MALPRACTICE STEPS TO AVOID A LAWSUIT University of

MALPRACTICE – STEPS TO AVOID A LAWSUIT University of Colorado Denver, College of Nursing Jessica Vecchio

Legal Terms � In order to avoid a lawsuit one needs to know a few important legal terms: 1. Tort 2. Negligence 3. Malpractice

Tort � � A tort is a civil wrong or wrongful act that causes injury to another regardless if it was intentional or accidental. A tort can be any of the following: � Denying a person of their legal right. � Failing to comply with public duty. � Failing to perform a duty which resulted in the injury of another.

Two Types of Torts 1. Intentional Torts 2. Unintentional Torts

Intentional Torts 1. 2. 3. 4. 5. Invasion of Privacy Defamation of Character Assault Battery False Imprisonment

Unintentional Torts 1. Negligence 2. Malpractice

Negligence � � Negligence is defined as: “A failure to exercise the degree of care that a person of ordinary prudence would exercise under the same circumstances. “ (Lippincott, p. 34)

Doctrines of Negligence 1. RES IPSA LOQUITOR � “the things speak for itself” � The injury is enough proof of negligence 2. RESPONDEAT SUPERIOR � Let the master answer for the acts of subordinate � The liability is expanded to include the master as well as the employee 3. FORCE MAJEURE � Irresistible force; unforeseen or inevitable event � No person shall be responsible for those events which cannot be foreseen. � Ex. : Acts of “God” – earthquake, flood, fire

Malpractice � � Malpractice is more specialized, defined type of negligence. It is defined as: “A violation of professional duty, failure to meet a standard of care, or failure to use the skills and knowledge of other professionals in similar circumstances. ” (Lippincott, p. 34)

Four Elements � In order for a Plaintiff to be successful in a negligence and malpractice claim four elements must be present: 1. 2. 3. 4. Duty Breach of Duty Causation Damages

Duty � � The individual making the claim was owed a duty by another person. This is the first element that must be proven in a case. This is the easiest step to prove especially for nurses in a hospital setting because as an employee of the hospital the nurse has a duty to the patient.

Breach of Duty � Once a standard of care has been recognized and a duty is shown, the injured person has to prove that a duty was breached.

Causation � The breached duty caused injury to the person making the claim.

Damages � Damages are compensation paid to the injured party for the harm/injuries caused to them.

A Malpractice Case is Won by the Plaintiff When: 1. It is determined that the standard of care that any reasonable and prudent nurse in a similar setting with the same credentials would deliver, has been violated or omitted. 2. A nurse violated policy &/or procedure(s).

IF PROVEN You can face: 1. Criminal Liability 2. Damages 3. Grounds for suspension or revocation of license

Understanding Standard of Care � � The type of care that a patient should receive under similar circumstances. Standards of nursing care originates from scopes of practice, professional standards, state nurse practice acts (such as the State Board of Registered Nursing, American Nurses Association, and the Joint Commissions on Accreditation of Healthcare Organizations), job descriptions, facility policies and procedures, and from expert nurses who offer information as to what is careful, prudent and reasonable care.

Some Steps to Take to Avoid a Lawsuit � � Step 1: Documentation – your best legal defense is good charting notes. Documentation is the way a nurse communicates his/her care to others of the health care team. Communication issues can easily lead to malpractice. Charting reflects the quality of care a patient receives. Your notes should give those who read it a very clear understanding of what you observed and did for the patient.

Step 1 Continued � � Chart Promptly – if you wait until the end of your shift to chart, you may forget to include important information about a patient’s condition or care given. Chart in chronological order, specifying times when a specific events occurs or care is performed, and sign each entry you document. Incomplete, careless and inaccurate charting can harm you in court. Make sure that you have neat handwriting, write in ink, check for misspelled words and poor grammar, and only use approved abbreviations. If an error is made, draw a single line through the incorrect information and initial the corrections. Never scribble out or erase an entry - it could look like a cover up in court.

Step 1 Continued � � Verbal order – either by telephone or in person, need to be charted. Make sure that you get verbal orders signed by the doctor. Make sure you get clear orders and you understand what is being asked of you. Remember that medical records are legal documents. Poor Communication underlies almost every malpractice cases.

Documentation Issues Seen in Malpractice Cases 1. Not charting the correct time events occur. 2. Actions being charted in advance to save time. 3. Incorrect data being documented. 4. Not charting verbal orders and/or not getting them signed by the doctor.

Step 2 � � � Be careful when administrating medications. Medication errors are common among nurses and can be very dangerous to a patient. Always take your time when administrating medications and use the five rights: � Right patient, right drug, right dose, right route and right time.

Step 3 � � Recognize your weaknesses and strengths. If you are not comfortable or prepared for a certain assignment do not accept it. If an error is made, stating that you did not know a unit’s procedure will not protect you from liability.

Step 4 � � Safely delegate tasks. You are responsible for tasks in which you delegate out to others and make sure you follow up with them.

Step 5 � � Do not offer your opinion to a patient. Do not give your opinion to a patient as to what you think their diagnosis is. Stick to the facts and do not go outside of your scope of practice.

Step 6 � � Stay on the patient’s good side. If you are nice to a patient and like you, they are less likely to sue you for mistakes that are made. Have good communication with your patients. Explain your nursing care, and tests and procedures. Explain procedures before and as you are doing them. Document this communication with your patient. Be honest.

Step 7 � � Do not be afraid to advocate for your patient. If you feel something is not right, speak up.

Step 8 � � Provide a safe environment. Prevent fall risks and make sure you are not using faulty equipment.

Step 9 � � Follow policy and procedures. Make sure that you know, understand follow the policies and procedures of the facility where you work.

The Bottom Line � The major focus of a nurse is to protect the patients’ rights and to protect themselves from legal liability. No one is immune from lawsuits no matter how careful you may be. With that being said, the risk of facing legal liability can be reduced through good communication with patients and the health care team, documenting accurately and legibly, having great relationships with your patients and following policies and procedures.

References � � � Lippincott Williams & Wilkins, Inc. (2003). Advice on Avoiding Lawsuits. Vol. 33, pg 34 -35. http: //journals. lww. com/nursing/fulltext/2003/0 1001/advice_on_avoiding_lawsuits. 11. aspx Reising, Deanna L. , Ph. D, APRN-BC, and Allen, N. Patricia, MSN, APRN-BC. (2007). Protecting Yourself from Malpractice Claims. American Nurse Today. 2007, 2 (2). Shuman, Jill, MS, ELS (2010). Avoiding Malpractice: A Common Sense Guide to Avoiding Medical Malpractice. Primary Care Network. http: //www. primaryissues. org/2010/12/acommon-sense-guide-to-avoiding-medicalmalpractice/