Malpractice Suits Against Nurses on the Rise

09/05/2007

When Deborah L. Phillips, RN, CVNS, CRRN, JD, went into nursing more than 30
years ago, nurses never worried about medical malpractice lawsuits. “It was
almost unheard of for a nurse to be named,” says Phillips, a nurse attorney
in Pleasanton, Calif.

But these days a growing number find themselves involved in litigation,
either as part of a legal action against a facility or, increasingly, as an
individual defendant.

Nurses on the losing end of a lawsuit face losing their jobs and their
licenses, as well as personal assets, even if their mistake was inadvertent
or they thought they were simply following a physician’s orders, Phillips
says. In a few recent cases, nurses have found themselves facing criminal
charges and even jail terms for medication errors that have resulted in
patient deaths.

State nursing boards and the public expect perfection in nursing practice,
even as patients get sicker and nurses take on more responsibilities,
according to Phillips. “There’s no tolerance for human error,” she says.

Why nurses get sued

Among healthcare providers, physicians remain the main targets of medical
malpractice lawsuits. Nurses account for about 2% of all medical malpractice
payments, according to the National Practitioner Data Bank, operated by the
U.S. Department of Health and Human Services.

But medical malpractice payments on behalf of nurses nearly doubled from 307
in 1997 to 586 in 2005. About two-thirds of these were against non-advanced
practice RNs. Most of the others were against nurse anesthetists, nurse
midwives, and nurse practitioners.

“More and more nurses are being sued individually,” says Rita Kae Restrepo,
RN, BS, CPAN, a legal nurse consultant and post-anesthesia care unit nurse
at San Francisco General Hospital, who teaches nurses about legal issues.
“It’s becoming the new trend.”

Tort reforms in some states have capped the amount of money patients can
seek from physicians, nurses, or hospitals.

However, “The patient’s attorney is going to examine the nurse’s conduct for
breaches in the standard of nursing care,” says Laura Mahlmeister, RN, PhD,
president of Mahlmeister and Associates, a risk management and continuing
education company, and a staff nurse in the birth center at San Francisco
General Hospital. “If the damages awarded to the patient exceed the limits
of the doctor’s malpractice policy, the additional damages may be paid by
the nurse’s insurer, if the nurse has been found negligent.”

Nursing responsibilities have also expanded. Busy physicians who spend less
time at the bedside rely more on nurses to be their eyes and ears, which
increases pressure on the nurse to report and follow through on changes in
the patient’s condition, Mahlmeister says.

The biggest reasons for lawsuits against nurses include medication errors;
communication errors; failure to monitor and assess; failure to properly
advocate for the patient; working while impaired, whether by inadequate
sleep or controlled substances; and negligent or inappropriate delegation
and supervision, say nurse legal experts interviewed for this story.

They add that the best way for a nurse to avoid a lawsuit is to be aware of
the standards of nursing practice and follow them to the letter.

“Ultimately, to prevent errors, you meet the standard of care,” says Cheryl
Randolph, RN, MSN, CRRN, CEN, FNP, a legal nurse consultant and owner of
Paragon Education, a nursing education company in the San Francisco Bay
Area. “That means being aware of your hospital’s policies and procedures,
your state nursing practice act, and the professional standards of your
specialty.”

Minimizing the risk

Nurse attorneys and legal nurse consultants offer the following suggestions
for nurses, whether they want to reduce the risk of being named in a lawsuit
or they seek protection if they’re involved in a lawsuit already.

Thorough documentation. Documentation may not be nurses’ favorite activity,
but nurses who find themselves involved in litigation who have documented
thoroughly will thank themselves later.

“Charting is probably the most vital aspect of proving that nurses have met
the standard of care,” Mahlmeister says. “It’s important to get the story
down on paper.” Electronic medical records result in greater legibility, but
may limit nurses’ capacity to write narrative notes. Nurses should determine
if they are limited by digital templates in writing narrative notes about an
event and ask their managers how to document an adverse outcome.

But noting that you checked the patient’s blood pressure or gave medications
isn’t enough, Mahlmeister says. She adds, “Charting has to define how you
meet the patient’s needs.” As the patient’s condition changes, nurses need
to change their plan of care and reflect those changes in their charting,
she says.

Mahlmeister recalls a case in which a patient did not get a drug on time and
suffered a poor outcome. The nurse testified she looked for the medication
in the dispensary, where it should have been, but couldn’t find it. The
nurse then asked her supervisor for help, but got no response.

Unfortunately, the nurse did not document her actions. The supervisor’s
response was that she dealt with dozens of emergencies every night and
didn’t recall the nurse asking for help.

“I believe the nurse,” Mahlmeister says. “But where’s the evidence?”

Follow the chain of command. One of the worst cases Restrepo has seen
involved a man in his mid-30s. He’d never had serious medical problems, but
after three days of vomiting and diarrhea, he went to a hospital emergency
department, where he received fluids, then was sent to the med/surg unit for
observation.

“His blood pressure was 60/30,” Restrepo says. It stayed that way for four
hours as his body slowly shut down, although he remained alert and oriented
for much of that time. Neither the nurses nor the physician took any action,
Restrepo says. The patient went into acute renal failure, dehydration, and
septic shock and died. The family sued, and the case eventually settled for
millions of dollars.

“The nurse said in deposition that his blood pressure never changed,”
Restrepo says. “But you can’t sustain a pressure of 60/30. They should know
that. I don’t care if they are day one out of nurses’ training.”

The case is a good illustration of how many nurses end up involved in legal
action, either directly against them or against the facilities where they
work, Restrepo says. She adds, “The failure here is the failure to follow
the chain of command.”

Even when a physician decides to take no action, if the nurse knows
something is wrong, he or she must request help from the charge nurse or the
nursing supervisor and keep asking for help until the patient receives
proper care.

Restrepo has seen many cases involving nurses who believed they had
fulfilled their responsibilities because they called a physician and got an
inappropriate order to simply continue watching the patient. “They were not
using their critical-thinking skills,” she says. “That’s where the lawsuit
comes in.”

Make the patient your partner. Sharing information with the patient can help
reduce errors, Mahlmeister says. Tell your patients or family members what
you are doing for them or giving to them and listen to their response, she
recommends. If they say something like, “My doctor canceled that order,” or
“That dose was supposed to be increased,” the nurse should double-check with
the physician and only proceed if the order appears safe.

Nurses should also pay attention to the concerns of family members, Restrepo
says. They often notice when a patient’s condition has changed. Family
members who are upset and angry and don’t understand what happened to their
loved one or who feel they were mistreated may be more likely to take legal
action, she adds.

Recognize system flaws and report them. “Increasingly, attorneys who sue
look at the bigger picture,” Mahlmeister says. “Juries are more likely to
support claims of negligence against the system when they are provided with
proof that the patient is in an error-prone environment.” This takes the
legal focus off the individual nurse into the realm of corporate negligence.

Spurred by information about systems errors and patient safety, managers are
also starting to pay more attention to correcting system problems, she says.

Mahlmeister recommends finding out if other nurses are experiencing similar
problems and addressing them as a group. Don’t be afraid to file incident or
unusual occurrence reports of system errors or work for changes, she says.

As individuals, nurses should make it clear to others that they will not
practice in a way they feel is unsafe or beyond their scope, Phillips says.
This includes turning down extra shifts if a nurse feels tired or stressed.

Consider carrying individual malpractice insurance. Many nurse legal experts
believe it’s good to have individual malpractice insurance, and carry it
themselves. Nurses may want to speak to an attorney about the advisability
of carrying it, especially if they have a fair number of assets.

“It’s a lot of comfort for a small amount of money,” Randolph says.

Nurses in large healthcare systems are generally covered by their employer
and can be reasonably assured the facility will provide them with legal
counsel for acts “carried out in the normal course of their employment,”
Mahlmeister says. Nurses who work for an agency or in an office should make
sure they are covered, either by their employer’s insurance or their own. No
employer is expected to defend criminal acts, such as assault and battery of
patients, she adds. Nor will any professional liability insurance,
employer-purchased or individually purchased, provide coverage for criminal
acts or intentional torts, such as defamation or false imprisonment.

Most of the time, a facility will protect a nurse involved in a legal
action, Phillips says, but when the facility doesn’t — or if the nurse
faces a hearing in front of a state licensing board — individual insurance
may allow the nurse to hire an attorney without worrying about legal fees.
Individual insurance can also keep nurses from losing their assets in the
unlikely but possible event of a huge judgment against them. During their
orientation, nurses should ask the risk manager whether their employer’s
malpractice insurance policy covers them for all aspects of their work. For
example, in one case, nurses discovered they were not covered for care
rendered while transporting a patient from their facility to a higher level
of care, Mahlmeister says.

After obtaining information from the employer about the coverage provided,
the nurse should explore the possibility of purchasing his or her own
policy. Such a decision is an individual one that each staff nurse should
make.

Individual malpractice coverage varies, so the nurse should read the
coverage and know what he or she is getting, Phillips says. For instance,
the insurance may pay $150 an hour for attorney time, and if an attorney
bills for $250 an hour, the nurse must cover the rest.

The importance of assuming control

Nothing is foolproof, nurse legal experts say. Even the most cautious nurses
sometimes make mistakes. Occasionally, even when nurses do everything right,
patients still die or don’t recover properly, and they or their families may
sue.

Like most things in life, nursing carries a risk, Mahlmeister says. But
nurses can counter that risk by assuming control of their practice, she
adds.

Nurses who feel in control of their practice will call a physician
repeatedly, even when they think the physician might get angry, or tell a
supervisor they can’t work a double-shift because they feel exhausted, or
won’t let anyone interrupt them while they are giving medications.

“That’s a big issue in preventing lawsuits,” she says.

Although she is probably more aware of the risks than most nurses are,
Mahlmeister says she loves the job too much to give it up. Nurses should not
be afraid to practice, she contends, adding, “The risk is absolutely
manageable.”