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Avoid Disaster by Properly Preparing New Nurses

By Stacey Kusterbeck

For new nurses, there can be serious consequences if they lack the right training. Just as plaintiff attorneys always look for people to blame for a bad outcome, so do state boards of nursing. “Accepting an assignment that a nurse is not properly trained or educated for is considered a failure of the nurse’s duty to the patient,” says Caitlin Lentz, JD, an associate attorney at Hamil Little in Augusta, GA.

When a nurse accepts an assignment, that person is attesting he or she can handle a patient because they are mentally, physically, and educationally ready. That puts new nurses in a tough spot. “Generally, the new graduate needs to protest the assignment due to the fact that they are not properly trained or educated to take such an assignment,” offers Taralynn R. Mackay, RN, JD, an attorney at McDonald, Mackay, Porter & Weitz.

Many states require a nurse to complete an Assignment Despite Objection form or a Protest of Assignment form. The nurse might have to contact a union representative or file a complaint with human resources or management. “A nurse needs to know in advance what the procedure is to protest an assignment so that when it occurs, the nurse is not struggling with trying to find out what to do,” Mackay says.

If the new nurse simply accepts a charge or triage role, he or she is taking on significant risk. “Some possible allegations are failing to properly assess, treat, or intervene for a patient by failing to meet the standards of practice,” Mackay warns.

According to Mackay, new graduates should not practice in an ED without first undergoing an intense preceptorship overseen by experienced nurses, followed by undergoing proper precept with a seasoned professional. “Hospitals could be held liable for a failure to provide properly trained nurses,” Mackay notes.

Even if the hospital is not held specifically at fault for a failure to prepare new graduates, the lack of training can be the cause of the negligent act that brought about the lawsuit. “It makes sense to have the nurses trained and educated to fulfill the assignment given,” Mackay says.

Still, this does not absolve nurses of responsibility. “If a nurse takes on the triage or charge nurse role, that nurse will be held to the standard of care for a competent person in that role,” says Gregory Dolin, MD, JD, an associate professor of law at University of Baltimore.

Some hospitals are staffing their EDs with improperly qualified nurses, such as pulling nurses from other units to work in the ED who lack competence to do so. Whether there is liability for the nurse depends on whether the nurse performed adequately. “If you start doing a role and don’t do an adequate job, how a reasonable, prudent professional would do it, you have failed the standard of care,” Dolin says.

The plaintiff attorney could dig deeper into the situation when questioning the nurse (at deposition or at trial). For example, nurses could face questions on how much time was spent in the ED before the bad outcome happened, and how much training the nurse underwent for the role. If the nurse spent hardly any time in the ED, or received minimal training, “that in itself plays poorly to the jury,” Dolin cautions.

Since nurses often are employees, the hospital usually is liable for negligent acts under the respondeat superior legal doctrine. “Even if the hospital did nothing wrong, they are responsible because they are the boss. But there could also be some direct liability for the hospital,” Dolin says.

For example, the hospital would be directly liable for the nurse’s negligence if the plaintiff attorney proves the hospital’s hiring process was inadequate, or leaders staffed the ED with unqualified nurses. “The plaintiff would argue that there are two causes of injury,” Dolin says.

First, the nurse made an error or failed to do something that resulted in the patient’s injury. Second, the hospital put the nurse in a position in which he or she could make the error, which led to the patient’s injury. “The hospital is only liable if a reasonable hospital would not have hired this nurse or assigned her similar duties,” Dolin clarifies.

Hospitals could be liable for inadequately staffing the ED if the plaintiff attorney could show that a reasonable hospital with similar patient volume would have more nurses working in the ED on the date in question. “Of course, what’s ‘reasonable’ depends on the circumstances. You can’t just create nurses out of thin air,” Dolin says.

It is not the perfect world the hospital would be held to, but the circumstances that actually exist (i.e., the current world in which leaders are dealing with a staff shortage). To prevail in this kind of claim, the plaintiff attorney would have to show that a reasonable hospital could have had a certain number of nurses working in the ED at the time. It may be that the ideal number of nurses was not possible because of the nursing shortage. “The hospital might have to adjust their behavior, as long as the adjustment was reasonable,” Dolin says.

The hospital might need to make a choice between putting undertrained nurses in the ED, or training the nurses as long as the hospital normally did, but having fewer nurses to attend to patients in the ED. “The question then becomes: Which choice would a reasonable hospital make in that situation? It’s possible that both decisions are reasonable, or maybe only one is reasonable,” Dolin says.

Hospitals can help their defense team by pointing out any efforts made to address the nursing shortage in their EDs, such as advertising, increasing salaries, or offering incentives.

“The judge will instruct the jury that their duty is to consider whether the hospital met the standard of care in light of all the relevant circumstances, and whether the hospital adapted reasonably to the nursing shortage,” Dolin says.