August 31, 2013

Nurses and Mandatory Reporting Laws

Avoiding Liability Bulletin – April 2013

Federal and state laws require that certain individuals, particularly those who work in health care, with the elderly, with children, and other vulnerable populations, have an affirmative duty to report to a specified state agency when violence occurs against those populations.

Nurses are listed in most, if not all, mandatory reporting statutes. Statutes include child abuse and neglect reporting statutes, medical neglect of children and the elderly, elder abuse in the community or in nursing homes reporting laws, and domestic violence.

Reporting statutes have certain conditions and protections the reporter must meet and possesses in order to ensure that the reporting is not done “willy-nilly”. Conditions may vary slightly but most reporting statutes include that the mandated reporter:

Have a “good faith belief” or a “reasonable suspicion” that an injury or injuries are the result of abuse or neglect;
The reporter enjoys immunity from civil, criminal and professional licensure actions if the report meets criteria #1;
“Good faith” is a presumption that attaches to all reports and must be rebutted by another (e.g., family member, alleged victim); and
Provides that the report is made confidentially so that the mandated reporter’s identity is not made public. 1

When a mandatory duty to report violence against an individual or individuals exists, there is no exception to the directive: one must report without fail. This translates into no excuse for not doing so. As a result, nurse-patient confidentiality, another staff member or administrator telling you not to report your concerns, or a family member pleading with you not to report your observations do not affect your duty to report.

Indeed, if you as a nurse fail to report an instance of violence when required to do so, you could face professional disciplinary action by the state board of nursing, a loss of any certifications you hold (e.g., certification as a school nurse), and criminal prosecution (usually a misdemeanor). 2

So, what should you do when you suspect that abuse and/or neglect is occurring with one of your patients? Some guidelines to consider include:

Watch, look and listen to your patient. Gather as much information as you can about the patient’s concerns;
Assess the patient constantly for any signs of physical abuse, mental anguish, fear, financial abuse or unusual behavior;
Document your observations and conversations pursuant to your facility or agency’s policy and if forms are required, use them;
Share your concerns with the individual identified in your facility or agency policy to do so (e.g., CNO, Administrator, Risk Manager);
Visit websites in your state that deal with reporting abuse and neglect to obtain guidance, especially in the event your concerns are not supported by your agency or facility; most have direct hot-lines for you to report your concerns without any agency support;
Consult with a nurse attorney or attorney to help guide you with the reporting, especially if you are not supported by your employer;
If you are in home health nursing, in the ED, or in a long-term facility, and you or your patient is threatened, either of your lives are at risk, or injury is a possibility, call security (if available) and 9-11; and
When filing your report, do so accurately and completely, including all content the agency report requires.

FOOTNOTES

Nancy J. Brent (2001), “Issues Related To Violence”, in Nurses And The Law: A Guide To Principles And Applications. 2nd Edition. Philadelphia: W.B. Saunders Company, 280-283.
Id.

GENERAL REFERENCES

Kathy Karageorge and Rosemary Randall (Office on Child Abuse And Neglect, Children’s Bureau) (2008). The Role Of Professional Child Care Providers In Preventing And Responding To Child Abuse. Available at: https://www.childwelfare.gov/pubPDFs/childcare.pdf.
Accessed February 24, 2013.
Center Of Excellence On Elder Abuse And Neglect. University of California, Irvine, School of Medicine, at: http://www.centeronelderabuse.org/ . Accessed February 24, 2013.

DISCLAIMER

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.
REFERENCES

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About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Happy Nurses Week!

Avoiding Liability Bulletin – May 2013

May 6-13, 2013 is National Nurses Week. This year’s theme is “Delivering Quality and Innovation In Patient Care”.

Quality care is something that you strive for on a regular basis as a practicing nurse. Indeed, your annual evaluations measure your success in meeting that goal. So, too, is your devotion to continuing education, whether in the form of CE programs, an advanced degree, or certification in a specialty in nursing. And, your focus on wellness for the patient, his or her family, and the community in which your patient lives gives added support to ensuring quality nursing care.

As you probably know all too well (since you have been reading these Bulletins for some time!), quality care clearly involves the provision of non-negligent care. It also involves ensuring patient safety. Your continual vigilance against breaching your standard of care and keeping a watchful eye out for safety risks to the patient speaks volumes in terms of your desire to provide quality care to your patients.

Quality care also involves the human side of nursing practice. Listening to your patient’s concerns and fears, educating the patient and the family about illness and illness prevention, and advocating for your patient are but a few examples of the human aspects of the practice of nursing.

There are many innovations that exist, and are proposed, for the provision of quality care. You must strive to take part in those innovations. You may also propose some of your own. In either case, analyzing current practices in the provision of nursing care and where and how improvements can occur is an ever-present responsibility.

In addition to focusing on the patient and his or her family, quality care also includes caring for yourself. A safe workplace, adequate staffing, teamwork, feeling your best when you report for work, good interpersonal relationships with your fellow health care team, and knowing one’s limitations are all a part of quality care for you as the nurse. Without caring for yourself, you can’t possibly provide quality care for another.

It is an exciting time to be practicing nursing. Yes, there are some frustrating times too, ones you know all too well. But change requires openness, a willingness to explore and try new approaches, and knowledge that change can be uncomfortable at times. But, if you keep at it, learn from the changes, and take advantage of the new opportunities afforded you, your patients will benefit, and I bet you will too.

Again, Happy Nurses Week! Thanks to all of you for what you do to provide quality care and to your development and participation in those patient care innovations that lie ahead in this, and subsequent, years.

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What are the Defenses to Allegations of Assault and Battery?

Avoiding Liability Bulletin – February 2013

When a patient alleges that you committed an assault or a battery against him or her, you would probably be fearful that you have few ways in which to protect yourself from these unproven assertions. Luckily, there are several defenses to both intentional torts.

Privilege

The first defense against assault and battery is privilege. It applies when a patient, as an example, attacks you and you defend yourself. In order for the defense to apply, however, the attack must be truly so (called “justifiable motive”). If a suit were filed by a patient alleging either tort, the court will require evidence that the defense of privilege applies. In other words, you would have to establish truthfully and factually that you were justified in defending yourself. (1)

Mistake of Law or Fact

This defense might also be raised along with the defense of privilege. Instead of being acting in self-defense, with this defense, you thought you were going to be assaulted or battered, so you acted to protect yourself. Again, the application of this defense would depend upon truthful testimony from you as the nurse, truthful testimony from the patient, and truthful testimony from other witnesses that you believed an assault or battery was going to take place. (2)

Self-Defense

This defense is just what it says: you were acting to protect yourself from harm and in the situation, you had no recourse to other lawful means (e.g., calling security). Only reasonable force is accepted when using this defense when the attacker is using non-deadly force. (3)

If the patient or a family member is using deadly force (e.g., a gun or some other instrument that threatens your life or serious bodily harm), then you as the nurse would be permitted to use deadly force to protect yourself as well. (4) In other words, striking a patient or family member who is about to hit you would be OK, but grabbing his arm and breaking it would not be acceptable. By the way, there is no duty to retreat from the attacking patient or family member unless it can be done safely. (5)

Consent

Consent as a protection against allegations of assault and battery means that the patient has given his or her informed consent for the treatment in question. The consent can’t be fraudulently obtained nor can the patient be coerced into giving consent. Also, as the nurse, you can’t exceed the parameters of the consent the patient has given.

In the health care setting, consent can be express, as with a verbal “yes” or a written document. It can also be inferred. As an example, if you as the nurse are doing an assessment of the patient upon admission, and you tell the patient you are going to take his or her vital signs and the patient extends his arm for you to take his blood pressure, consent has been given. In contrast, if the patient says “Oh, no you aren’t”, then consent has been withheld.

Remember that in an emergency, consent for treatment is implied unless there are directions to the contrary (e.g., a living will or a DNR order).

Necessity

This defense is similar to the privilege defense. It involves the need to interfere with the rights of another—freedom from fear of harmful contact or harmful contact– in order to protect that person. For example, if a patient in the ER is threatening to injure another patient in the ER and goes toward the patient in a threatening manner, the nurse protects that patient by pushing him or her out of the offending patient’s reach so he or she is not harmed. (6)

Statute of Limitations

The state statute of limitations, the time frame within which an individual must file a case in court, is another protection against allegations of assault and battery. Usually, such a suit must be filed within 2 years from the time the tort took place, but not all states use this time limitation.

Assault and battery assertions against you can be defended. It is always best not to say anything about the allegations except to your attorney so that he or she can evaluate the situation from which the allegations arose and advise you as to your defenses in the situation.

FOOTNOTES

Henry Campbell Black (1991). Black’s Law Dictionary. 6th Edition. St. Paul, MN: West Publishing Company, 832.
Robert D. Miller (2006), “Civil Liability”, in Problems In Health Care Law. 9th Edition. Sudbury, MA: Jones and Bartlett, Chapter 11 (587-680).
Henry Campbell Black, supra note 1, at 947.
Id.
Id.
Robert D. Miller, supra note 2.

GENERAL REFERENCE:

Dan Dobbs (2001). The Law Of Torts. Volume I. St. Paul, MN: West Group, Chapters 23-35, 47-66 (with regular updates).

DISCLAIMER

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What is Informed Consent for a Surgical Procedure and was it Obtained?

Avoiding Liability Bulletin – October 2013

In Miller v. Markowitz, Dalecki and Memorial Hospital For Cancer & Allied Disease 1, one issue in the case was whether or not the patient’s informed consent for a esophagogastroduodenoscopy (“EGD”) was obtained. The patient consulted with Dr. Markowitz, a gastroenterologist because of epigastric burning, dyspepsia, and abdominal pain. At that time, she also had an “Endoscopy Nursing Patient Assessment”. 2 The patient denied any history of high blood pressure, high cholesterol, vascular disease, fainting, chest pains or shortness of breath. Although seen by a cardiologist several years prior to this assessment, no diagnoses of any cardiac diseases were made and her medical records revealed none.

The patient decided to undergo the recommended EGD and was seen by the hospital anesthesiologist and a GI fellow who went over the procedure with the patient. They discussed the procedure and its risks and the risks and benefits of anesthesia respectively. The patient’s cardiac status was also reviewed. 3

While waiting in the pre-anesthesia area, the patient vomited, but the procedure went forward. A nurse anesthetist sedated the patient with general anesthesia at about 4:08 p.m. and the patient was intubated about sixty seconds later. The surgery began at 4:11 p.m. and was completed at 4:19 p.m. After assessing that the patient was spontaneously “ventilating and arousable, the nurse anesthetist extubated the patient in the OR at roughly 4:30 p.m. and then moved the patient to the PACU.

Unfortunately, in the PACU, the patient’s heart rate slowed and she appeared pale. A code was called at 4:33 p.m. but resuscitation efforts were not successful and the patient died at 5:00 p.m. An autopsy indicated that the patient had atherosclerotic cardiovascular disease.

The patient’s executor filed a suit against the physicians and the hospital alleging that the defendants had failed to obtain approval from her cardiologist that she was a candidate for anesthesia; had failed to obtain informed consent; had failed to timely “resuscitate and oxygenate” the patient during resuscitation; and had failed to take a proper medical history prior to the surgical procedure. 4

Dr. Markowitz was dropped from the case after it was filed and only Dr. Daleki and the hospital remained as defendants.

The defendants filed several motions, the important one for this Bulletin being a summary judgment on the allegation of failure to obtain informed consent. The Court explained that when moving for a summary judgment in New York, the defendants must show that the plaintiff was “indisputably informed of the foreseeable risks, benefits, and alternatives of the treatment rendered,” and “that a reasonably prudent patient would not have declined to undergo the [procedure] if he or she had been informed of the potential complications”. 5

Three physician expert witnesses testified that the review of the patient’s medical record revealed that her consent was properly obtained; that absent a history of cardiac problems, not obtaining a cardiac consult was within the standard of care for the surgeon; and that nothing in the patient’s medical records indicated she had any cardiac disease or condition. Rather, the one expert who was board certified in internal medicine with a subspecialty certification in cardiovascular disease stated that the patient died of an “unexpected, unpredictable, and unavoidable” cardiac arrhythmia. 6

Relying on the expert testimony of three physicians, the Court held that the hospital and Dr. Daleki presented evidence that they were entitled to a summary judgment (no need to go to a trial for judgment as no liability existed) as to the lack of informed consent count. It opined that the experts’ testimony supported the patient was sufficiently advised of the risks and benefits of general anesthesia and the procedure.

As noted above, the executor also alleged that the defendants were professionally negligent in their care of the patient. This aspect of the case will be discussed in the next Bulletin, with a focus on the care provided by the nurse anesthetist.

FOOTNOTES

2011 NY Slip Op 30417 (N.Y. Sup. Ct. 2011).
Id. at 1
Id. at 2.
Id. at 3.
Id. at 3, 4.
Id. at 5.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK ADVICE FROM A COMPETENT PROFESSIONAL.

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Are You at Risk for an Allegation of Patient Abandonment?

Avoiding Liability Bulletin – October 1, 2013

Many nurses are concerned about patient care situations that may result in an allegation of patient abandonment. It might be helpful to explore the definition of patient abandonment, how it applies to nursing practice, and considerations to avoid such an allegation.

Patient abandonment was a legal liability term applied only to physicians in the early days of health care delivery because physicians were the primary patient care providers before other health care providers came on the scene, such as advanced practice nurses (APNs). 1 In addition, staff nurses were not usually seen as separate, responsible health care providers when providing patient care, so their legal liabilities in earlier times were minimal.

As you know, all that has changed. In terms of patient abandonment, it has been expanded to apply to many, if not all, health care providers. The American Nurse’s Association’s definition of patient abandonment is “a unilateral severance of the established nurse-patient relationship without giving reasonable notice to the appropriate person so that arrangements can be made for continuation of nursing care by others…..”. 2

Perhaps this definition is most clearly applied to an APN. As an example, if an APN refuses to continue treatment for a particular patient and expresses this at the patient’s appointment, telling the client that from that point on, no more services will be provided by the APN, and the patient sustains an injury as a result of this unilateral termination of services, or is in need of immediate continued care, the patient could have a cause of action against the APN for abandonment.

Another example of patient abandonment is when a home health care nurse does not adhere to the contractual relationship between the patient and the nurse/home health agency for daily nursing care or other home health services. The RN does not allow for adequate notice to the patient and his/her family that home health care services will no longer be provided and an injury occurs or immediate continued care is needed. 3

Nurses working in a health care delivery system are not immune from patient abandonment allegations. When a nurse accepts a patient assignment and then leaves the facility without handing over the patient’s care to another qualified nurse or individual, patient abandonment can be alleged. 4

Not only does a nurse in the above situation possibly face an allegation of patient abandonment, the nurse may also face employer sanctions, including termination, and potential action by a state board of nursing. 5

So, how can you avoid allegations of patient abandonment? Some considerations include:

Recognize that once a nurse-patient relationship is established, the potential for patient abandonment allegations are present if your absence results in an injury or a clear risk to the patient and you have not provided for the safety and care of the patient;
If an APN or an RN in a more “independent” practice setting, never terminate care without giving adequate notice to the patient so that he or she can obtain continuing care from another APN or RN;
Allow at least 30 days before care is actually terminated and inform the patient (and the family) that if there is an emergency, care will be provided to the patient during that 30 day time period;
Document the termination of care in the patient record and in a letter sent to the patient and/or the family, certified mail, return receipt requested;
Never leave your place of work for whatever reason without reporting off to your supervisor or other designated superior;
When leaving a unit or assignment at work, never leave the unit or patient without “handing off” the patient to a competent nurse colleague; and
If you are concerned about an unsafe assignment given you in your workplace, utilize whatever procedures or forms are available to you to document your concerns and, at the same time, protect yourself and your patient from any adverse outcome.

FOOTNOTES

“Abandoning Patients” (1993). The Law, Science & Public Health Law Site. Available at http://biotech.law.lsu.edu/books/lbb/x226.htm. (Accessed October 1, 2013).
American Nurses Association (2009). Position Statement: Rights of Registered
Nurses When Considering A Patient Assignment. Silver Spring, MD: author.New York State Nursing Practice Information: RN & LPN Practice Issues: FAQ (on Patient Abandonment) (2002), 1. Available at http://www.op.nysed.gov/prof/nurse/nurseabandon-qa.htm . (Accessed October 1, 2013).
Id.
ANA, supra note 2, at 8.

GENERAL REFERENCE

American Nurses Association (2001). Code For Nurses With Interpretive Statements. Silver Spring, MD: Author.

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Was the Extubation of the Patient the Cause of her Death?

Avoiding Liability Bulletin – November 2013

In last month’s bulletin, Miller v. Markowitz, Dalecki and Memorial Hospital For Cancer & Allied Disease, 1 was reviewed with a focus on the issue of informed consent for the EGD procedure. In addition to an allegation of lack of informed consent for the procedure, the patient’s executor also alleged that professional negligence against the physicians and the hospital, pleading that the defendants failed to timely “resuscitate and oxygenate” the patient during a code.

Although not named as a defendant, but brought into the suit as an employee of Memorial Hospital, the nurse anesthetist’s actions were critical in determining whether her extubation of the patient caused her death.

The nurse anesthetist testified that she assessed the patient after the EGD procedure and found the patient “ventilating and arousable”. She also placed her hand over the patient’s mouth to make sure the patient was exchanging air. 2 She did not document the exact time of the extubation, however.

Shortly after arriving in the PACU, the patient’s heart rate slowed and she appeared pale. A code was called but the code was unsuccessful and the patient died. The autopsy indicated the patient had atherosclerotic cardiovascular disease.

One of the key issues during the resuscitation efforts was whether the intubation during the resuscitation was correctly done. One of the nurses in the PACU testified during her examination before trial (“EBT”) that the placement auscultation was “negative”, meaning that the nurse anesthetist could not hear breathing sounds. 3

However, many days after the EBT, when the nurse reviewed her EBT, she changed her testimony with regard to the negative auscultation note. The change went from a clear statement that the nurse anesthetist could not hear breathing signs to a statement that the nurse was not able to clearly read her documentation on the CPR record. As a result, she continued that in view of the other documentation in the CPR record, “it is clear that good placement of the endotracheal tube was achieved”. 4

A board certified anesthesiologist testified for the defendants. He stated that the nurse anesthetist properly extubated the patient at 4:30 p.m.; that the cardiac arrest at 4:33 p.m. could not have been due to oxygen levels; and that despite the nurse’s correction of her testimony, the intubation was successful.

The plaintiff’s expert witness, another board certified anesthesiologist, testified that the patient should not have been extubated until after she was “wide awake and gagging on the breathing tube”. He further opined that the fact that the nurse anesthetist put her hand over the patient’s mouth to assess breathing indicated that the patient was not wide awake.

The expert further testified that the assumption that the extubation of the patient was at 4:30 p.m., before she was wide awake, caused gastric juice to enter the patient’s trachea and bronchial tree because her “protective airway reflex” was not yet back. 5 This condition caused “an intense contraction of circular involuntary muscles around the bronchi” that disrupted the flow of oxygen to the heart and lungs for 14 minutes. This substantial loss of oxygen and eventual cardiac arrest, along with the patient’s coronary artery disease, caused the patient’s death. In short, the nurse anesthetist breached her standard of care with this patient.

The plaintiff’s expert also tesitifed that the resuscitation efforts were inadequate.

As a result of the testimony of both experts, the Court held that the summary judgment requested by the defendants on the professional negligence counts was denied, and the case was to continue in the trial court for a determination as to whether the defendants’ actions caused the death of the patient.

There is no reported case decision to date concerning what happened at the trial level after the case was ordered to be continued there. However, the case is an interesting one for several reasons. First, it illustrates the importance of complete and legible documentation in any patient care record. Had the PACU nurse been able to testify with certainty about her documentation, the Court may have ruled differently.

Also of interest in relation to documentation is the fact that the nurse anesthetist did not document the exact time of the intubation after the surgical procedure. Again, had she done so, along with details about the patient’s condition prior to extubation, the documentation may have changed the outcome of the case.

FOOTNOTES

2011 NY Slip OP 30417 (N.Y. Sp. Ct. 2011).
Id., at 3.
Id.
Id.
Id., at 7.

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