EXECUTIVE SUMMARY

Nurses often are undereducated on malpractice prevention and risk management because efforts focus more on physicians. Education focused on nursing concerns can help reduce the risk for themselves and their employers.

  • Nurses sometimes are not adequately prepared for depositions and questioning following an adverse event.
  • The demands of electronic record systems can pull nurses away from patient care and increase liability risks.
  • The routine work of nurses should not be underestimated when considering what is documented in the medical record.

Nurses need education on malpractice prevention and liability risks that is tailored specifically to their concerns and working conditions, but too often they receive only cursory information that is tacked on to the risk management efforts directed at physicians. Education developed for nurses can reduce the liability risk for them and their employers.

Most nurses do not receive adequate instruction in malpractice prevention and reducing liability, says Dawn Grace-Jones, JD, RN, an attorney and consultant in Miami who specializes in educating nurses about malpractice prevention and risk management. Previously, she was risk manager at one of the largest hospital systems in Florida.

“When you were in nursing school, you were not exposed to anything legal or what you need to be thinking about to protect yourself, or how serious it can be,” she says. “Nurses are looking at their work and their documentation one way, but we don’t really teach them that there are other people who are looking at it in a very different way. We have to bring more awareness among nurses about the risks they face and how to protect themselves.”

Unprepared for Depositions

Liability related to the electronic medical record (EMR) is a significant concern for nurses, the same as it is for physicians, Grace-Jones says. Risk managers should alert nurses to the potential liability risks of EMRs, which can include roadblocks to proper patient care. When an EMR makes good nursing care difficult or challenging to document properly, nurses must speak up, she says.

“Nurses tend to be agents of change because they are on the front lines and know exactly how things operate on a daily basis. They know what works and what doesn’t,” Grace-Jones explains. “We are advocates for the patient, and we are the ones who need to scream out when the system isn’t working adequately for us. If the system lacks information or isn’t allowing the nurse to send information to someone who needs it, we have to address that kind of problem to avoid litigation.”

Healthcare organizations also fail to prepare nurses for their involvement in litigation, Grace-Jones says. Nurses often are deposed as part of malpractice suits, but with little or no preparation. They often do not understand why they are being questioned, or why an attorney is asking questions that seem to have little to do with the matter at hand or the nurse’s work, Grace-Jones says.

“Often, we are not prepared for those because no one has spoken to us about it before we’re deposed, or our statements taken. We are afraid, and we feel pressured,” she says. “It is useful to give nurses a scenario and role-play a deposition with them so that they can see how it plays out. They need to know how the attorney will be looking for specific information, and why they are asking certain questions that may seem unnecessary if you don’t understand how the process works.”

Encourage nurses to seek advice and legal counsel when they do not feel comfortable with their involvement in litigation, Grace-Jones advises. Make the hospital’s legal counsel available to answer questions about the nurse’s obligations, potential exposure, and how the employer’s insurance applies.

Less Patient Contact

Grace-Jones also urges risk managers to address how nursing has changed in recent years, and how that might affect the informed consent process. Nurses who have been in the profession for many years know they used to have more personal contact with patients, she says. Now, nurses are so busy working in the electronic system that they do not connect with the patient, she says.

“Nurses used to touch their patients much more often. You looked in their eyes and you knew what the patient was feeling. Your assessments were more detailed, and your communication was more intact because you made that a priority,” she says. “Now, we’re so busy trying to document, and our backs are turned that we don’t know how our patients are feeling. This spills over into the informed consent process in that we don’t know if this patient really understands what the doctor said and what you said, and what you’re confirming when you sign as a witness.”

Grace-Jones urges nurses to recognize that problem and make a point of stopping to establish eye contact with the patient. Nurses also can urge the patient to interrupt at any point with a question or comment, saying “I have to enter this in the system but I’m listening, so please tell me if there’s anything you want to say.”

“Everything is getting so impersonal. A lot of times in healthcare, it is the smallest thing that makes the patient angry, things that we could have worked out if we had communicated more,” she says. “There may be no real injury but it may be something that shouldn’t have happened, and that a simple apology might have remedied. We’re so rushed and our focus is elsewhere, and our patients are getting angry at the system.”

Similar Key Elements for Nurses

The key points to cover when educating nurses about liability risk and malpractice prevention are the elements that have to be proven for a plaintiff to make a malpractice claim against a nurse, says Diane Pradat Pumphrey, JD, partner at Wilkins Patterson Smith Pumphrey & Stephenson in Jackson, MS, and a member of the Medical Defense and Health Law Committee of the International Association of Defense Counsel (IADC).

“I use the elements of duty, breach, causation, injury, and foreseeability with real-life situations to show them how a claim is made and proven,” she says. “I always tell the nurses that I talk to that they should pay attention to their gut or ‘Spidey senses’ in situations. I also make a point to nurses that they are the first line of defense in malpractice claims. Additionally, nurses need to pay attention to their patients and treat them with respect.”

Risk managers should inform nurses that they are liable for their own actions, and generally are covered by their employee’s malpractice insurance and/or their immunities, she says. Nurses should be reminded that they can purchase their own malpractice insurance.

Regarding malpractice claims, the elements of risk management are the same for nurses and physicians, Pumphrey says. However, nurses may have defenses that a physician does not, and they need to be aware of those defenses.

The most common type of allegations against nurses are failure to monitor and assess, or failure to communicate changes in condition, she notes.

The nurse is generally the first line of defense. They need to know how — and how not — to document, Pumphrey says. Although good documentation is essential, Pumphrey cautions against what can be a tendency to diminish the important but routine activities of nurses.

“It is my opinion that the old mantra of ‘If it is not charted, it is not done’ needs to be removed from their lexicon,” she says. “Nurses do so much more than they chart, and there are many things that they pay attention to and do that are never in the chart because it is part of their routine.”

For instance, in taking vital signs, nurses talk to patients, determine whether their skin is warm, dry, cool, or damp, and whether they are awake, alert, confused, or any number of things, Pumphrey explains.

“If there are no negative findings, they don’t necessarily chart the positive findings. It is a given,” she says. “Nurses should be taught to chart what they have reported to the physicians, and the physicians’ response. They also should chart their instructions to the patient and family. The chart is their shield.”

Nurses also should be cautioned about not practicing outside their scope of practice, Pumphrey adds.

Relationships Reduce Risk

The overall liability risk for nurses can be lower than for physicians simply because patients and family members tend to have a closer and more positive relationship with nurses, Pumphrey says.

“I find that people love their nurses in general, especially those who they feel are trying to help, who listen to them, who give them information, and that they feel like are doing their best to provide care,” she says. “This makes the liability risks somewhat less than that of the physician. However, they are responsible for their actions. Plaintiffs are interested in those with the deep pockets, and this generally is not the nurse.”

On the other hand, nurses may not have received enough education on liability and risk reduction because risk management tends to focus more on physician education, Pumphrey says.

“Since nurses are not the target in malpractice suits, they don’t get as much education about liability issues. Physicians know that they are targets,” she says. “Nurses I speak to are very interested in this subject. They want to be educated on how best to defend themselves, and how they should approach patient care and documentation.”

It is rare for nurses to have been taught the elements of a lawsuit in the same way that physicians are, says Julye Johns Bailey, JD, a medical malpractice and healthcare attorney at the law firm of Huff Powell & Bailey in Atlanta, and a member of the IADC.

“Nurses may only hear the notion that lawsuits are filed because of bad outcomes, not bad care,” she says. “It is important for nurses to know that malpractice is defined as a violation of the nursing standard of care that caused a patient’s damages. The standard of care should be explained using the reasonableness definition. Nurses and other healthcare providers are not expected to be perfect.”

Bailey agrees with Pumphrey’s suggestion that the routine activities of nurses can be discounted because they are not explicitly documented, with nurses often simply told that if it was not documented, it was not done.

“Not only is that not true — nurses do plenty of things that they cannot and do not have the time to document — but it is insufficient. Nurses need to be educated on how to document, when to document, and, especially in the era of EMRs, where to document,” she says. “Nurses should be encouraged to review their documentation. They should use narrative or event notes as needed to fill in the gaps left by the mouse clicks and selections from drop-down menus reflected on flowsheets. Risk prevention goes beyond documentation, of course, but it is a key feature of every malpractice case involving a nurse.”

Employer Coverage Can Ease Fears

Bailey notes that because many nurses are employed by the hospital, clinic, or organization, they often do not procure their own malpractice insurance or have to pay annual premiums. That can keep malpractice prevention and liability risks from the forefront of their minds as it tends to be with physicians. Risk managers should try to remind nurses that they do face substantial risks.

Conversations with nurses should be tailored to their level of experience in nursing and with litigation, Bailey notes. “There is an ever-growing focus on the ‘second victim’ in physician circles, but less so in nursing,” she says. “Risk managers and lawyers should keep in mind the psychological impact a malpractice suit can have on a nurse.”

Many nurses are employed by hospitals, clinics, or organizations that will bear the brunt of any settlement or verdict. But if they have their own malpractice insurance, nurses are not immune from payouts and the concomitant fears of higher premiums and cancellation, Bailey notes. Further, there are similar concerns of a report to the state nursing board or the National Practitioner Data Bank.

The topic of nursing liability may be covered in a nurse’s education or initial orientation, but they do not tend to receive any additional or ongoing training or education beyond that, Bailey says. Moreover, the education often is focused solely on charting and documentation. As a result, they tend not to think as much about liability risk as their physician counterparts, she says.

Although the risk may be lower for nurses, it is still real, especially in some areas, Bailey says. “In the hospital, nurses who work in higher acuity areas — the emergency department, intensive care units, and obstetrics — should be prepared for the reality of litigation,” she says.

Nurses often face liability for the lack of monitoring and poor charting, Bailey says. Failing to follow orders, administer medications as ordered, question the physician, or supervise adequately can lead to liability. Failing to document accurately also can result in liability.

“One other major feature of almost every nursing case is an allegation that the nurse should have gone up the chain of command,” Bailey notes. “This rarely is an allegation against a physician, and is therefore a different liability risk. Nurses should be aware of the chain of command, but be encouraged to work collaboratively in teams.”

SOURCES

  • Julye Johns Bailey, JD, Huff Powell & Bailey, Atlanta. Phone: (404) 892-4022.
  • Dawn Grace-Jones, JD, RN, Miami. Email: admin@dawngracejones.com.
  • Diane Pradat Pumphrey, JD, Partner, Wilkins Patterson Smith Pumphrey & Stephenson, Jackson, MS. Phone: 601-366-4343. Email: dpumphrey@wilkinspatterson.com.