Nurse managers use their autonomy to make decisions about practice situations. They are accountable for carrying out supervisory responsibilities; proper notification; assessing the competency of staff; training, orientation, and evaluation of staff; reasonable staffing decisions; and monitoring and maintenance of professional treatment relationships with clients, called nonabandonment (Aiken, 2004; Guido, 2010). 1. A duty of care was owed to the injured party. 2. There was a breach of that duty. 3. The breach of the duty caused the injury (causation). Common clinical practice areas that give rise to allegations of malpractice include the general areas of treatment, communication, medication, and the broad category of monitoring/observing/supervising/surveillance. Examples of common negligence allegations in nursing malpractice suits include patient falls, use of restraints, medication errors, burns, equipment injuries, retained foreign objects, failure to monitor, failure to ensure safety, failure to take appropriate nursing action, failure to confirm accuracy of physicians’ orders, improper technique or performance of treatments, failure to respond to a patient, failure to follow hospital procedure, and failure to supervise treatment (Aiken, 2004; Weld & Bibb, 2009). • Consider their skills, competencies, and knowledge when delegating tasks and supervising their actions. • Ensure that they are made aware of facility policies and procedures, resource materials, and documentation procedures. • Assign a resource person to each temporary staff member to serve in the role of mentor and help prevent potential problems from occurring because of a lack of familiarity with institution routine or where to turn for assistance. Under the doctrine of corporate liability, health care organizations themselves are held legally responsible for “ensuring that competent and qualified practitioners deliver quality health care to consumers” (Guido, 2010, p. 307). Under this doctrine, facilities can be held liable for a variety of activities that are beyond the control of any single employee, including the following (Aiken, 2004): • Failure to check references, educational credentials, license status, disciplinary actions, and criminal record for applicants • Failure to protect the clients from health care providers who can cause harm • Failure to monitor the quality of care provided by all medical and nursing personnel within the facility • Failure to periodically review staff competency • Failure to terminate an employee who has harmed a client and then injures another client Management policies and procedures must be in compliance in the areas of hiring, performance appraisal, management of employees with problems, and termination (Aiken, 2004). Lawsuits also have formed the basis for the standards to be met for the termination of employees. Discharges may occur for lack of adherence to employer-established policies or standards, “good cause” per institutional policy, illegal activity, assault, insubordination, or excessive absenteeism. Written notice and the reasons for termination avoid misunderstandings and show justice through due-process procedures. Careful documentation is important. If the employee is a member of a protected group, the employer may be required to submit formal justification for the termination (Aiken, 2004). Clearly, nurses, nurse managers, and the facilities that employ them face legal liability from a wide array of sources. Although it is not possible to avoid legal liability in all cases, nurse managers can take a number of steps to protect themselves, staff nurses reporting to them, and their facilities where possible. The first step is summed up in a statement often attributed to football coach Vince Lombardi: The best defense is a good offense. Nurse managers can do a number of things in applying this strategy of using a good offense to defend against problems leading to legal liability. First, because problems generally can be dealt with more effectively if anticipated, nurse managers should see that both they and the staff nurses who report to them are knowledgeable concerning the most common problem areas related to malpractice and the other sources of legal liability, especially new ones that have not yet been experienced within the unit. Likewise, nurse managers should ensure that both they and their staff nurses are aware of the many prevention activities that can aid them in avoiding these legal liability problems. Providing this information to staff nurses and using examples will probably improve both recognition and retention. In addition to the previous brief discussion of the sources of legal liability faced by nurses and nurse managers and the activities for preventing them, extensive information, including examples, is available from numerous sources. These include books (e.g., Aiken, 2004; Brothers, 2005; Guido, 2010), articles in nursing journals (e.g., Austin, 2011; Frank-Stromborg & Christensen, 2001a, b; Miller & Glusko, 2003), and a variety of websites that present articles and continuing education materials about recommendations for avoiding malpractice (e.g., Croke, 2003; Nurses Service Organization [NSO], 2012; Wetter, 2007). • Any client can sue a staff nurse, nurse manager, and/or health care facility for a tort, and if no response is filed within the legal time frame, the court will enter a default judgment against the defendant. Thus, at a minimum, regardless of the apparent validity of the grounds for the lawsuit, the defendant must incur defense costs or lose. • Given the typical lengthy period between the defendant’s act or omission and the introduction of evidence into the trial, many things can happen that will alter the perception of the facts. Witnesses, for example, may be questioned repeatedly, coached, or simply forget exactly what they witnessed. • Conditions in the courtroom can also influence the jury. Some jury members may be influenced by the dress or behavior of the defendant’s attorney and form subsequent opinions despite the facts (e.g., a high-priced lawyer with an arrogant attitude may elicit feelings such as “We’ll show him”). Or the appearance of the plaintiff may influence jurors (e.g., “How could a little old man like that be partly responsible for his own injuries, and besides, who cares anyway since the defendant has liability insurance?”). • Often more than one principle of law applies to a case, and the outcome may be influenced by which one the judge uses in giving his or her instructions to the jury. • In suits such as those alleging malpractice in providing or failing to provide proper end-of-life care, juries and even judges can be sufficiently influenced by their emotions so as to rationalize a finding of legal liability against the defendant, especially when, as is generally the case, liability insurance is available to pay the judgment. In fact, in some cases, a jury can actually change the law of a jurisdiction in making its decision. (See Case Study.)
Legal and Ethical Issues
evolve.elsevier.com/Huber/leadership/
LEGAL ASPECTS
LAW AND THE NURSE MANAGER
Personal Negligence in Clinical Practice
Liability of Health Care Organizations
LEADERSHIP AND MANAGEMENT IMPLICATIONS
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