Guest Column

Take these steps to avoid being named in a lawsuit

By Sharon LaDuke, RN
Patient Documentation Analyst
Claxton-Hepburn Medical Center
Ogdensburg, NY

[Editor’s note: This is the second part of a two-part series on liability risks for emergency department (ED) nurses. This month’s column features steps to take to reduce your liability risks as an ED nurse. Last month, we gave you steps to take if you feel care is unsafe in your ED because of inadequate staffing or skill level. LaDuke can be contacted at Claxton-Hepburn Medical Center, 214 King St., Ogdensburg NY 13669. Telephone: (315) 393-8880, ext. 5283. E-mail: sladuke@chmed.org.]

One night six years ago, an ED nurse had one of the worst experiences of her long career. Despite the frantic efforts of the health care team, a teen-age boy had died, not from trauma, but from status asthmaticus. She had replayed the events of that evening a thousand times in her mind, wondering whether if she had done something differently, he might have survived. The boy’s parents named her, along with the physician and the hospital, in a multimillion-dollar lawsuit.

The nurse allowed the hospital’s lawyer to represent her, and he did not keep her informed about the evidence, progress, or status of the case, as was her right.1 Then out of the blue, after years of being in the dark, she received a call informing her that in two weeks, she would be on the witness stand. "I’m a wreck," she told her supervisor.

If you think you can never become the target of a legal action, you’re wrong. Trends indicate that an increasing number of nurses are named in lawsuits or reported for professional misconduct (a violation of the state laws that regulate the practice of nursing).

The practice of nursing is fraught with legal dangers, but here are some steps you can take now to reduce your risk:

1. Do research to support your concerns about your ability to provide safe care.

There are many skills regularly performed in specialty areas that you may not know how to perform safely, such as monitoring and assessing patients with pulmonary artery catheters. You might ask the hospital librarian to obtain several basic nursing articles regarding the care of such patients.

You will find that this type of nursing care, usually performed in the critical care unit, goes far beyond setting up lines and handing items to the physician during the insertion. Such legwork places you in a good position to persuade leaders that regardless of a patient’s location, the same skills are required to provide the same care, and to point out what framework (education, competence assessment, policies, etc.) is missing in the ED to provide it safely.

2. Stay current with literature.

Avoid developing the kind of tunnel vision that ensues when nurses stop looking outside of their own facilities and work experiences for knowledge. Maintain a close acquaintance with ED nursing literature and the positions of professional emergency nursing groups.

Ultimately, the only thing that can save you in court is being able to prove you followed local and nationally established standards of practice. The failings of others who contributed to your errors, or who are guilty of something far more serious than your own mistake, may have little bearing on whether you are held accountable for your actions or inactions. Don’t expect to be able to protect yourself by arguing that you followed a hospital policy or a physician’s order, if that was not the "reasonably prudent" thing to do.

3. Seek legal advice.

In the event a patient’s adverse outcome or another serious concern is laid in your lap, it could lead to consequences that could interfere with your ability to practice nursing, destroy your financial position, and challenge your emotional health. Early consultation with a competent attorney who specializes in the practice of the kind of law related to the problem you are experiencing (employment, professional misconduct, malpractice, criminal) is the key to damage control — and to delineating your own responsibility for unintended consequences from that of others. A couple of hundred dollars spent on a valid analysis of your legal position and options is a bargain that rarely can be appreciated until it’s too late.

Legal advice is particularly critical when:

• You are suspended or terminated for any reason related to the practice of nursing. (Your employer may be required to report this to the state board of nursing.)

• You are arrested for a crime, whether it is related to patient care or not. (Your conviction may trigger a misconduct proceeding.)

• You are contacted by a state agency to inform you that an investigation is being conducted for circumstances in which you were involved.

• You are being represented in a malpractice lawsuit by your facility’s lawyer and you are not being kept aware of the status of the case or involved in its development.

4. Buy liability coverage.

Personal professional liability ("malpractice") insurance is central to protecting your assets in the event of a legal threat. Your employer can be relied on for legal backing only if the facility’s attorneys believe such a stance to be in the facility’s best interests. Your best interests are not the primary concern.

In the event something goes seriously wrong while you are caring for a patient, contact your insurance company right away, and keep your agent posted regarding any developments. Your agent’s job is to protect you from financial loss, and his or her knowledge and experience enables him or her to see red flags you would miss.

A basic liability policy, which may even include coverage for legal fees incurred in a state disciplinary proceeding, costs most nurses less than $100 annually. This is a small investment that may be tax-deductible and could cushion you and your family from the impact of legal action.

Reference

1. Unified Court System. Statement of Client Rights. NY Comp. Codes R.8 Regs. Tit. 22 §1210 (1997). Accessed on-line at www.nysba.org/Content/NavigationMenu/Public_Resources/Lawyer_Referral/Client_Rights_and_Responsibilities/Client_Rights.htm