DEFINING AND TRACKING MALPRACTICE
The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) defines negligence as a "failure to use such care as a reasonably prudent and careful person would use under similar circumstances." JCAHO defines malpractice as "improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory. Malpractice is a cause of action for which damages are allowed." Malpractice is defined variously under state nurse practice acts, institutional policies, and federal guidelines such as JCAHO standards, all of which may be taken into consideration in court.
Several factors have contributed to the increase in the number of malpractice cases against nurses.
* Delegation. As a result of cost-containment efforts in hospitals and HMOs, nurses are delegating more of their tasks to unlicensed assistive personnel. Delegation of some of these tasks may be considered negligence according to a given facility's standards of care or a state's nurse practice act.
* Early discharge. Patients are being discharged from hospitals at earlier stages of recovery and with conditions requiring more acute and intensive nursing care. 5 Nurses may be sued for not providing care or not making referrals appropriate to the patient's condition.
* The nursing shortage and hospital downsizing have contributed to greater workloads for nurses, increasing the likelihood of error.
* Advances in technology require nurses to have knowledge of a variety of technologies' capabilities, limitations, and safety features.
* Increased autonomy and responsibility of hospital nurses in the exercise of advanced nursing skills have also brought about greater risk of error and liability.
* Better-informed consumers are more likely to be aware of malpractice issues and to recognize insufficient or inappropriate care.
* Expanded legal definitions of liability have held all professionals to higher standards of accountability. 1 For example, because of the expanded scope of practice of advanced practice nurses, courts have held them to a medical standard of care.
Negligence issues that prompted malpractice lawsuits. Documentation describing the negligent behavior often used terms such as failure to, lack of, incomplete, ineffective, and improper. The categories of negligence are: failure to follow standards of care, failure to use equipment in a responsible manner, failure to communicate, failure to document, failure to assess and monitor, and failure to act as a patient advocate.
Failure to follow standards of care.{ breach}
Standards such as hospital policies have evolved to protect consumers from substandard care. In defining acceptable levels of care-the ordinary and reasonable care required to ensure that no unnecessary harm comes to patients. standards of care provide criteria for determining whether a nurse has breached duty in the care owed to the patient. Standards of care are derived from sources such as state boards of nursing, professional nursing associations.
Failure to use equipment in a responsible manner.
Nurses must know the safety features, capabilities, and limitations of any equipment they use, as well as its hazards. Nurses must follow the manufacturers' usage recommendations and refrain from modifying the equipment. The Safe Medical Devices Act of 1990 requires that all medical device-related adverse incidents that result in death or serious illness or injury be reported to the manufacturer and the Food and Drug Administration within 10 working days.
Example:
In Chin v. St. Barnabas Medical Center (1988), the Superior Court of New Jersey, Appellate Division, reversed a trial court's judgment against a physician alone and said that other hospital personnel should also be held liable. 12 The case involved the death of a 45-year-old woman, Ms. Chin, from a massive air embolism during a diagnostic hysteroscopy. The woman's estate had brought a medical malpractice suit against all the providers who had possibly played a role in the events leading to her death: the physician who performed the procedure, three operating room nurses (one scrub nurse and two circulating nurses), the hospital, and the manufacturer of the hysteroscope, an optical device with a pump used in examining the uterus. During the procedure, fluid is pumped continuously into the uterus to enhance the view of its interior. The device requires the connection of four tubes: an irrigation tube through which fluid flows into the uterus, a suction tube that draws fluid out of the uterus, a tube that connects a source of compressed nitrogen to the pump, and an exhaust tube. Because one of the tubes was connected to the hysteroscope incorrectly, nitrogen was pumped into the patient's uterus, causing a fatal air embolism in the coronary arteries.
At trial, all parties accepted the theory that the exhaust hose was the source of the gas that killed Ms. Chin; who was at fault for attaching the hysteroscope incorrectly was disputed. Evidence presented at trial revealed that the two nurses assigned to the surgical procedure had neither hospital training nor experience in the hysteroscope's use. Evidence also showed that the supervising nurse who made the assignments was unaware of the nurses' lack of experience. No expert opinion on the standard of care was presented at trial.
At the end of the trial, the judge instructed jury members to use their "common knowledge" to decide if the nurses deviated from their duty in caring for Ms. Chin. (The common-knowledge standard applies when the facts of a case are such that a layperson's common knowledge and experience would enable a juror to conclude, without hearing expert testimony, that a duty of care has been breached.) The judge also informed the jury that because Ms. Chin was unconscious at the time of the procedure, she was blameless in her own death and at least one of the defendants clearly was at fault-shifting the entire burden of proof from the plaintiff to the defendants (that is, each defendant had to prove that he or she was not at fault).
The jury awarded the plaintiff $2,000,000 in damages and found the defendants liable in the following proportions: the physician, 20%; the experienced circulating nurse, 25%; the inexperienced circulating nurse, 20%; and the hospital, 35%. The scrub nurse and the manufacturer were cleared of all liability.
Immediately after the verdict, the trial judge ruled in favor of the hospital's motion that questioned the validity of applying the common-knowledge standard in this case; the judge reapportioned liability solely to the physician. In granting the hospital's motion, the judge said the application of the common-knowledge standard had been an error. But in the physician's appeal, the appellate court reversed the trial court's decision and essentially restored the original jury verdict, saying that each defendant had not entirely established the lack of fault in Ms. Chin's death and that the trial court had not erred in applying the common-knowledge standard.
Failure to assess and monitor and failure to communicate.
Changes in the health status of a patient can be gradual or sudden and nurses are usually the first to see the changes and take action. A nurse's accuracy in assessing and monitoring and her timely reporting of changes in health status to a physician can often mean the difference between life and death. Vital aspects of communication besides timeliness in reporting the change include persistence in notifying the physician of the change, and accuracy in communicating the nature and degree of the change.
Example:
In Busta v. Columbus Hospital Corporation (1996), the Montana Supreme Court affirmed the judgment and orders of the District Court of the Eighth Judicial District. While he was a postoperative patient at Columbus Hospital in Great Falls, Mr. Busta died from injuries sustained in a fall from his third-floor window; apparently he had tried to climb down on an improvised rope. At trial, the nurse assigned to care for Mr. Busta testified that during her last evening visit with him, he had experienced an episode of tachycardia and hypertension. He had also behaved atypically, desiring isolation and refusing all nursing care and his prescribed medication, known to have adverse effects, including confusion, anxiety, and psychosis. The nurse did not report the symptoms and the change in behavior to the physician. She also testified that when she observed the patient at midnight, he appeared to be sleeping; she did not reassess his vital signs.Mr. Busta's surgeon testified that, because of the mind-altering adverse effects of the patient's medication, he would have reassessed his patient if he had been notified of the changing signs and symptoms. Expert testimony opined that the nurse was negligent in failing to adequately monitor Mr. Busta on the evening and night before he died, and in failing to report the constellation of signs and symptoms to the surgeon; and that the hospital was negligent in failing to maintain a safe environment. The jury found that the negligence of Columbus Hospital combined with the patient's contributory negligence caused the patient's injuries and death; the jury apportioned 70% of the liability to the hospital and 30% to Mr. Busta. The jury found that Mr. Busta and his estate were damaged in the amount of $5,000 and his heirs, $800,000. Based on the jury's apportioned liability, the district court entered a judgment in favor of Mr. Busta's estate in the amount of $3,500 and in favor of his heirs, of $560,000.
Failure to document.
Documentation-the purpose of which is primarily to communicate patient information among providers-must accurately reflect the nursing process, showing evidence of nursing assessment and diagnosis, planning for nursing intervention, implementation and evaluation of planned interventions, and patient response.
Failure to act as a patient advocate.
Legal and ethical issues often become entwined in health care settings, and nurses must be knowledgeable in both. The ANA's Code of Ethics for Nurses with Interpretive Statements provides nurses with a framework for ethical decision making and defines the role of the nurse as patient advocate.
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