After viewing the video, ‘Delegation’ and reading in your textbook, p

Nursing Negligence: Guidelines for Care

Video Title: Nursing Negligence: Guidelines for Care

Originally Published: 2007

Publication Date: Mar. 20, 2020

Publishing Company: Medcom Inc.

City: United States

ISBN: 9781529727906

DOI: https://dx.doi.org/10.4135/9781529727906

© Medcom Inc., 2007

[MUSIC PLAYING]

NARRATOR: Today, there are tremendous pressures on the time of everyone in health care, particularly on nurses. As a result of cost-cutting efforts made in all areas of health care, the delegation of some traditional nursing tasks is occurring. However, this should be done carefully so that legal issues, such as negligence, do not arise.

NARRATOR [continued]: While damage caps in some states have reduced negligence suits against nurses and limited the amount of some awards for nursing negligence, nurses are at risk for negligence lawsuits, and more than 400 judgments are made against nurses every year. Any act of negligence can have serious consequences

NARRATOR [continued]: for patients, for the reputations and licenses of the health care professionals involved, and for the accreditation and reputation of the whole institution.

HEALTH CARE PROVIDER: Emily is bleeding. I think she's abrupted. Her water has broken.

HEALTH CARE PROVIDER: I think she's crashing.

HEALTH CARE PROVIDER: OK.

NARRATOR: In this program, we will discuss the legal elements of negligence and how delegation of tasks to unlicensed assistive personnel, such as Certified Nursing Assistants, or CNAs, and others, affects your liability. We will also discuss some of the most common types

NARRATOR [continued]: of nursing negligence. Daniel Giroux is an attorney specializing in medical law. He has been involved in thousands of medical-malpractice lawsuits. Nikki Lind is a practicing registered nurse. She has been a registered nurse for eight years.

DANIEL GIROUX: I've been practicing for close to 20 years, and currently, my specialty is medical malpractice. So I represent individuals who've been harmed through medical neglect. So I go after either hospitals, health care providers, nurses, nurse practitioners, mid-levels, anybody in the health care

DANIEL GIROUX [continued]: field. The biggest thing, as it relates to nurses, I think, that I can say is that nurses are the patient advocate. I mean, they are the ears, the eyes of the patients, and they're the ones who have got to bring to the attention of a physician or a mid-level, problems, or changes, or deviations from a patient's current status.

DANIEL GIROUX [continued]: I think the biggest places where we see harm is that when there's not contemporaneous notes made. There's not accurate charting that is done. There not being an advocate for the patient. Even when they know that a physician's not doing what they're supposed to do, there's things that they can do, like implement what's known as the "chain of command." I think, from my standpoint, in my career,

DANIEL GIROUX [continued]: those are the things where we see nurses get in trouble.

NARRATOR: In its simplest terms, "negligence" can be defined as a "failure to exercise the degree of care that a reasonable nurse would exercise under the same or similar circumstances." But there's more to it than that. Legally, negligence consists of four elements which must be proven.

NARRATOR [continued]: First, it must be proven that you owe a duty to the patient– that is that a nurse-patient relationship exists. This relationship can be established in a number of ways. If you are assigned to care for the patient, or if you observe any unattended patient who obviously needs help, you, as a nurse, owe that patient a duty to provide help.

SAGE © Medcom Inc., 2007

SAGE Video

Page 2 of 9 Nursing Negligence: Guidelines for Care

NARRATOR [continued]: If you are in a clinical setting, and you give nursing advice to someone who asks for it, in the eyes of the law, you have established a nurse-patient relationship. Even if another caregiver is present, if you observe a patient receiving inferior care, you have a duty to take action, either to help with the care

NARRATOR [continued]: yourself or summon help.

HEALTH CARE PROVIDER: All right, let's see if that works.

DANIEL GIROUX: I've had a case against a facility here in the Midwest where a nurse was required to follow standard postpartum orders. Within an hour after any type of delivery, that is when a mother is more likely to have a hemorrhage. And in that particular case, for the first 20 minutes,

DANIEL GIROUX [continued]: every five minutes, you're checking vitals, and every 10 minutes, and every 15 minutes. And it's pretty standard throughout the United States what they're supposed to do. But in this particular case, the nurse wasn't checking vitals for an hour. And ultimately, what happened when she finally decided to check the vitals, unfortunately, the patient was very hypotensive.

DANIEL GIROUX [continued]: Her blood pressure was 80 over 40. She had a heart rate of 140. And she was in a late-stage hemorrhage. And ultimately, she required an emergent hysterectomy. That's the way they control the bleeding. She had a, pretty much, complete blood-volume resuscitation,

DANIEL GIROUX [continued]: and she ended up passing away.

HEALTH CARE PROVIDER: Her temperature is 99.

HEALTH CARE PROVIDER: And her pulse?

HEALTH CARE PROVIDER: Is 60.

NARRATOR: Your duty is to provide care that meets the legal standard of care. This is the care that a reasonable and prudent nurse would be expected to provide. Many sources help define the legal standards of care. These can include your state's board of nursing; federal statutes, such as the patient's bill of rights;

NARRATOR [continued]: state statutes, such as Nurse Practice Act; and other laws setting standards of care. Other sources of the legal standard of care are guidelines and policies for nursing-care delivery issued by organizations, such as the Joint Commission; professional nursing organizations,

NARRATOR [continued]: such as the American Nurses Association, ANA; specialty-nursing organizations, such as the Association of Preoperative Registered Nurses, AORN, and American Association of Critical Care Nurses, AACN; authoritative nursing texts and journals;

NARRATOR [continued]: your own institution's policies and procedures manuals; and published court cases involving similar circumstances. Many times, health care providers are informed that there are policies and procedures but fail to take the time actually, to review and understand them.

NARRATOR [continued]: Policies and procedures are commonly used in negligence claims. Standards of care can be variable and can change on a yearly, or even monthly, basis. With that said, nurses have been sued for such things like failing to follow a fall protocol; failing to follow procedures for a specific skill,

NARRATOR [continued]: such as administering medications or inserting a nasogastric tube; or failure to make use of equipment correctly or responsibly. If you have set up equipment for anything other than a manufacturer's intended purpose, or against policy and procedure, you could be liable. You could also be sued for malpractice for using equipment that you're not familiar with

SAGE © Medcom Inc., 2007

SAGE Video

Page 3 of 9 Nursing Negligence: Guidelines for Care

NARRATOR [continued]: or haven't been trained to use.

NIKKI LIND: You follow your orders. They're there for a reason. Those things are in place because we've ironed out the kinks. They figured out what we need to do, and that's why we do what we do. We need to follow those procedures. We follow our orders sets. You have lots of education when you're in those areas, as well, why we're doing what we're doing,

NIKKI LIND [continued]: and that's why they're important because there could be bad outcomes. And we never want that to happen.

NARRATOR: The second legal element of negligence that must be proven is that you breached your duty to the patient.

HEALTH CARE PROVIDER: We'll be gone for just a little bit. Call us if you need something, OK?

PATIENT: All right.

HEALTH CARE PROVIDER: OK.

NARRATOR: A breach is any act that falls below the standard of care. The breach may be by an act or failure to act, Either giving care in an unsafe manner or omitting necessary care. A breach of duty may also be an error in assessment or planning that causes damage to the patient.

HEALTH CARE PROVIDER: OK, look straight ahead. Head up.

NARRATOR: An assessment error, for example, might be as simple as improperly gathering information or not monitoring a patient's condition as frequently as needed. Or a breach may involve more complex issues of judgment, such as not recognizing the significance of a symptom, or a change in the patient's condition,

NARRATOR [continued]: or not communicating this effectively to the physician or your supervisor. An assessment error or breach can be not reporting, in a timely manner, critical values, vital signs, assessment findings, and lack of results for medications or interventions.

NARRATOR [continued]: A planning error might be developing an inadequate patient care plan that fails to address one of the patient's needs. For example, a planning error occurs when a care plan for a bedridden patient does not include enough repositioning. This places the patient at risk for pressure sores and blood

NARRATOR [continued]: clots. The third element of negligence that must be proven is that your breach of duty caused injury or damages to the patient. It is important to recognize that it isn't necessary for your action to enforce the patient to sustain an injury.

PATIENT: Nurse?

NARRATOR: An action or omission that simply allowed it to happen is enough. For example, if you are caring for a patient in a post-op unit who has received medications that caused disorientation or confusion, as in this scene, and you leave the bed rail down, you have created a condition

NARRATOR [continued]: that makes it foreseeable that the patient could fall out of bed. Even if other factors contribute to the patient's injury, as long as your breach of duty was a substantial causative factor, it is enough under the law. The fourth element of negligence that must be proven is that there was actual harm to the patient.

NARRATOR [continued]: Some injury or a worsening of the patient's condition must occur as a consequence of your breach of duty. In this case, the actual harm of the arm injury is a direct consequence of the fall.

SAGE © Medcom Inc., 2007

SAGE Video

Page 4 of 9 Nursing Negligence: Guidelines for Care

DANIEL GIROUX: And there's a lot of things that go into that. When you're talking about, what's their personal exposure, well, it depends on the potential harm to a particular patient. Obviously, more harm, a debilitating injury that is a life-sustaining injury that's going to require a medical expense for the remainder of their life–

DANIEL GIROUX [continued]: typically the higher those types of cases will draw in terms of a verdict or some type of settlement. So you've got to balance that with what level of insurance do they have? What are their limits on their policy? And if they have a policy that is not high enough, then potentially, they can expose their personal assets.

WOMAN: Well, not specifically. It's been quite a while ago.

NARRATOR: If all of these conditions are proven in court, the patient can recover what are called "compensatory damages." These are monies that are meant to compensate the patient for the cost of care, lost wages, and pain and suffering. In rare cases, if the negligence was especially reckless,

NARRATOR [continued]: some states allow patients to be awarded punitive damages as well to punish the reckless caregiver. Many insurance policies do not cover punitive damages, and a caregiver may be personally liable for them.

DANIEL GIROUX: I've had a case against a facility here in the Midwest where a nurse was required to follow standard postpartum orders. Within an hour after any type of delivery, that is when a mother is more likely to have a hemorrhage. And in that particular case, for the first 20 minutes,

DANIEL GIROUX [continued]: every five minutes, you're checking vitals, and every 10 minutes, and every 15 minutes. And it's pretty standard throughout the United States what they're supposed to do. But in this particular case, the nurse wasn't checking vitals for an hour. And ultimately, what happened when she finally decided to check the vitals, unfortunately, the patient was very hypotensive.

DANIEL GIROUX [continued]: Her blood pressure was 80 over 40, she had a heart rate of 140, and she was in a late-stage hemorrhage, and she ended up passing away. And in that case, it was just a matter of had the vital signs have been properly recorded when they were supposed to and brought to the attention of the physician, there's things at the early stages of hemorrhage, that could have been done to abate the ultimate problem

DANIEL GIROUX [continued]: and the death in that particular case.

NIKKI LIND: Well I actually used to work in labor and delivery. And so it's highly important, especially in that area, you're doing vitals, and fundal checks, and everything you're supposed to do. And if you don't do it, that's one of the scary stories that could come about. And you just follow your orders.

NIKKI LIND [continued]: They're there for a reason. Those things are in place because we've ironed out the kinks. They figured out what we need to do, and that's why we do what we do. We need to follow those procedures, we follow our orders sets. You have lots of education when you're in those areas,

NIKKI LIND [continued]: as well– why we're doing what we're doing. And that's why they're important because there could be bad outcomes. And we never want that to happen.

HEALTH CARE PROVIDER: After you pump up, you slowly release the valve.

NARRATOR: In an attempt to keep health care costs under control, more of the work of nursing is being shifted to unlicensed assistive personnel and CNAs. By taking over some of the lesser-skilled and less-critical tasks, CNAs free up registered nurses for supervision and to concentrate on the critical portions of the nursing process itself.

SAGE © Medcom Inc., 2007

SAGE Video

Page 5 of 9 Nursing Negligence: Guidelines for Care

NARRATOR [continued]: The use of more licensed vocational and licensed practical nurses, certified nursing assistants, feeding assistants, and even personnel with limited training, such as orderlies and hospital volunteers, has created, in many facilities, more of a team approach to nursing, with more tasks delegated

NARRATOR [continued]: to the lesser-skilled personnel. But even with delegation, responsibility remains largely with a registered nurse. In general, unlicensed assistive personnel must be under the supervision of a registered nurse and can only do tasks that a registered nurse has

NARRATOR [continued]: delegated to them. However, effective delegation extends far beyond the act of simply telling someone to go do a task. It requires a high level of critical thinking and professional judgment. According to the American Nurses Association and the National Council of State Boards of Nursing,

NARRATOR [continued]: the guidelines for effective delegation can be summarized using the five Rs– the delegation or assignment must be the right task given under the right circumstances to the right person using the right instructions. And the person delegating must also

NARRATOR [continued]: provide the right supervision and evaluation. The nurse must determine the right tasks for delegation to assistive personnel. It is important to remember that the registered nurse may never delegate any portion of the nursing process that depends on his or her professional judgment.

NARRATOR [continued]: for example, the assessment of a patient, developing and evaluating the nursing plan of care for the patient, and interpreting and analyzing data are the responsibility of the registered nurse and cannot be delegated because they require the nurse's knowledge, expertise, and judgment.

HEALTH CARE PROVIDER: How is her temperature doing?

NARRATOR: To ensure the right circumstances, the nurse must always take into account the patient's condition, the setting, and the available resources when delegating any task.

HEALTH CARE PROVIDER: Her temperature is 99.

HEALTH CARE PROVIDER: Heart rate?

HEALTH CARE PROVIDER: Is 60.

NARRATOR: When dealing with a critical patient, the nurse should not be assigning duties that he or she should be assessing themselves. Of course, when selecting a person to delegate to, the nurse must take into account the knowledge and skill level of that individual. And once a task is delegated to an unlicensed person,

NARRATOR [continued]: that person may not subdelegate the task to someone else. The delegated task must be clearly described, including all the details about what, when, and why. Delegation does not end a nurse's responsibility.

NARRATOR [continued]: The person delegating must either supervise the task or assure that supervision is available. If necessary, the registered nurse must teach the skill being delegated to the person and supervise the performance of the task. There can be no delegation unless there is an appropriate level of supervision.

NARRATOR [continued]: Supervision means initial and ongoing direction, including direct observation if necessary. And the nurse must remain available for procedural guidance and evaluation of the task. Remember, it is negligence on the part of the nurse if the nurse fails to delegate or supervise properly.

SAGE © Medcom Inc., 2007

SAGE Video

Page 6 of 9 Nursing Negligence: Guidelines for Care

HEALTH CARE PROVIDER: Call the doctor. I need to have help in here right now.

NARRATOR: In some states, the nurse also may be found legally responsible for any harm to the patient that results.

HEALTH CARE PROVIDER: And we've upped her IV?

HEALTH CARE PROVIDER: We have upped her IV.

HEALTH CARE PROVIDER: OK.

HEALTH CARE PROVIDER: Emily, Can you hear us? [INTERPOSING VOICES]

HEALTH CARE PROVIDER: Can you hear us?

HEALTH CARE PROVIDER: Can you please call her doctor straight away, please? We need an OR right away.

NARRATOR: Studies have identified the most common legal allegations that have resulted in successful negligence lawsuits filed against nurses. The most common is patient falls. According to the Centers for Disease Control, more adults over 65 die from fall-related injuries

NARRATOR [continued]: than any other condition. Guidelines have been established for mitigating the risk of patient falls. Many hospitals have established frameworks for assessing risk factors for patient falls, implementing intervention for reducing the risk of falling and protecting the patient from injury if a fall should occur.

NARRATOR [continued]: Staff must maintain responsibility for patient safety at all times, even when family is present. Always refer to the most up-to-date policies and procedures of your institution. Another common problem leading to negligence lawsuits is the improper technique and maintenance of IV lines. One example would be a failure to use proper ascetic technique

NARRATOR [continued]: when starting the IV. And another would be failure to monitor the IV- insertion site often enough, allowing the development of an infection or infiltration. Other patient- safety issues are also a problem. One example is not contacting the physician prior to the placement of restraints and ensuring

NARRATOR [continued]: that you have followed the institutional policy by not properly assessing the patient or documenting the use of alternative interventions to restraints. A major source of negligence lawsuits is medication errors. According to one study in 56 facilities, the most common types of medication errors

NARRATOR [continued]: are administering the improper dosage, or administering a medication to the wrong patient, or failing to administer a needed medication. Medication errors are most often caused by distractions, and especially heavy workloads. But that is no excuse for a very serious breach of duty.

NARRATOR [continued]: Additional breaches involving medications may include such things as failure to recognize signs and symptoms of drug toxicity, failure to request an order for drug levels, failure to use aseptic technique, failure to document the injection site, failure to check for drug allergies,

NARRATOR [continued]: and failure to identify potential medications side-effects that placed the patient at risk– for example, giving an antihypertensive agent to a patient who already has low blood pressure, or giving antiplatelet medication to a patient who has active bleeding. Administering medication according

SAGE © Medcom Inc., 2007

SAGE Video

Page 7 of 9 Nursing Negligence: Guidelines for Care

NARRATOR [continued]: to the doctor's orders is a common nursing task. If the nurse fails to follow the orders, she or he will be liable for malpractice if the patient is injured. The nurse may also be liable for negligently following otherwise proper orders, like injecting a medication into muscle instead of a vein, or injecting the wrong patient.

DANIEL GIROUX: I just had a case three years ago against a facility, wherein a physician's letter– or his number 1 actually look like a 4. And my client ended up getting 4 micrograms of dilaudid rather than 1 microgram of dilaudid.

DANIEL GIROUX [continued]: And she went into respiratory distress within 20 minutes and died within 60 minutes.

NIKKI LIND: It's hard to question a doctor when they're giving you an order or they are in a situation, because sometimes I've come in– like when I work with residents or less-seasoned doctors, they sometimes are put into situations where they're not always 100%,

NIKKI LIND [continued]: and they don't have 100% of the knowledge that they need to take care of that situation. And so there have been instances where the nurse has more experience, and so they will question what their orders are and what their follow-up processes, or what their plan of care is. And you can suggest seeking another doctor's opinion

NIKKI LIND [continued]: or just bringing to light, this is what I think is going on, or this is what I think might be the outcome if we don't look at this.

HEALTH CARE PROVIDER: Oh, hi. I'm glad you're here. I was going to show–

NARRATOR: Another source of negligence lawsuits is improperly performing a treatment. This can be from equipment that is set up or used improperly or from simple procedures in which the nurse did not follow the proper standards of care. You should always stay current on the procedures and equipment used in your field of practice.

NARRATOR [continued]: A further source of negligence claims is failure to respond to a patient's call for assistance. You have a duty to respond in a timely manner, especially for patients whose condition may change rapidly, who might have a severe drug reaction, or who may have self-destructive tendencies.

NARRATOR [continued]: And finally, one of the common forms of nursing negligence is failing to properly supervise someone to whom you have delegated a task. Remember that the whole process of delegation is one of judging the skill level of the unlicensed person you have selected; teaching the skill, if necessary; and providing adequate supervision

NARRATOR [continued]: to be sure that the task is performed properly. Many other problems stem from inadequate communication, improper documentation, improper techniques, and other failures to exercise the degree of care that a reasonable nurse would be expected to exercise under the same circumstances.

NARRATOR [continued]: Failure to communicate and failure to document can be grounds for a malpractice suit against an individual nurse.

NIKKI LIND: Usually these cases– things like this– they're happening months, years after the event. So charting is huge because if you don't chart it, it didn't happen. So clear, concise non-emotional, the facts of what's going on– that's what you need to put in your charting, making sure that you're not only doing what you're supposed to do,

NIKKI LIND [continued]: but advocating for your patient. But you need to make sure that that's documented that you did it because you can't prove later that you did something if it's not charted.

SAGE © Medcom Inc., 2007

SAGE Video

Page 8 of 9 Nursing Negligence: Guidelines for Care

NARRATOR: If you fail to communicate all patient information to a physician, to provide a patient with relevant discharge information, or to communicate assessment findings to the nurse on the next shift, you could be liable. Proper charting and documentation are incredibly important for ensuring that a patient

NARRATOR [continued]: receives the care they need. As far as the court is concerned, if it wasn't documented, it never happened. In the next program in this series, we will discuss practical steps you can take to prevent acts of negligence. This program also contains several brief scenes of nursing activities that may or may not involve negligence,

NARRATOR [continued]: so you can test your understanding.

SAGE © Medcom Inc., 2007

SAGE Video

Page 9 of 9 Nursing Negligence: Guidelines for Care