Tips in risk management: What you need to know
Tips in risk management: What you need to know
By Sue Dill Calloway, RN, MSN, JD
Nurse Attorney
Mount Carmel College of Nursing
Columbus, OH
(Editor’s Note: This column is the conclusion of a two-part series on the basics of risk management for nurses. In last month’s issue of ED Nursing, we discussed documentation, good public relations, policies and procedures, and departmental communications. This month, we discuss state laws, accreditation standards, the Nurse Practice Act, state laws, and the Standards of Emergency Nursing Practice.)
For many years, I was a defense attorney who represented nurses, physicians, and other health care providers who had been sued for medical malpractice. A frequent question asked by nurses after being sued was "How do I know if what I did was defensible?" This question gets to the issue of what constitutes the acceptable standard of nursing care.
When the patient (called the plaintiff) sues a nurse for nursing negligence or malpractice, the plaintiff is generally required to prove each of four elements:
• duty;
• breach of duty;
• direct or proximate cause;
• damages.
This article will focus on the second element, which is called a breach of the standard of care or a breach of duty.
The standard of care is the yardstick by which the court measures the nurse’s activity. The standard of care is established when an ordinary, prudent nurse would have performed in the same or similar manner. A nurse must act as a reasonable and prudent person.
There are many sources that can be used to demonstrate the acceptable standard of care. The Emergency Nurses Association, based in Park Ridge, IL, has promulgated national standards for emergency department nurses. The Standards of Emergency Nursing Practice lists standards in triage, nursing assessment, and equipment. (See Resources, below, for ordering information.)
Nurses should be familiar with the standards in their area of practice. The nurse can introduce those standards in the courtroom to show that the acceptable standard of care was followed. Likewise, the plaintiff’s attorney can use any breach of a standard against the nurse to show that the nurse did not follow the acceptable standard of care.
There are many other sources that can also be used to show the standard of care. Facilities that are accredited by the Joint Commission on the Accreditation of Healthcare Organizations in Oakbrook Terrace, IL, should be aware and follow the Joint Commission standards, and ensure the presence of policies that the Joint Commission requires. Every year, the Joint Commission publishes a list of those for the Document Review Session, which hospitals undergo every three years during Joint Commission surveys to ensure standards are being met.
Nurses should be aware of all federal laws that affect nursing practice. Federal laws include COBRA (Consolidated Omnibus Reconciliation Act), Patient Right to Self Determination Act, Occupational Safety and Health Administration Bloodborne Pathogen Standard, Safe Medical Devices Act, Americans with Disability Act, and The Right to Know law.
Nurse may have to prove no negligence
Violation of a state or federal law is called "negligence per se." This may shift the burden to the nurse to show why the violation is not negligence.
Nurses should be aware of the laws in their state that affect nursing practice. State laws, including the Nursing Practice Act, can be obtained by contacting your state board of nursing. Other examples of state laws include ones that address confidentiality, advanced directives, minor and adult consent, gunshot wounds, child and elder abuse, and involuntary hospital admission.
In summary, the ED nurse should be aware of all applicable standards of care, and follow these standards to avoid being found negligent in the courtroom. (For more information, see story on policies/procedures, below.)
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