Are you about to be sued? Make practice changes now, avoid disaster

Staffing shortages and overcrowding put you at risk for lawsuits

Picture a packed waiting room in the height of the flu season. Could a 61-year-old woman in heart failure be mistaken for another pneumonia case? That’s what a patient’s family said happened in one ED when a woman with labored breathing was left to wait for several hours as her condition worsened. As a result of lack of intervention by overworked emergency nurses, the patient required resuscitation that left her paralyzed and unable to talk, the family claimed. Her family sued for malpractice and argued that inadequate nurse staffing harmed the patient irreversibly. They won a $2.76 million settlement.1

"Any time a case such as this receives national attention, and with the litigious nature of our country, more suits based on similar claims are bound to be filed," says Trudy Meehan, RN, CHE, principal of Gonzales, LA-based Meehan Consultants, a legal nurse consulting company and former ED director at East Jefferson General Hospital in Metairie, LA. "Who hasn’t heard of the many states with mandatory staffing ratios? These are fuel for that fire."

ED overcrowding and the nursing shortage are dangerous for patients, and as a result, nurses are more likely to be sued, warns Mary Ann Shea, JD, RN, a St. Louis, MO-based nurse and attorney. "I fear that we might see an increase in lawsuits against nurses," she says. "I present lawsuit prevention seminars to nurses all over the country, and one of the most frequently expressed concerns by nurses is short staffing and its effect on the quality of the care given."

She points to a case of a 33-year-old woman who came to an ED with complaints suggestive of myocardial infarction. "She was sent to the waiting room and was found in cardiac arrest about 50 minutes later," recalls Shea. "The ED staff attempted to defend themselves by claiming the ED was full and there was no bed for her. The case settled for $850,000."2

Jackie Ross, RN, BSN, CPAN, a Chagrin Falls, OH-based risk management consultant who specializes in health care, says, "I have noted that individual nurses are being named more frequently in the cases that I am reviewing."

Too often, nurses lack time to give the quality of care they feel is appropriate, says Shea. "Numerous statistics show that the number of medical errors is increasing," she says. "And as the errors increase, so does the likelihood of being sued."

To dramatically decrease your liability risks, do the following:

  • Don’t forget to document.

Lack of documentation is the No. 1 liability risk for ED nurses, says Kathie Eberhart, BSN, RN, CEN, a Santa Rosa, CA-based legal nurse consultant and ED nurse at Santa Rosa Memorial Hospital.

If you realize within an hour or two after completing a procedure that you forgot to document something, you should document a "late entry" note, she advises. If a longer time has passed, you still should chart it with the time and date, Eberhart adds, because this information is better late than never.

"If ever asked about it in a deposition, you can explain that you were too busy to document it at the time of occurrence," Eberhart says.

A late entry note within a reasonable time period is always better than no documentation at all, but this type of entry should be the exception, not the rule, Eberhart says. "You need to make the time to document, even if just writing down a set of vital signs at a certain time," she says.

Always document any change in patient status, such as vital signs, onset of chest pain, shortness of breath, level of consciousness, or cardiac rhythms, says Eberhart. It’s not enough to document that a patient is reporting chest pain — you also must document that the ED physician was made aware of this change in patient status, she adds, such as, "Dr. X advised no change in orders."

"Many nurses do not do this," she says.

  • Give admitted patients the same standard of care as they would receive as inpatients.

With more admitted patients being held in the ED to await an available bed, nurses often fail to follow stricter requirements for critical care patients, says Eberhart. A common omission is documentation of urine intake and output for patients with a Foley catheter, she says.

"It may not be an immediate problem, but hours later when the patient is on fluid overload, you need to know how much their intake and output was," she says.

Be aware of your state’s regulations regarding nurse staffing ratios, advises Eberhart. For instance, in California, an intensive care unit (ICU) nurse cannot have more than one or two patients at a time, depending on acuity, and therefore the same ratios must apply in the ED.

This is a tremendous challenge, she acknowledges. "If we are holding four ICU patients, that’s two nurses right there, which may be a third of our staff," she says. "If we don’t have enough staff to cover the other patients, this can turn into a dangerous situation for patients. It may mean going on divert."

  • Always communicate patient complaints to the physician.

When two children were brought to an ED with rashes, their mother told the nurse that one of the children had tick bites, but the nurse did not communicate this to the physician, says Shea.

"The physician diagnosed the children with measles, and this misdiagnosis resulted in the death of one of the children," she says. "The nurse was found to be negligent in this case."3

  • Always give thorough discharge instructions.

If a patient sustains a lower extremity fracture and is casted in the ED, the discharge instructions must include the need to monitor the distal neurovascular status, says Shea.

"This must be stated in lay terms so the patient understands what to do," she says. For example, Shea says, an appropriate instruction might read, "Check toes of casted leg every four hours. Notify Dr. Smith or return to ED immediately if you experience loss of feeling, discoloration, or severe pain in your foot or toes."

If patients are not informed about the need to do this, they could develop a serious complication such as compartment syndrome and subsequently lose a leg or the function in a leg, says Shea. "The nurse could share in the liability in this case," she adds.

Many malpractice lawsuits involve claims that the patient was not aware of whom to call or how to treat a wound after discharge from the ED, notes Ross. "It is important that accurate information, including at least two contact phone numbers, is included on the discharge instructions," she says.

Also document which family members or others were present during the discharge instructions, especially if the patient received any sedation or narcotics, says Ross.

Always reassess your patient at the time of discharge and report any change in the patient’s status to the physician, since otherwise an unstable patient could be sent home, advises Eberhart.

  • Establish a good rapport.

Many nurses underestimate the significance of rapport, emphasizes Shea. "Being courteous and friendly, exhibiting a caring demeanor, and smiling are very simple ways to establish a relationship with the patient and family that result in their not wanting to pursue legal action against you," she says.

  • Don’t hesitate to question orders.

Several claims have involved nurses failing to question an order for a medical treatment or medication, says Ross.

"If the nurses are concerned about a physician’s order, it is their responsibility to voice concerns," she underscores. "Nurses are professionals and will be held accountable for their actions and inactions in court."

You can prevent bad outcomes and litigation by being a patient advocate, says Eberhart. "I have caught medication orders with the wrong dose many times," she says. "Most of the time [when you question orders], the order is fine and you are wrong. But what about that time when you are not wrong?"


1. Sylvester R. Wesley settles patient lawsuit. The Wichita Eagle. Accessed at

2. Laska L. Failure to diagnose and treat MI results in death of 33-year-old woman. Medical Malpractice Verdicts, Settlements, and Experts 1998; 14:26.

3. Ramsey v. Physicians Memorial Hospital Inc., 36 Md. App 42, 373 A.2d 26 (Md. App. 1977).


For more information about liability risks and emergency nurses, contact:

  • Kathryn Eberhart, BSN, RN, CEN, Eberhart Medical Legal Consulting, 4706 Devonshire Place, Santa Rosa, CA 95405. Telephone: (707) 538-7056. E-mail:
  • Jackie Ross, RN, BSN, CPAN, 17491 Merry Oaks Trail, Chagrin Falls, OH 44023. Telephone: (440) 708-9813.
  • Mary Ann Shea, JD, RN, Attorney at Law/Registered Nurse, P.O. Box 220013, St. Louis, MO 63122. Telephone: (314) 822-8220. Fax: (314) 966-0722. E-mail: