable and along with accompanying administrative rules and regulations become principal sources of law that govern a nurse's practice. Other laws such as state healthcare facilities statutes and medical and pharmacy practice acts also influence the practice of nursing. These laws set a standard of care or duty to which the nurse is held accountable in practice. A violation of the standard of care or duty is generally thought of as negligence and can lead to malpractice.

Four conditions of negligence must be present for nurses to be adjudged guilty of malpractice. Aiken and Catalano (1994) report that the plaintiff (patient) must prove that:

• the nurse owes the patient a duty,
• the nurse has breached that duty or standard of care,
• harm or damage has resulted and can be linked to the duty owed, and
• the breached duty is the proximate cause of the harm or damage.

Members of a profession often establish standards of practice and codes of ethics which are authoritative statements by the profession on how care should be delivered and the kind of conduct or behavior the professional practitioner should engage in. For example, the American Nurses Association has set forth a Code for Nurses. Hospitals adopt policies and accrediting agencies set standards all in the interest of guiding how care is provided. For example, the Joint Commission on Accreditation of Healthcare Organizations prescribes a set of guidelines that healthcare organizations must meet in order to be accredited. These professional pronouncements and policies can also be used in determining whether or not malpractice has occurred.

Changes of epic proportion in today's healthcare system invite further litigation in an already litigious society. The rapid expansion, of scientific knowledge and use of technology increases patient expectations for favorable outcomes as a result of treatment received. Shorter hospital stays mean discharging patients that are sicker and more likely to experience adverse events at home or in another care setting. In a recent instance, a nurse from a temporary staffing agency was sued for failing to protect a patient in a congregate living facility from a violent resident.

Increasing reliance on technology to capture and convey patient information and the use of assistive personnel to provide care enlarges the opportunity for errors to occur. New or different practice sites mean unfamiliar procedures or protocols and fresh occasions for error. Ethical dilemmas such as end of life decisions also provide a medium for a perceived breach of duty to arise. As well, society's standards have changed giving rise to changing norms in professional conduct. For example, sexual harassment laws govern how professionals interact, and fraud and abuse statutes control how payment systems are used. In one recent situation, a nursing school faculty member was sued by a student for alleged sexual harassment.

The profession of nursing has grown, changed, and acquired a new professional status as well. Nursing education has moved into institutions of higher learning; nurse practice acts have been amended to recognize a number of independent nursing practices, such as diagnoses; and many nurses are in solo practice. Nurses are no longer absolved of poor practice as a result of following doctor's orders. Thus, nurses are held to standards of care that are more rigorous than in days past and are held accountable for increasing professional judgment. According to Horsley (1986)...there's always a price to be paid for professional status. That price is expanded legal accountability."

Myers and Fergusson (1989) suggest that nurses with advanced knowledge of pharmacology, anatomy, and physiology are held to an even higher standard of care as their knowledge infers the ability to handle ever more complex and specialized practice. Kelly and Joel (1995) caution that nurses who assume they are at little risk because they don't work in a high pressure area like the emergency room make a mistake. In reviewing a number of cases Kelly and Joel (1995) found that, in the majority of instances where nurses were held liable, the mistakes were everyday situations where nurses did not use good nursing judgment or common sense.

Patient falls, burns, and medication errors have historically been among the most frequent contributors to nurses' malpractice. Today, nurses are also held accountable for failure to communicate, failure to diagnose a patient condition and take appropriate action, and for misapplication of therapies or misuse of devices. Lack of knowledge and poor judgment are also major causes of litigation.

Pepper (1995) reports a case study derived from actual occurrences demonstrating the consequences of lack of knowledge, poor judgment and inattention to orders. A staff nurse administered 40 meq of potassium chloride by injection to an elderly man. The order was for 40 mg of Lasix, IV push. The man expired and the family filed suit. The board of nursing investigated the nurse, nursing supervisors and vice president for nursing as this was the staff nurse's third medication error. The board of nursing put the staff nurse on probation for eight months. The employer terminated the staff nurse's employment on the advice of the hospital's risk manager.

Two recent cases demonstrate the nature of today's lawsuits against nurse practitioners. In the first instance, a nurse practitioner failed to diagnose a myocardial infarction even though the patient presented such classic signs and symptoms as chest and arm pain, obesity, and a family history of heart disease. In the second example, a nurse practitioner failed to diagnose and treat cervical cancer.

Some cases can be settled for as little as $ 1,000 and others are settled in the millions of dollars. Northrop (1989) examined ten nursing negligence cases published between March and August 1989 and found that three of the cases were decided for the plaintiff. In these three cases the jury verdicts were $2,089,886.92, $ 20,000, and $2,300,000. Northrup (1989) reports that the cases resulting in these verdicts involved the following "poor" nursing practices:

• The first jury verdict revolved around trauma suffered by an infant that was mishandled by nursing staff.
• The second verdict resulted from an incorrect sponge count by circulating and scrub nurses which caused patient injury.
• The third verdict resulted from the failure of nurses to recognize a post-surgery emergency, failure to notify physicians in a timely manner, and an inadequate medical record.

Student nurses can be held liable for their actions and can be sued. A student nurse is held to the same standard of care as a registered nurse when performing RN duties. If a student nurse cannot safely function in the performance of these duties while unsupervised, the student should not be carrying out the duties. Kelly and Joel (1995) report the case of a first year student who administered an intramuscular injection into a patient's sciatic nerve causing severe damage. The student was found to be negligent because she should have known the proper procedure and taken special precautions with the patient who was very thin. In another set of circumstances, the instructor might have been found liable on the basis of inadequate supervision had the instructor given the task to the student knowing the student was not capable or competent to perform the task.

Kelly and Joel (1995) report another student case involving student and teacher responsibility. In this case, Central Anesthesia Associates v. Worthy (1985), a senior student nurse anesthetist was accused of causing injury to a patient by improper administration of anesthesia. The student nurse anesthetist was under the supervision of a physician's assistant employed by the corporation that had the nurse anesthetist program. The court held the student liable and failing to meet the standard of a Certified Nurse Anesthetist. The anesthesiologist teachers were held liable for not delegating properly, and the PA was held liable for not supervising adequately.

Nurses must continuously monitor their practice to manage away from risk. Keeping up to date on new technologies, treatment modalities, medications, and employer policies and procedures is a must. Current knowledge about professional standards, codes of conduct, and accreditation criteria are also important. Familiarity with the reasons nurses are sued is also relevant to managing risk.

A professional liability insurance policy is another risk management tool. Liability insurance protects against the financial consequences of suits. Insurance is basically a contract between an insured and an insurance company that upon the payment of a premium the company will provide the insured certain financial payments when the insured is accused of causing injury to another.

Often, nurses believe that an employer's liability insurance is all the coverage needed. O'Sullivan (1996) points out that some hospital policies have not kept up with the changing role of the nurse and that an employer's policy may not cover nurses off-duty or volunteering in a community role. O'Sullivan (1996) also advises that nurses can no longer assume the hospital will provide the best defense in lawsuits as a hospital attorney's primary concern will be the hospital; concern for the nurse will be secondary.

There are also a number of myths about liability insurance in the nursing profession. One myth is that a nurse runs a greater risk of being sued if the nurse has liability insurance. "In reality, lawyers normally do not know if the nurse named in lawsuits has extra insurance or not" (O'Sullivan, 1996). Another myth is that a nurse who purchases liability insurance is no longer covered by an employer's policy. It is illegal for an employer's policy to drop an employee because he/she has liability insurance.

Summary

Nurses, like people in almost every walk of life, can be sued. Nurses are held accountable for their practice by virtue of various laws and regulations. Standards of conduct set by professional organizations and employing agencies also dictate norms to which nurses can be held accountable. The changing healthcare environment and the evolution of the nursing profession also contribute to the changing nature of liability for today's nursing professional. An occasional review of claims brought against nurses can help the practitioner identify actions that might lead to malpractice and guide the nurse in managing risk in day to day practice. Liability insurance is one of the best risk management tools for the registered nurse's risk management tool kit.

References

Aiken, T.D., & Catalano, J.T. (1994). Legal, ethical and political issues in nursing. Philadelphia: F.A.

Davis Co. Horsley, J.E. (1986). Why it's harder to defend nurses now. RN, 9, 56.

Kelly, L. Y., & Joel, L.A. (1995). Dimensions of professional nursing. New York: McGraw-Hill, Inc.

Myers, K., & Fergusson, P. S. (1989). Nurses at risk. Des Moines, IA: HealthPro & Kirke Van-Orsdel, Inc.

Northrup, C. (1989). Current case law involving nurses: Lessons for practitioners, managers and educators. Nursing Outlook 37.6, 296.

0' Sullivan, J. (1996). Healthcare changes bring increased liability risk for nurses. Unpublished article. Chicago: IL.

Pepper, G.A. (1995). Errors in drug administration by nurses. American Journal of Health-System Pharmacy, 52 (15)391-392.

Updated Selected References: 1999 through June 2001

Note: These references are not part of the independent study module, but are provided to you as suggestions for additional reading.

Atchison, D., Sprague, K. (July 2000). Liability and risk management issues in ambulatory surgery care. Surgical Services Management 6(7), 34-36.

Baker, SK. (February 2000). Minimizing litigation risk: documentation strategies in the occupational health setting. AAOHN Journal, 48(2), 100-7.

Blumenreich, GA. (February 1999). Legal briefs. Significance of signing medical chart on legal liability. AANA Journal 67(1), 13-16.

Brown, SM. (November 1999). Legally speaking. Good samaritan laws: protections and limits. RN 62(11), 65-66.

Brown, S. (November 2000). Legally speaking. The legal pitfalls of home care. RN, 63(11), 75-76, 78, 80.

Duffy, W. (Jan-Feb 1999). Managing your legal risks in a perioperative setting. Today's Surgical Nurse 21(1), 25-28.

Ernst, D.J. (December 1999). Legally speaking. Reduce your risk when you draw blood. RN 62(12), 65-66.

Feutz-Harter, S., Laughlin, S. (1998). Nursing case law update legal issues in long term care. Journal of Nursing Law, 5(1), 57-62.

Frank-Stromborg, M., Christiansen, A. (Jan-Feb 2000). Legal briefs. The under treatment of pain: a liability for nurses. Clinical Journal of Oncology Nursing. 4(1), 41-44.

Gorczyca, J. (September 1999). Risky business: legal issues in perinatal discharge. Mother Baby Journal, 4(5), 25-30.

Ireland, D. (December 2000). Pediatric legalities. Journal of PeriAnesthesia Nursing. 15(6), 423-429.

Koniak-Griffin, D. (May-June 1999). Strategies for reducing the risk of malpractice litigation in perinatal nursing. Journal of Obstetrics, Gynecologic and Neonatal Nursing 28(3), 291-299.

Kuc, JA, Pietro, J. (August 1999). Safe discharge from the PACU and ambulatory care setting. Journal of Nursing Law 6(2), 7-14.

Laben, JK, Banks, JG. (November 1999). Litigation against nursing homes for falls: suggested strategies for prevention. Journal of Nursing Law 6(3), 21-28.

Lark, K., Dean, K., Mikos, CA (March 2000). Nurse attorney notes. Nursing liability risk - three perspectives. Florida Nurse 48(1), 22-3.

Laughlin, S.D. (August 1999). Nursing case law update. Telenursing. Journal of Nursing Law, 6(2), 43-52.

Lee, NG. (November 2000). Legal Issues. Proving nursing negligence. American Journal of Nursing 100(11), 55-56.

Mantel, D.L (October 1999). Legally speaking. Off duty doesn't mean off the hook. RN 62(10), 71-2, 74, 78.

Ohler, L., Diane, G. (March 2001). Risk management issues in transplatation. Progress in Transplantation 11(1), 9-11.

Paterson, C.,Lane, L. (July 2000). An analysis of legal issues concerning university based nursing education programs. Journal of Nursing Law 7(2), 7-18.

Satarawala, R. (August 2000). Confronting the legal perils of IV therapy. Nursing, 30(8), 44-47.

Sullivan, GH. (May 2000). Legally speaking. Keep your charting on course. RN 63(5), 75-79.

Linda J. Shinn, MBA, RN, CAE is Principal, Consensus Management Group, Fairfax Station, Virginia.