Share this article on:

Are you liable for telephone advice?

Austin, Sally ADN, JD

doi: 10.1097/01.NURSE.0000334058.98940.62

Avoid legal pitfalls when you take a call from a discharged patient who asks for your professional advice about her treatment or condition.

Sally Austin is associate general counsel for Children's Healthcare of Atlanta in Georgia.

Adapted from Austin S, Hold the phone: Are you liable for telephone advice? Nursing2005, October 2005.

SEVERAL DAYS AFTER your patient is discharged from the hospital, she calls the unit and asks you a question about her discharge instructions. What are your legal and professional responsibilities to her in these circumstances?

Under pressure to attract patients and meet community health needs, many facilities expect nurses to handle telephone inquiries from discharged patients as a “customer service.” But answering even a simple question can get you into hot water legally if the patient develops a problem as a result of your advice. (See Four elements of negligence.)

So before you speak, make sure you're not exceeding the scope of nursing practice or providing advice that's not up to the standard of care by taking the precautions I'll outline here.

Back to Top | Article Outline

What's your duty at discharge?

As a staff nurse, you have the duty to ensure that your patient has received and understood the information she needs to care for herself after discharge and to document your assessment and teaching in the medical record. Other members of the health care team, including physicians, nurse practitioners (NPs), and physician assistants (PAs), are responsible for specifying the discharge care and instructions for the patient. Physicians, NPs, and PAs are reimbursed by insurance carriers for the time they spend preparing the patient for discharge and they may have a continuing duty to the patient after discharge. In contrast, a staff nurse's duty to provide follow-up care usually ends when the patient is discharged.

But your duty to the patient resumes if you take a call from her about her medical care or condition after discharge. Once the duty is established, you'll need to meet the same professional standard expected of any reasonably prudent nurse in the same or similar circumstances. So, before accepting this responsibility with any patient, you should:

  • make sure your telephone triage is limited to information or instruction that falls within the scope of nursing practice in your state. You could be charged with practicing medicine without a license if you exceed the scope of nursing practice.
  • know your facility's policy on dispensing and documenting telephone advice. Some facilities have firm policies preventing health care professionals from giving telephone advice or strictly limiting who may do so and under what circumstances. For example, callers may be transferred to the facility's call center, where specially prepared triage nurses handle calls (see All about call centers).
  • make sure your institution's malpractice insurance policies and your personal malpractice insurance cover telephone advice. If your facility prohibits giving phone advice to a discharged patient but you give advice anyway and the patient is harmed as a result, the facility's malpractice insurance probably won't cover you.
Back to Top | Article Outline

Answering the call to duty

If you're satisfied that you can legally and safely respond to a discharged patient's telephone inquiry, you have the following options:

  • Refer her directly to her treating health care provider or (if appropriate) to the emergency department (ED) or urgent care center. It's good practice to alert the treating health care provider or to let the ED or urgent care center know she's coming.
  • Refer her or transfer her call to your facility's call center, if it has one.
  • Try to gather enough information to give the patient sound professional advice if your policies permit this.

If you choose the last option, keep these limitations of assessing and advising a patient by phone in mind.

All ears. When you practice nursing face-to-face, you use most of your senses to assess a patient. But when you assess her over the telephone, you're limited to your sense of hearing. You can't see a puzzled facial expression, feel her skin temperature, or smell a fruity breath odor.

Words must do—yet they may not be enough. Your patient may have trouble accurately describing signs and symptoms. She may also fail to mention crucial information because she doesn't realize its significance. For best results, use an algorithm to ask her questions.

Language difficulties are another potential barrier, particularly if she doesn't have a good grasp of English. And if a parent is describing a child's symptoms, you must rely on her interpretation of the child's condition.

Remember that when you ask your patient questions or give advice, stick to everyday terms so that she understands your meaning. If the caller doesn't speak English, you may need to have a three-way call with a qualified translator or use a translation line. Follow your institution's policies and procedures.

Lack of records. You won't have the patient's medical record at your fingertips, so you can't review her history and prescribed treatment.

Beware of giving advice if any of these barriers prevents you from getting enough information to properly assess and evaluate the patient's problem. If she's harmed because you give her poor advice, you could face significant liability.

Back to Top | Article Outline

How to document your advice

Documenting is essential, not only for the patient's safety but also to protect you from legal problems if someone disputes your version of events. But when you don't have the patient's chart at hand, where do you document?

Your facility should have a policy for this. In some hospitals, for example, the nurse is expected to document the encounter in a special logbook or in an addendum to the medical record. In some difficult cases, it may be appropriate for the nurse's supervisor to listen in on the call.

Some facilities, such as ambulatory surgical centers, ask their nurses to routinely make calls to check on discharged patients. Again, the duty is reestablished between the nurse and the patient once the nurse makes the call. Depending on policy, she may document such calls as an addendum to the patient's chart.

Back to Top | Article Outline

Don't just phone it in

Think twice before giving advice over the phone. Keep your license safe by following facility policy and documenting every interaction with care.

Back to Top | Article Outline

Four elements of negligence

To prevail in a lawsuit for medical negligence, the plaintiff must establish and prove four elements:

  • A duty was established.
  • There was a breach in the standard of care.
  • The patient was injured.
  • The injury to the person was directly related to the breach in the standard of care provided.
Back to Top | Article Outline

All about call centers

Some hospitals have call centers, hotlines, or triage lines staffed by nurses who have sound assessment and communication skills and are specially trained, skilled, and experienced. These nurses should have training as set out in the facility's policy and be supervised until they're competent to answer calls independently. After that, they should be reevaluated periodically.

The nurses should follow specific protocols developed by a medical staff member who's available for staff to consult. The protocols must be approved by the facility's medical staff. The protocol or algorithm prompts the nurse to ask specific questions based on the information provided by the patient. At the end of the decision tree, the nurse provides the patient or patient's family member with directions, such as to call the health care provider, go to the ED, or take some action at home such as drinking clear liquids or taking an over-the-counter medication.

Even with protocols in place, a nurse must still exercise her professional judgment. Each person is responsible and accountable for her own actions. When in doubt, play it safe and direct your patient to the ED.

The protocol also specifies how to document the call. It's wise to document whether or not the caller understands the advice and accepts it. If not, include the reason.

By using protocols, call centers lessen—but don't eliminate—legal risks for staff and the facility. For instance, a facility could be held liable for a patient's injury if he received poor advice based on a flawed protocol or the nurse's inexperience.

© 2008 Lippincott Williams & Wilkins, Inc.