When are you liable for malpractice?

Four simple steps to gauge your legal susceptibility

"Would I be liable if . . . ?" It’s a question that has probably popped into your mind more than once over the course of your nursing career. As confusing as the legal world can be though, there is a simple way to answer the above question for yourself. It can be as simple as addressing four basic issues.

John Gilliland, JD, of Gilliland & Associates, a Crestview Hills, KY-based health care and labor employment law firm, and Kammie Monarch, RN, MS, a senior policy fellow at the American Nurses Association in Washington, DC, say that, in essence, you must look at these four simple questions:

    1. Did you owe a duty to the person/patient?

    2. Was that duty breached?

    3. Did the breach of duty cause damages?

    4. What were the damages?

A quick lesson in law

Don’t let the word "malpractice" fool you. According to Gilliland, there’s nothing fancy about it.

"The concept we refer to among professionals is malpractice, which is really just a euphemism for professional negligence," he says. "And the above four basic elements are a broad brush test for malpractice and is the same for any negligence action. Whenever you look at whether you would be liable from a malpractice end, you would look at those four questions."

Gilliland says he is often asked by health care professionals, "Was I negligent?" or "Would I be liable?"

"When someone asks those questions, they are primarily thinking of the first two elements," he says. "Then legally, we move on to causation and damages."

In the strictly legal arena in terms of malpractice, Gilliland advises you should be concerned with all four questions because without any one, there is no malpractice lawsuit.

"When a patient sues, they have to prove all four," notes Gilliland. "And to successfully defend, you only have to knock down one of them. So you’ll have malpractice cases where the defense will say only, There was no duty owed. You’re confusing me with Mary.’ Or a defense may say, Yes, there was a duty owed, but we didn’t breach it. We did what was supposed to be done.’ Or the defense could argue, There was a duty and it was breached, but it didn’t cause any harm.’"

1. Was there a duty?

"This arises when a professional relationship develops with the patient," says Gilliland. He defines a duty as "the duty to exercise reasonable care in providing the services."

The trick then becomes defining reasonable care, and this is where Gilliland says a malpractice case will most dramatically differ from a normal negligence case in that expert witnesses are permitted to testify what should or should not have been done.

"In the typical auto accident, you don’t need anybody telling you what should have happened, but in the malpractice case you will typically have other professionals and other nurses testify as to what should have been done or not done and you get a battle of the experts to assist the jury in determining the standard of care," says Gilliland.

When looking at what the duty owed was, juries will typically look at the various standards of practice.

"What are the prevailing standards in the profession for the procedure that the nurse is performing?" is a critical question, according to Gilliland.

For home infusion providers, sources of standards include other infusion nurses or home infusion providers, journals, physicians, textbooks, Nurse Practice Acts, the provider’s policies and procedures, or an individual with a unique expertise in the specific issue at stake. One area that many providers put their nurses at unnecessary risk is when establishing its own policies and procedures.

"People in home care in general tend to write policies trying to achieve the optimum. They get idealistic and never think, I may be held to this,’" says Gilliland. "Those policies can be put in as evidence to prove the standard of care. So agency policies are a source that a court will look at to decide what is the standard of care."

For example, assume your company policy states that nurses will visit a patient within 24 hours of receiving a referral, physician’s order, etc. If a nurse visits a patient in 36 hours, and numerous expert witnesses say for that patient in that particular instance 36 hours was fine, a court may very well find that you set your own standard in 24 hours and failed to abide by that.

"You need to keep that in mind when you are writing policies for your own agency," says Gilliland. "When I mention that in a workshop, people tend to do a much better job. I tell them to say that there will be exceptions, that generally the visits should be made within 24 hours, or to put an overall disclaimer that the policy is not to establish a standard of care but to achieve optimum performance."

2. Was the duty breached?

Once a standard is established, it is then considered whether that standard was adhered to.

Monarch points out the duty and breach thereof requires a great deal of patient advocacy on the nurse’s behalf.

"The nurse may not be able to tell that the pharmacist incorrectly mixed the medication; but if the label says the bag has been mixed a certain way and it’s wrong and the nurse administers it, he or she is still legally responsible for administering the wrong dose," says Monarch.

Also, if a nurse disagrees with a physician’s order, case law dictates the nurse’s responsibility to the patient.

"If the physician orders something that is out of the normal range of dosing for a particular diagnosis and situation, the law says the nurse has a responsibility to not administer it until the order is clarified and the situation is resolved," says Monarch. "If the nurse is uncomfortable administering medication based on a doctor’s order, they can and should refuse to give that. Because if they do administer the medication and something happens to the patient, the nurse is going to be responsible."

The elements of duty and breach of duty come under risk management. Nurses and providers know what their duty is and what should be done. The risk managers then make sure everyone does just that. That’s why Gilliland says the key is knowing what your duties are and then living up to them.

"If the nurse can show that he or she abided by (a) the institutional policies and procedures that govern the actions of the case and their job description, and (b) national practice standards like those issued by the professional associations; they have gone a long way to negate the breach element that the patient has to show," says Monarch.

3. and 4. Did the breach of duty cause damages?

Even if there was a duty and it was breached, unless that breach of duty was a proximate cause of damages, there is no malpractice liability. In the legal setting, the damages and causation are just as important as the breach of duty.

"What the nurse did had to be the cause of the patient’s harm," says Monarch. "If the nurse gives the patient too much of a vitamin and the patient goes into cardiac arrest two minutes afterwards, it must be shown that the administration of the vitamin was the cause of the cardiac arrest and that is going to be a very hard thing to do.

"There then may be a five-day trial trying to find out, Was it the vitamin?’" says Gilliland.

What’s the case law?

"In the area of home health care, especially when it comes to infusion, there are not that many cases because there hasn’t been that much time for the case law to really develop," says Monarch.

Gilliland points out that health care attorneys don’t have an answer for why there aren’t more malpractice suits in such a rapidly expanding industry, although he offers two hypotheses:

  • "People generally do not sue people they like," he says, and home infusion nurses tend to establish a relationship with a patient and the patient’s family.

    "It goes back to the best thing a physician can do to avoid malpractice is to establish the physician-patient relationship: Talk to the patient and listen," says Gilliland.

  • "In the home, the patient is where they want to be and they are participating in what is going to be done: the whole relationship is different," he says. "And of course, it could be that [why] maybe the nurses are careful."

    The lack of case law does not mean it is nonexistent, though. Monarch points to a case of Semmler, Lunny, Gaiti, Poole, and Melendez v. Metropolitan Life Insurance Co., 94CIV.5549, U.S. District Court (NY, Sept. 15, 1995).

    Monarch explains that Gaiti was the recipient of an epidural catheter while the rest of the plaintiffs were recipients of central venous catheters.

    "The issue in the case was whether the charges related to these lines were going to be paid by the defendant’s insurance company," she says, "but the issue that was important for infusion nurses was that . . . testimony considered by the court included the following:

    IV infusions are maintained by nurses and it is the exception rather than the rule to need anesthesiologist visits subsequent to his/her routine post-operative visit. It does not seem appropriate for an anesthesiology to charge a patient for a visit specific to pain management. It is the nurse who instructs the patient on the use of the pump.’

    "The court said it was the nurse who is responsible for the pump and administration of the medication," says Monarch. "So it was pretty clear when it said it is the nursing responsibility."