As more Nurse Practitioners
and Physician Assistants are used to fill the void in the Physician shortage
Malpractice Lawyers will begin a campaign to sue the Mid-Levels. It is just
beginning, but an aggressive field of Malpractice lawyers will begin the
process of setting high award cases. Trail lawyers will be happy, patients
looking to hit the “Jackpot” (and you all know who you are) will be happy, and
the America will again seeing rising costs of its Health Care take place.
Everyone loses except the trail lawyers!
More patients are naming
nurses in malpractice suits
From Nurseweek.com
By Todd Stein
May 15, 2000
Illustration: Margie Paschke/
William Jacoby/Photodisc
May 15, 2000
Illustration: Margie Paschke/
William Jacoby/Photodisc
That number may be low, especially where highly skilled nurses are
concerned. A study of nurse-malpractice lawsuits in Harvard University medical
institutions found that claims against nurse practitioners jumped 16 percent
between 1984 and 1992.
Insurance experts mostly blame the increase on overzealous lawyers
lured by substantial jury awards. Lawyers blame managed care for axing hospital
staffs and increasing patient loads – leading to more mistakes. But all sides
agree the primary reason more nurses are getting sued is, ironically, that they
are more skilled than ever before.
"Patients expect more of nurses, so when something goes wrong
there’s less hesitation to blame them," said Marc Mandell, a Norwich,
Conn., lawyer who specializes in nursing risk management.
More vulnerable
As their professional roles expand, nurses are naturally becoming
more vulnerable to the types of lawsuits that have plagued physicians for
years. Malpractice is the legal term for negligence by any licensed
professional. Case law began recognizing nurses as professionals in the
mid-1970s, and has lately come to see registered nurses as "assertive,
decisive healthcare providers," according to a 1985 New York appellate
court opinion.
"Unlike a generation ago, jurors are more likely to agree
that if something goes wrong, the nurse should have picked it up just like a
doctor," Mandell said.
The financial cost of malpractice is covered by most employers’
insurance policies, and few experts suggest nurses need their own malpractice
insurance. But if malpractice is claimed, the cost to a nurse’s career can be
staggering. Even if the nurse is a so-called "tag-along" defendant
and not the primary focus of the lawsuit, once money is exchanged through an
out-of-court settlement or jury award, the nurse’s name is automatically
reported to the state Board of Nurse Examiners, to insurers and to the federal
government’s National Practitioners Databank.
State nursing boards are increasingly likely to suspend or
discipline nurses who are found guilty in malpractice suits. Even if the board
is lenient, employers may not be. Nurses are required to report their
involvement in a malpractice suit to each of their employers for the rest of
their professional careers.
"The patient isn’t the only victim in a malpractice
case," said Tom Packer, a San Francisco lawyer who specializes in
defending nurses in liability cases. "The emotional and professional
effect on nurses can be devastating because it’s forever on their record that
one of their patients was paid money after they alleged malpractice, even if
they only got one dollar."
Guides for protection
Not all the news is bad, though. Thankfully, there are clear
guidelines for protecting yourself from a malpractice suit.
Nursing malpractice occurs only under two conditions: You make a
mistake that can be proved to have harmed a patient, and the mistake is one
that a reasonably careful nurse wouldn’t have made in a similar situation. The
law doesn’t require you to provide the best or safest care humanly possible –
only to meet a reasonable standard.
In court, that standard is your state’s Nurse Practice Act. So it
follows that the primary way to prevent a malpractice lawsuit from being filed
is to know the law.
"A nurse absolutely has to be familiar with the Nurse
Practice Act, so if she’s asked to do something out of bounds, she knows to
refuse it," said Elizabeth Higginbotham, RN, an Austin plaintiff’s lawyer
and president of The American Association of Nurse Attorneys (TAANA), Texas
chapter, who leads workshops on avoiding malpractice suits for both nurses and
hospital administrators.
Many times, Higginbotham said, employers will put nurses in a
catch-22 situation where they must choose between compromising their license
and keeping their job. A long-term care facility, for instance, may have a
policy that requires RNs to let unlicensed personnel hang IVs, even if the
state’s Nurse Practice Act requires an RN to do the job. If something goes
wrong and a lawsuit is filed, it’s the nurse who will be held responsible.
Similarly, a nurse who notifies a physician that a patient is in
trouble is legally responsible for that patient even if the physician makes no
response.
"You can’t just drop the ball," Higginbotham said.
"You’ve got to go over (the physician’s) head and find somebody who’s
going to give you orders to take care of that patient. Otherwise, you might
find yourself in my office."
Many state nursing boards make available guidelines that outline a
step-by-step process for determining which duties are outside a nurse’s scope
of practice. Most can be printed from the Internet free of charge.
Documentation is key
Another way to prevent malpractice suits is to scrupulously
document everything from disagreements with the physician to a patient’s
noncompliance with medications. "Nobody’s going to protect you but
yourself," attorney Mandell said. "And the best way to protect
yourself is to document everything and to do it contemporaneously, not after
the fact."
Adding to the medical record after a lawsuit has been threatened
is one of the most common and costly mistakes a nurse can make, added Monica
Mooney, RN, a San Francisco defense lawyer and president of TAANA’s California
chapter. "As a defense attorney, that is one of the last things you want
to see. Any time you alter the medical record after the fact your liability is
huge because it ruins your credibility and the jury’s not likely to believe
anything else you say."
Ideally, chart entries should be made at the time of an assessment
or intervention and no later than shortly afterward. If you make a mistake in
the record, draw a line through it, write "mistaken entry," include
the correct information, and initial the changes. Never erase or obscure the
record. Document forensics experts are commonly employed by attorneys to uncover
such glaring indicators of error.
While other prevention tactics are advisable, perhaps the best
technique to prevent a malpractice suit from being filed is the one that comes
most natural to nurses. Being kind.
"Politeness is the best cure against
malpractice," Mandell said. "If the patient likes you and you’ve been
kind to that patient you decrease your odds of being sued immensely."
