Nursing Law – Being Accused of Malpractice

Nursing Law – Being Accused of Malpractice

Being accused of Malpractice!

I read an article that stated that the risk of a nurse being accused of malpractice during their career was very high, almost inevitable in fact.  True it was a USA article and yes we all know that the USA is a very litigious society.  However, the statement justified some consideration.

Firstly I don’t think Australian nurses face this level of risk but there is no doubt that the profession is held to very high standards due to our Professional codes and society’s expectations.  Clients are not passive recipients nor simply grateful for services.  They feel they have paid for these and know the service should be of the highest standard.

What we need to be aware of is just how a nurse could attract a complaint of malpractice.  Some nurses fear that every negative outcome of care could be grounds for suing them for malpractice.  This isn’t true.  The law is well aware that complex systems, complex needs and clinical judgement requirements can underpin poor outcomes.

What is established is that should a complaint be made there will be an investigation to determine if there was a nurse-patient relationship, did the nurse have a responsibility thus a duty of care and if the nurse provided that care to an acceptable, professional standard.

What we need to be very aware of is the fact that it is not only direct clinical care that might be the focus of the complaint or the investigation.  There are numerous failures that can be captured under nursing malpractice.  All of the list below have in fact resulted in civil cases against a nurse.

Failure to document fully and in a timely manner opens the way for gaps in knowledge, lack of continuous care over shifts, communication lapses and as you well know, errors in medication or failures to implement new orders.

Always remember if there has been discussion or phone orders requiring action you need to document these fully and immediately.  Should you actually write something then got too busy to perform the task you are at great risk, don’t chart ahead of actually performing the action.

Another key area for actions is failure to monitor.  What this captures is situations like not checking in on a patient more frequently after a patient complained of increased pain, not reporting a patient problem or change in status, not implementing increased checks and follow up when there has been some adverse or unexpected response to medication.

While we all believe we are effective communicators there are times when information does not flow appropriately or quickly.  Failure to communicate new orders, patient requests or problem situations often lies behind complaints.  It is not just letting the doctor know, if there are issues with staff, inappropriate or poor behaviour we have a duty to report this.  Should a situation escalate the fact that a supervisor was not informed or the matter not resolved it is a gap that investigators will question.

Frequently nurses find themselves in situations that they know are going to cause problems.  If the nurse believes the diagnosis, treatment or medication order is incorrect they can feel very vulnerable and fear confronting the doctor or senior who is giving direction.  You have a duty to protect the client, your professional standards require the nurse advocates for the patient.  So where do you stand?

This situation has been tested in court in Ohio, USA and below a quote from the judge in that case.

“A nurse who concludes that an attending physician has misdiagnosed a condition or has not prescribed the appropriate course of treatment may not modify the course set by the physician simply because the nurse holds a different view. To permit that conduct would allow the nurse to perform tasks of diagnosis and treatment denied to the nurse by law. However, the nurse is not prohibited from calling on or consulting with nurse supervisors or with other physicians on the hospital staff concerning those tasks when they are within the ordinary care and skill required by the relevant standard of conduct (Berdyck v Shinde, 1993).

I think that is a good strategy should you find yourself paralysed with fear and doubt.  The bottom line is protect the client from actual and potential risks and never let your guard down or get casual about those risks.  Demonstrate your professionalism and competence by going that extra step and documenting appropriately.

Know your patient and work with them.  If they recognise you genuinely care and are taking all the steps you can on their behalf to a professional standard, even if things go wrong they won’t be taking aim at you with a complaint.

There are some fabulous webinar recordings by Pam Savage regarding Nurses and the Law on the Nurses for Nurses Network. The  Nurses for Nurses Network provides good information and CPD  on an array of nursing topics in a range of easy learning ways including webinars and quizzes on the latest information that Nurses need to know – remember the Nurses for Nurses Network was created by Australian Nurses for Nurses!


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