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July 15, 2019

How to Manage Risk of Medical Malpractice

Summary:

If a nurse inadvertently commits an error and a patient is injured, the settlement payments and legal expenses average $201,916.

Photo Courtesy of Pexels

For nursing professionals, medical malpractice is the 200,000-pound monster in the room. If a nurse inadvertently commits an error and a patient is injured, and then the patient decides to sue the nurse for malpractice, the resulting settlement payments and legal expenses can cost, on average, a total of $201,916.

In this article, we’ll discuss what nursing professionals need to know about medical malpractice, look at a legal claim study and offer some risk management recommendations on how you can reduce the chance of getting bitten by the malpractice monster.

What Is Malpractice?

When you pass your licensing exams, your state board of nursing provides you with a professional license that certifies that you have the knowledge necessary to provide treatment and care in your state.

Malpractice is defined as the failure to provide the degree of care required under the scope of your license that results in an injury. Legally, four elements must exist for malpractice to occur:

  1. Duty: A nurse-patient relationship is present. The nurse has the duty to treat the patient according to the standards of care recognized by the nursing profession.
  2. Breach: A breach of that standard has been established. Examples: Failure to notify the attending physician of a change in the patient’s condition; failure to properly complete a patient assessment; or failure to administer the correct dose of a medication.
  3. Cause: The patient sustained an injury caused by the nurse’s error.
  4. Harm: The injury resulted in damages, such as pain, medical bills or loss of income.

Patients tend to define malpractice more loosely. They may initiate a lawsuit because of the perception of wrongdoing. Real or perceived, win or lose, an allegation of malpractice can be devastating and typically results in an investigation by your state board of nursing. Depending on the outcome of that investigation, action may be taken against your license.

For these reasons, making good risk management habits routine can help increase the likelihood of positive patient outcomes, reducing the chances of a lawsuit alleging malpractice.

See also: What Shapes Malpractice Coverage?  

Who Can Allege Malpractice?

The injured patient can allege malpractice, as can legal counsel or, in the case of a minor, it could be the parents or guardian. In the event of a death claim, it could be the estate of the deceased party.

Examples of Damages

When a malpractice lawsuit is initiated, injured parties will seek damages to “make them whole.” Tangible losses are called economic damages. Intangible losses are called non-economic damages.

  • Economic Damages
    • Medical expenses
    • Loss of income
    • Funeral expenses
  • Non-Economic Damages
    • Mental anguish
    • Pain and suffering
    • Loss of consortium

Notice of Claim

A notice of a claim informs you of legal proceedings against you. The notice outlines the allegations that caused the injury and will include a demand for services or money. A claim notice can also mean the filing of a suit or the starting of arbitration proceedings.

Notice of a claim may include any of the following:

  • Summons/complaint
  • Letter demanding free services or money
  • Oral threat or complaint
  • Notice of arbitration

Act Early: Spotting and Reporting Incidents

Recognizing potential incidents, acting quickly and reporting them to your supervisor or employer’s risk manager and to your professional liability insurance carrier may help reduce the likelihood of a claim. If a patient sustained an injury as a result of any of the following scenarios, report it immediately to document the incident. Such incidents may include:

  • Slip and fall accidents
  • Treatment-related injuries such as burns or fractures
  • Complaints about unusual pain or discomfort
  • Concerns over adverse treatment results
  • Medication-related injuries

Malpractice Claim Dos and Don’ts

  • Do
    • Contact your manager or supervisor
    • Contact your organization’s risk manager
    • Contact your malpractice liability insurer
  • Don’t
    • Add or delete information in the patient’s chart
    • Try to resolve the situation on your own
    • Discuss the matter with anyone other than your defense attorney or your insurer


Legal Case Study

This case study involving an ER nurse illustrates how easy it is to get drawn into a malpractice lawsuit—and how following good risk management procedures can help avoid a guilty verdict.

Situation

A patient was brought to the ER where he was well-known to the department staff. He was intoxicated, agitated and aggressive. For the patient’s safety, four point physical restraints were ordered. Per hospital protocol, security staff applied the restraints and checked the patient’s person for contraband.

The ER nurse performed patient monitoring and assessment checks every 15 minutes as ordered, missing only one check to care for a critically ill patient. The missed check, along with the ER nurse’s monitoring and assessment findings, were fully documented.

Shortly after the ER nurse performed a 15-minute check, the patient attempted to burn off his restraints with a cigarette lighter, igniting his bed linens and clothing. The patient suffered severe burns over 25% of his body, including both hands, causing him to lose his fingers on one hand.

Allegations

The patient sued the attending physician, the hospital and ER nurse. The allegations against the nurse included failure to properly assess and monitor the patient and failure to provide proper care in a safe environment.

Results

Although the patient suffered life-changing injuries, it was determined that the ER nurse acted within the standard of care. The nurse’s documentation of events made an aggressive defense possible and ultimately successful.

While this was a favorable outcome for the ER nurse, the resulting malpractice claim took 12 years and two trials to resolve, and the total cost to defend the ER nurse was $500,000.

Nurse Practice Act

To understand the standard of care required, know the Nurse Practice Act in your state. You can find your state’s Nurse Practice Act and keep abreast of changes to the law by visiting the National Council of State Boards of Nursing website.

The Importance of Good Documentation

The ER nurse’s documentation was key to successfully defending her case. A patient’s record is a legal document. Your notes can provide evidence of the treatment you provided, as well as acts against any miscommunication with that care.

As a general rule, if it wasn’t documented, it wasn’t done. Your legal team can prove you provided specific treatment and care if it is found in the patient’s record.

  • Document your patient care assessments, observations, communications and actions in a timely, accurate and complete manner.
  • Never alter a record for any reason unless it is necessary for the patient’s care.
  • If it is essential to add information to the record, properly label the delayed entry.
  • Never add any documentation to a record for any reason after a claim has been made.

Dos and Don’ts of Documentation

  • Do
    • Read and act on progress notes of previous shift
    • Be specific and objective when you document your observations
    • Document complete assessment data
    • Document interventions and status of patient following any intervention
    • Communicate any changes in the patient’s condition in a timely manner
  • Don’t
    • Use vague expressions
    • Record a symptom without including what you did about it
    • Use shorthand or abbreviations unless they are approved
    • Give excuses
    • Record for someone else
    • Record care ahead of time

Policies and Procedures

Wherever you work, the facility will be engaged in patient safety measures. Make sure you know and understand your facility’s policies and procedures for preventing errors and ensuring positive outcomes.

Learn the documentation standard in your facility for how to chart, correct errors, make late entries and copy/paste in the electronic record.

See also: Empathy Transforms Health Insurance  

Should a malpractice claim occur, your defense team will analyze your documentation, and when complete records are available can use it to build a strong defense. It can also weaken a defense if it looks like the entries were copied and pasted from a previous patient.

Lastly, know your facility policy on incident reporting and chain of command.

Key Takeaways for Protecting Your Career

  • Know and comply with your state scope of practice requirements, Nurse Practice Act and facility policies, procedures and protocols.
  • Follow documentation standards established by nurse professional organizations and comply with your employer’s standards.
  • Develop, maintain and practice professional written and spoken communication skills.
  • Emphasize continuing patient assessment and monitoring.
  • Maintain clinical competencies aligned with the relevant patient population and healthcare specialty.
  • Invoke the chain of command when necessary to focus attention on the patient’s status and any change in condition.

While no healthcare professional is immune to the 200,000-pound malpractice monster, you keep it from affecting your career by making sound risk management procedures a part of your practice. Following the recommendations outlined in this article is a good place to start.

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About the Author

Jennifer Flynn, CPHRM, is risk manager for Nurses Service Organization in the healthcare division of Affinity Insurance Services, specializing in risk management.

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