Risk management update: Verbal vs. written orders

by Sue Dill Calloway, RN, MSN, JD, Director of Risk Management, Ohio Hospital Association, Columbus, OH.

Q: When the physician gives a nurse verbal orders in the ED, but doesn't write the order on the chart, what should the nurse do?

A: Recently, the issue of verbal orders and telephone orders have received much attention. Verbal orders are those given by a physician to a nurse or other health care provider to record on the physician's behalf. These are considered to be risky business by many risk managers.

Verbal orders are legal and binding. However, there is increased liability exposure, since the nurse may not have heard the order correctly. The inconvenience of having the physicians write their own orders is insignificant, considering the risks to the patient and the legal hazards. This is why some hospitals have a policy that verbal orders will only be taken in an emergency situation.

Policy can be a solution

EDs should have a policy that addresses the issue of verbal orders. It is important for nurses to be aware of their facility's policies, since a deviation from their own internal policy can be discovered by the plaintiff in a malpractice case and used to destroy the nurse's credibility in the courtroom. The ED manager should also ensure that this policy is consistent with the 1998 standards of the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO). JCAHO standard IM 7.7 states that only verbal orders of authorized individuals are accepted, and should be transcribed by qualified personnel who are identified by title or category in the medical staff bylaws.

So if your facility does allow verbal orders, there must be a medical staff bylaw establishing which personnel-nurses, pharmacists, dietitians, or others-can take verbal orders. This 1998 JCAHO manual also states that the quality of care may suffer if such orders are not recorded in a standard way (page IM-25). JCAHO requires that each verbal order be written, dated, and identified by both the individual who gave it and received it. The medical record must also reflect who implemented it.

From a legal perspective, if the doctor says do "A" and the nurse hears do "B" and the patient is injured, a lawsuit may be filed. It is extremely hard to defend these lawsuits in court. The jury may find it hard to understand why the physician did not take the time to write the order. Also, in almost every case where the nurse and physician disagree on the verbal order, the patient-plaintiff has won. It is a less-than-optimal situation in the courtroom when the defendant nurse and physician are pointing the finger at each other. Verbal orders may be legal, but they greatly increase the probability of errors. A miscommunicated verbal order that resulted in patient injury would also be considered a sentinel event and would come under the JCAHO policy. An extensive root cause analysis would then have to be done to look at the system to figure out how to prevent a similar incident from happening again. Of course, one approach might be to have a policy of not accepting verbal orders, absent an emergency situation.

Verbal orders can affect reimbursement

Verbal orders should also be documented for reimbursement reasons. This is affectionately referred to as "charting for dollars." On July 1, JCAHO changed their policy requiring physicians to sign all verbal orders unless their facility's policy states otherwise. However, the Health Care Financing Administration (HCFA) requires a written order to reimburse the hospital for the drug, test, equipment, or other order.1 HCFA also states that if the nurse writes a verbal order, it must be signed off by the physician. So, why can't the physician just write the order and sign it at the time it is given? Hospitals have to agree to abide by the Conditions of Participation if they treat any Medicare patients.

With this in mind, what should a nurse do when the ED physician gives a verbal order? Generally, what I do is hand the chart to the physician and say, "If you will write it, I will go and get it." If this doesn't work, then I will write the order and hand it to the physician to sign, since they need to authenticate the order. As a last resort, the nurse could at least repeat the order back, but this is more risky than the above options.

Reference

1. HCFA Conditions of Participation: Medical Records Service. 42 CFR section 482.24(c)(1)

[Editor's note: A column by Sue Dill Calloway,RN, MSN, JD tackling the difficult subject of liability and risk management in the ED will be a regular feature of ED Nursing. If you have a question for this column, please contact editor Staci Bonner at (516) 626-0147 or e-mail: SBonner301@aol.com]