Negligence and Malpractice

Nurse managers frequently serve as mentors and consultants for the nurses whom they supervise. It is imperative that nurse managers have a full appreciation for this area of the law as negligence and malpractice continue to be the major causes of action brought against nursing staff members. Managers cannot guide and counsel their employees unless the managers are fully knowledgeable about this area of the law.

Negligence denotes conduct that is lacking in care and typically concerns nonprofessionals. Many experts equate negligence with carelessness, a deviation from the standard of care that a reasonable person would deliver. Malpractice, sometimes referred to as professional negligence, concerns professional actions and is the failure of a person with professional education and skills to act in a reasonable and prudent manner. Issues of malpractice have become increasingly important to the nurse as the authority, accountability, and autonomy of nurses have increased. The same types of actions may be the basis for either negligence or malpractice; Pender v. Natchitoches Parish Hospital (2003) specifically noted that for malpractice there must be a dereliction of a professional skill. Usually, six elements must be presented in a successful malpractice suit. All of these factors must be shown before the court will find liability against the nurse or institution. These six elements are shown in Table 5-1.

Negligence and malpractice have two commonalities. Both concern actions that are a result of omission (the failure to do something that the reasonable, prudent person or nurse would have done) and commission (acting in a way that causes injury to the patient). Both also concern nonintentional actions—injury results, but the individual who caused the harm never intended to hurt the patient. Remember: the most important point in determining whether an action was truly malpractice/negligence is the non-intent to do any harm to another.

The first element is duty owed the patient, which involves both the existence of the duty and the nature of the duty. That a nurse owes a duty of care to a patient is seldom hard to establish. Often, this is established merely by showing the valid employment of the nurse within the institution. The more difficult part is the nature of the duty, which involves standards of care that represent the minimum requirements for acceptable practice. Standards of care are established by reviewing the institution’s policy and procedure manual, the individual’s job description, and the practitioner’s education and skills, as well as pertinent standards established by professional organizations, journal articles, and standing orders and protocols. Several sources may be used to determine the applicable standard of care. The American Nurses Association (ANA), as well as a cadre of specialty organizations, publishes standards for nursing practice.

The overall framework of these standards is the nursing process. In 1988, the ANA first published Standards for Nurse Administrators (American Nurses Association [ANA], 1988), a series of nine standards incorporating responsibilities of nurse administrators across all practice settings. Accreditation standards, especially those published yearly by The Joint Commission (TJC), also assist in establishing the acceptable standard of care for healthcare facilities. In addition, many states have healthcare standards that affect individual institutions and their employees.

Nurse managers are directly responsible for ensuring that standards of care, as written in the hospital policy and procedure manuals, are current and that all nursing staff follow these standards of care. Should a standard of care be revised or changed, nurse managers must ensure that all staff members who are expected to implement this altered standard are apprised of the revised standard. If the new standard entails new skills, staff members must be educated about this revision before they implement the new standard. For example, if the institution alters a policy regarding nurses removing invasive lines, the nurse manager must first ensure that all nurses who will be performing this skill understand how to perform the skill safely, possible complications that could occur, and the most appropriate interventions to take should those complications occur.

Breach of the Duty of Care Owed the Patient

The second element required in a malpractice case is breach of the duty of care owed the patient. Once the standard of care is established, the breach or falling below the standard of care is relatively easy to show. However, the standard of care may differ depending on whether the injured party is trying to establish the standard of care or whether the hospital’s attorney is establishing an acceptable standard of care for the given circumstances. The injured party will attempt to show that the acceptable standard of care is at a much higher level than that shown by the defendant hospital and staff. Expert witnesses give testimony in court to determine the applicable and acceptable standard of care on a case-by-case basis, assisting the judge and jury in understanding nursing standards of care.

A case example, Sabol v. Richmond Heights General Hospital (1996), shows this distinction. A patient was admitted to a general acute care hospital for treatment after attempting to commit suicide by drug overdose. While in the acute care facility, the patient became increasingly paranoid and delusional. A nurse sat with the patient and tried to calm him. Restraints were not applied because the staff feared this would compound the situation by raising the patient’s level of paranoia and agitation. The patient jumped out of bed, knocked down the nurse who was in his room, fought his way past two nurses in the hallway, ran off the unit, and jumped from a third-story window, fracturing his arm and sustaining other relatively minor injuries.

Expert witnesses for the patient introduced standards of care pertinent to psychiatric patients, specifically those hospitalized in psychiatric facilities or in acute care hospitals with separate psychiatric units. The court ruled that the nurses in this general acute care situation were not professionally negligent in this patient’s care. The court stated that the nurses’ actions were consistent with basic professional standards of practice for medical-surgical nurses in an acute care hospital. They did not have nor were they expected to have specialized psychiatric nursing training and would not be judged as though they did.

Assignment, Delegation, and Supervision

The field of nursing management involves supervision of various personnel who directly provide nursing care to patients. Supervision is defined as the active process of directing, guiding, and influencing the outcome of an individual’s performance of an activity. The nurse manager retains personal liability for the reasonable exercise of assignment, delegation, and supervision activities. The failure to assign, delegate, and supervise within acceptable standards of professional nursing practice may constitute malpractice. In addition, in a newer trend in the law, failure to delegate and supervise within acceptable standards may extend to direct corporate liability for the institution.

Delegation, used throughout all of nursing history, has evolved into a complex, work-enhancing strategy that has the potential for varying levels of legal liability. Before the early 1970s, nurses used delegation to direct the multiple tasks performed by the various levels of staff members in a team-nursing model. Subsequently, the concept of primary nursing and assignment became the desirable nursing model in acute care settings, with the focus on an all-professional staff, requiring little delegation but considerable assignment of duties. By the mid-1990s, a nursing shortage had again shifted the nursing model to a multilevel staff, with the return of the need for delegation.

It is necessary for the nurse manager to know certain definitions regarding this area of the law. Delegation involves at least two people, a delegator and a delegatee, with the transfer of authority to perform some type of task or work. A working definition could be that delegation is the transfer of responsibility for the performance of an activity from one individual to another, with the delegator retaining accountability for the outcome. In other words, delegation involves the transfer of responsibility for the performance of tasks and skills without the transfer of accountability for the ultimate outcome. Examples include an RN who delegates patients’ personal care tasks to certified nursing aides who work in a long-term care setting. In delegating these tasks, the RN retains the ultimate accountability and responsibility for ensuring that the delegated tasks are completed in a safe and competent manner.

Typically, delegation involves the tasks and procedures that are given to unlicensed assistive personnel, such as certified nursing aides, orderlies, assistants, attendants, and technicians. However, delegation can also occur with licensed to licensed staff members. For example, if one RN has the accountability for an outcome and asks another RN to perform a specific component of the overall function, that is delegation. This is typically the type of delegation that occurs between professional staff members when one member leaves the unit/work area for a meal break.

Delegation is complex, because it involves relationships and the ability to communicate with all levels of staff personnel (Potter & Grant, 2004). Multiple players, usually with varying degrees of education and experience and different scopes of practice, are involved in the process. Understanding these variances and communicating effectively to the delegatee involve an understanding of competencies and the ability to communicate with all levels of staff personnel.

Assignment is the transfer of both the accountability and the responsibility from one person to another. This is typically what happens between professional staff members. The nurse manager assigns patient care responsibilities to other professional nurses working in the same unit of the institution or community healthcare setting. The level of accountability for the nurse manager who assigns as opposed to delegates is fairly obvious, although there can be some accountability in both instances. The degree of knowledge concerning the skills and competencies of those one supervises is of paramount importance. The doctrine of respondeat superior has been extended to include “knew or should have known” as a legal standard in both assigning and delegating tasks to individuals whom one supervises. If it can be shown that the nurse manager assigned/delegated tasks appropriately and had no reason to believe that the nurse to whom tasks were assigned/delegated was not competent to perform the task, the nurse manager potentially has either no or minimal personal liability. The converse is also true; if it can be shown that the nurse manager was aware of incompetence in a given employee or that the assigned/delegated task was outside the employee’s capabilities, the nurse manager becomes substantially liable for the subsequent injury to a patient.

Nurse managers have a duty to ensure that the staff members under their supervision are practicing in a safe and competent manner. The nurse manager must be aware of the staff members’ knowledge, skills, and competencies and should know whether they are maintaining their competencies. Knowingly allowing a staff member to function below the acceptable standard of care subjects both the nurse manager and the institution to potential liability. For example, in Fairfax Nursing Home, Inc. v. Department of Health and Human Services (2003), a nursing home was held liable for inadequate practices and procedures in monitoring ventilator-dependent patients. In that case, a professional staff member delegated the task of suctioning a ventilator-dependent patient to a nurse’s aide. After suctioning the patient, the aide failed to ensure that the ventilator was reconnected to the patient’s tracheostomy and the patient subsequently died. The professional nurse was also found to be liable for her failure to ensure that the task had been correctly performed.

Some nurse practice acts also legislate fines and discipline for the nurse manager who assigns/delegates tasks or patient care loads that make a nursing assignment unsafe. Means of ensuring continuing competency are expected and may include continuing education programs and assignment of a staff member to work with a second staff member to improve technical skills.

Duty to Orient, Educate, and Evaluate

Most healthcare institutions have continuing education departments to orient nurses who are new to the institution and to supply in-service education addressing new equipment, procedures, and interventions to existing employees. Nurse managers also have a duty to orient, educate, and evaluate. Nurse managers and their representatives are responsible for the daily evaluation of whether nurses are performing safe and competent care. The key to meeting this requirement is reasonableness and is determined by courts on a case-to-case basis. Nurse managers should ensure that they promptly respond to all allegations, whether by patients or staff, of incompetent or questionable nursing care. Nurse managers should thoroughly investigate allegations, recommend options for correcting the situation, and follow up on recommended options and suggestions.

In Bunn-Penn v. Southern Regional Medical Corporation (1997), a male emergency center technician was accused of sexually assaulting a female patient. Before this incident, nurses had complained to the nurse manager that the male technician seemed too eager to assist female patients and that he stayed too long with female patients while they were undressing. The nurse manager spoke to the technician about these concerns. The nurse manager gave him detailed instructions regarding how he was to conduct himself in the future. She then monitored his activities carefully and noted no further evidence of inappropriate behavior. In finding that there was no liability on the part of the hospital, the court was positive in its praise of the nurse manager, noting that she had fulfilled her duty by counseling and monitoring the employee and by acting promptly when the issues were first presented to her. The court also noted that the nurse manager had monitored this employee for an 18-month period and had filed favorable periodic reviews in his personnel folder.

Failure to Warn

A newer area of potential liability for nurse managers is failure to warn potential employers of staff incompetencies or impairment. Information about suspected addictions, violent behavior, and incompetency is of vital importance to subsequent employers. If the institution has sufficient information and suspicion to warrant the discharge of an employee or force a resignation, subsequent employers should be advised of those issues. In addition, the state board of nursing or agency that oversees disciplinary actions of professional and nonprofessional nursing staff should also be notified whenever there is cause to dismiss an employee for incompetency or impairment unless the employee voluntarily enters a peer-assistance program.

One means of supplying this information is through the use of qualified privilege to certain communications. In general, qualified privilege concerns communications made in good faith between persons or entities with a need to know. Most states now recognize this privilege and allow previous employers to give factual, objective information to subsequent employers. Note, however, that the previous employee must have listed the nurse manager or institution as a reference before this privilege arises.

Staffing Issues

Three issues arise under the general term staffing. These include (1) maintaining adequate numbers of staff members in a time of advancing patient acuity and limited resources; (2) floating staff from one unit to another; and (3) using temporary or “agency” staff to augment the healthcare facility’s current staffing. Though each area is addressed separately, common to all three of these staffing issues is the requisite of collaboration among nurse managers in addressing the needs for the entire institution or healthcare agency.

Accreditation standards, specifically those of TJC and the Community Health Accreditation Program (CHAP), as well as other state and federal standards, mandate that healthcare institutions provide adequate staffing with qualified personnel. This applies not only to the number of staff but also to the legal status of the staff. For instance, some areas of an institution, such as critical care areas, postanesthesia care areas, and emergency care centers, must have greater percentages of RNs than LPNs/LVNs. Other areas, such as the general nursing areas and some long-term-care areas, may have equal or lower percentages of RNs to LPNs/LVNs or nursing assistants. Whether understaffing exists in a given situation depends on the number of patients, care acuity scores, and number and classification of staff. Courts determine whether understaffing existed on an individual case basis.

California was the first state to adopt legislation that mandated fixed nurse-to-patient ratios, passing this historic legislation in 1999. Although an additional 15 states have introduced similar legislation since that time, California remains the only state that has set requirements for every patient care unit in every hospital in the state (ANA, 2009). These types of ratios require set nurse-to-patient ratios based solely on numbers of patients within given nursing care areas and do not consider issues such as patient acuity, level of staff preparation, or environmental factors. Though a first step toward beginning to ensure adequate numbers of nurses, many states are now moving toward the concept of safe staffing rather than specific nurse-to-patient ratios.

A minority of states have passed safe staffing measures rather than mandating ratios. Generally, these safe staffing measures call for a committee to develop, oversee, and evaluate a plan for each specific nursing unit and shift based on patient care needs, appropriate skill mix of RNs and other nursing personnel, the physical layout of the unit, and national standards or recommendations regarding nursing staffing. Washington State’s plan, for example, also includes a provision that the staffing information is posted in a public area of the nursing unit and updated at least once per shift and that the information is available to patients and visitors upon request (Safe Nurse Staffing Legislation, 2008).

Although the institution is ultimately responsible for staffing issues, nurse managers may also incur liability because they directly oversee numbers of personnel assigned to a given unit. Courts have looked to the constant exercise of professional judgment, rather than reliance on concrete nurse-patient ratios, in cases involving staffing issues. Thus nurse managers should exercise sound judgment to ensure patient safety and quality care rather than rely on exact nurse-to-patient ratios. For liability to incur against the nurse manager, it must be shown that a resultant patient injury was directly caused by staffing issues and not by the incompetent or inappropriate actions of an individual staff member. To prevent nurse manager liability, he or she must show that sufficient numbers of competent staff were available to meet nursing needs.

Guidelines for nurse managers in inadequate-staffing issues include alerting hospital administrators and upper-level managers of concerns. First, however, the nurse manager must do whatever is under his or her control to alleviate the circumstances, such as approving overtime for adequate coverage, reassigning personnel among those areas he or she supervises, and restricting new admissions to the area. Second, nurse managers have a legal duty to notify the chief operating officer, either directly or indirectly, when understaffing endangers patient welfare. One way of notifying the chief operating officer is through formal nursing channels, for example, by notifying the nurse manager’s direct supervisor. Upper management must then decide how to alleviate the staffing issue, either on a short-term or a long-term basis. Appropriate measures could be closing a unit or units, restricting elective surgeries, hiring new staff members, or temporarily reassigning personnel from other departments. Once the nurse manager can show that he or she acted appropriately, used sound judgment given the circumstances, and alerted his or her supervisors of the serious nature of the situation, the institution and not the nurse manager becomes potentially liable for staffing issues.

Many states now prohibit the use of mandatory overtime by nurses. Generally these laws state that the healthcare facility may not require an employee to work in excess of agreed to, predetermined, and regularly scheduled daily work shifts unless there is an unforeseeable declared national, state, or municipal emergency or catastrophic event that is unpredicted or unavoidable and that substantially affects or increases the need for healthcare services. In addition, many of these laws define “normal work schedule” as 12 or fewer hours; employees are protected from disciplinary action or retribution for refusing to work overtime; and monetary penalties can result from the employer’s failure to adhere to the law. Some states also mandate that healthcare facilities are required to have a process for complaints related to patient safety. Note that nothing in these laws negates voluntary overtime.

Floating staff from unit to unit is the second issue that concerns overall staffing. Institutions have a duty to ensure that all areas of the institution are staffed adequately. Units temporarily overstaffed because of low patient census or a lower patient acuity ratio usually float staff to units that are understaffed. Although floating nurses to areas with which they have less familiarity and expertise can increase potential liability for the nurse manager, leaving another area dangerously understaffed can also increase potential liability.

Before floating staff from one area to another, the nurse manager should consider staff expertise, patient-care delivery systems, and patient-care requirements. Nurses should be floated to units as comparable to their own unit as possible. This requires the nurse manager to match the nurse’s home unit and float unit as much as is possible or to consider negotiating with another nurse manager to cross-float a nurse. For example, a manager might float a critical care nurse to an intermediate care unit and float an intermediate care unit nurse to a general unit. Or the nurse manager might consider floating the general unit nurse to the postpartum unit and floating a postpartum nurse to labor and delivery. Open communications regarding staff limitations and concerns, as well as creative solutions for staffing, can alleviate some of the potential liability involved and create better morale among the floating nurses. A positive option is to cross-train nurses within the institution so that nurses are familiar with two or three areas and can competently float to areas in which they have been cross-trained.

The use of temporary or “agency” personnel has created increased liability concerns among nurse managers. Until recently, most jurisdictions held that such personnel were considered independent contractors and thus the institution was not liable for their actions, although their primary employment agency did retain potential liability. Today, courts have begun to hold the institution liable under the principle of apparent agency. Apparent authority or apparent agency refers to the doctrine whereby a principal becomes accountable for the actions of his or her agent. Apparent agency is created when a person (agent) holds himself or herself out as acting in behalf of the principal; in the instance of the agency nurse, the patient cannot ascertain whether the nurse works directly for the hospital (has a valid employment contract) or is working for a different employer. At law, lack of actual authority is no defense. This principle applies when it can be shown that a reasonable patient believed that the healthcare worker was an employee of the institution. If it appears to the reasonable patient that this worker is an employee of the institution, the law will consider the worker an employee for the purposes of corporate and vicarious liability.

These trends in the law make it imperative that the nurse manager considers the temporary worker’s skills, competencies, and knowledge when delegating tasks and supervising the worker’s actions. If there is reason to suspect that the temporary worker is incompetent, the nurse manager must convey this fact to the agency. The nurse manager must also either send the temporary worker home or reassign the worker to other duties and areas. The same screening procedures should be performed with temporary workers as are used with new institution employees.

Additional areas that nurse managers should stress when using agency or temporary personnel include ensuring that the temporary staff member is given a brief but thorough orientation to institution policies and procedures, is made aware of resource materials within the institution, and is made aware of documentation procedures. It is also advisable for nurse managers to assign a resource person to the temporary staff member. This resource person serves in the role of mentor for the agency nurse and serves to prevent potential problems that could arise merely because the agency staff member does not know the institution routine or is unaware of where to turn for assistance. This resource person also serves as a mentor for critical decision making for the agency nurse.