Because nurses are assuming an ever-widening list of patient-care responsibilities, you may be anxious about the possibility of facing a lawsuit one day. Before learning steps you can take to avoid a lawsuit, you'll need to know more about two terms: negligence and malpractice.
Negligence usually is defined as a failure to exercise the degree of care that a person of ordinary prudence would exercise under the same circumstances. To be successful, a claim of negligence must meet three criteria:
- A person owed a duty to the person making the claim.
- The duty was breached.
- The breach resulted in injury to the person making the claim.
Malpractice is a more restricted, specialized kind of negligence. It's 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.
You can take steps to avoid liability by using caution and common sense and by maintaining heightened awareness of your legal responsibilities. Follow the guidelines below to steer clear of legal pitfalls.
- Know your own strengths … and weaknesses. Don't accept responsibility that you aren't prepared for. If you make an error, claiming that you weren't familiar with the unit's procedures won't protect you against liability.
- Refuse assignments you can't safely perform. You may be assigned to work in a specialized unit, which is reasonable as long as you're assigned duties you can perform competently and as long as an experienced nurse in the unit assumes responsibility for the specialized duties. Assigning you to perform total patient care in the unit is unsafe if you don't have the skills or expertise to plan and deliver the care.
- Delegate safely. Exercise great care when delegating duties because you may be held responsible for subordinates. Inspect all equipment and machinery regularly and be sure that subordinates use them competently and safely. Report incompetent health care personnel through the facility's chain of command.
- Get clear orders. Never treat any patient without orders from his health care provider except in an emergency, and don't practice outside the scope of your license. For example, only physicians, physician assistants, and nurse practitioners prescribe or dispense medication, as defined in each state's laws.
- Don't carry out an order from a health care provider if you have any doubt about its accuracy or appropriateness. Follow your facility's policy for clarifying an ambiguous order. Document your efforts to clarify the order and note whether it was carried out.
- Be particularly careful with medications. Medication errors are the most common and potentially most dangerous of nursing errors. Make sure you use the “five rights” of medication administration: right patient, right drug, right dose, right route, right time.
- Stay on your patient's good side. Trial attorneys have a saying: “If you don't want to be sued, don't be rude.” Always remain calm when a patient or his family gets upset. Patients need to know the truth about mistakes and complications, but you should communicate this information with discretion and sensitivity.
- Don't offer opinions (ever). Avoid offering your opinion when a patient asks what you think is the matter with him. Reply with “just the facts.”
- Before you sign … read! Never sign your name as a witness without fully understanding what you're signing as well as the legal significance of your signature.
- Stick to the FACTs. From a legal standpoint, documenting care is as important as giving the care. If a procedure wasn't documented, the courts assume it wasn't done. Make sure you document all observations, decisions, and actions. The patient's chart, when taken into the courtroom, is a nurse's best evidence of the care given. The documentation should follow the FACT rule: Factual, Accurate, Complete, and Timely.
- Do the right thing. Don't let a patient undergo a surgical procedure unless you're satisfied he's given proper informed consent. Never force a patient to accept treatment he's expressly refused. Don't use equipment that you haven't been taught to use.
- Use restraints as a last resort. Follow guidelines from the Joint Commission on Accreditation of Healthcare Organizations, your state, and your facility about using restraints. Use them only as a last resort; if you must use them, apply and check them correctly, following your facility's policy and procedure. Document exactly the restrained patient's status; the need, number, and kind of restraint used; and the reason for its use. An omission or failure to monitor a restrained patient may result in a malpractice claim.
- Prevent patient falls. Patient falls are a very common area of nursing liability. Patients who are elderly, infirm, sedated, or mentally incapacitated are the most likely to fall. The best way to avoid liability is to prevent falls from occurring in the first place. Institute a fall-prevention protocol in your facility and stick to it.
- Be familiar with advance directives. Be aware of your state's laws about advance directives, such as living wills and durable power of attorney. Patients should be queried about their advance directives on admission, and their wishes should be noted on their chart.
- Follow facility policies and procedures. Be familiar with the policies and procedures of the facility where you work. If they're sound and you follow them carefully, they can protect you against a malpractice claim.
- Provide a safe environment. When providing care, don't use faulty equipment. Clearly mark the equipment as defective and unusable. After repairs are made, don't use the equipment until technicians demonstrate that it's operating properly. Document the steps you took to handle the problems with faulty equipment to show that you followed the facility's policy and procedures.
What to do if you're sued for malpractice
If you make a mistake in your nursing practice, you probably won't be worried about a lawsuit—at least, not initially. You'll be concerned about your patient. Make sure to contact his health care provider, carry out any orders, assess the patient, and document your actions.
But once you've done all that and your patient is stabilized, the fear of a lawsuit may creep into your mind. The best way to minimize the risk of a lawsuit is by carrying out two commonsense steps. First, notify your manager and request the appropriate incident report form. Second, contact your insurer if you have personal insurance. You'll get solid advice on how to respond to the incident.
After taking those steps, focus your attention on the incident report. Fill it in, giving only the facts. Don't draw conclusions about the cause or fault. Don't record impressions. Just record the facts: clean, direct, specific.
NCLEX-RN Review Made Incredibly Easy!
, Springhouse Corp., 2000; “What to Do if You're Sued for Malpractice,” a CE offering sponsored by the Nurses Service Organization and provided by The Nursing Institute at http://www.nursingcenter.com/prodev/ce_online.asp
(click “legal/ethical” topics).