Liability Issues in Intrapartum Nursing

Liability Issues in Intrapartum Nursing

Suzanne McMurtry Baird

Betsy Babb Kennedy

Susan L. Baudhuin, Esq


The intrapartum nurse faces high risk for involvement in a malpractice suit. The alarming number of cases alleging malpractice in obstetrics as a whole may be the result of a number of factors.

  • Childbirth is an intense, emotional experience and parents have high expectations for a “perfect” birth and newborn. Poor outcomes are not usually anticipated.

  • Parents may be well-informed consumers of health care.

  • Obstetrics is a high-pressure, rapidly changing specialty. Accidents, errors in judgment, and negligence do occur.

  • There is increasing accountability and autonomy in nursing practice.

This module is divided into four parts, reviewing the components of malpractice, general areas of nursing liability, issues unique to intrapartum nurses, and strategies to avoid malpractice claims. Display 20.1 describes the legal process of a malpractice claim. Note: this process may vary slightly for each state.

Components of Malpractice

Medical malpractice is any act or omission by a healthcare professional during treatment of a patient that (1) deviates from accepted norms of practice (or standards of care) in the medical community, and (2) causes an injury to the patient. Such deviations are known in the legal realm as “negligence.” Negligence in the nursing realm would be the failure to act as a reasonably prudent nurse would act under the same or similar circumstances. In simple terms, as a nurse you are held to certain professional standards that impose a legal duty to act or refrain from acting in any way that endangers the patients for whom you are providing care.

Nursing standards of care are qualitative guidelines for providing safe care and should reflect a desired and achievable level of performance against which actual performance can be compared. The purpose of a standard of care is to guide professional nursing practice. Nursing standards do not require outstanding or above average care—they are used to determine what is “reasonable” under the circumstances. Standard of care for nurses in the legal context is defined as the degree of skill, care, and judgment used by an “ordinary, prudent” nurse under same or similar circumstances. In every nursing malpractice lawsuit, there will be an allegation that the nurse
breached a duty owed to the patient by failing to meet the applicable standard of care. Thus, these standards of care become the criteria used in medical negligence lawsuits to describe in what way(s) the nurse failed in his or her duty.

NOTE: Know and follow your state’s nurse practice act and your facility’s policies and procedures.

Nursing standards are found within state statutes (nurse practice acts), hospital policy, procedures, and protocols, national professional organizations (e.g., American Nurses Association), and specialty nursing organizations (e.g., Association of Women’s Health, Obstetrics and Neonatal Nursing, Association of Critical Care Nurses). When no written policy addressing a particular situation exists, the standard of care is what a reasonably prudent nurse would do under the same or similar circumstances, and is established in court through the testimony of nursing experts.

In a malpractice lawsuit, the plaintiff (person filing the lawsuit) must establish all of the following elements:

  • duty to the patient

  • breach of that duty

  • injury to the patient

  • causal link between the breach and the patient’s injury

General Areas of Nursing Management Cited in Legal Cases

Improper Medication Administration

Errors in medication administration are commonly occurring adverse events that result in patient harm. Many initiatives have been implemented in healthcare organizations to attempt to decrease the occurrence. However, errors in practice still exist at an alarming rate due to the complex and unpredictable environment in which nurses are working.2,3

In addition, intrapartum nurses administer several high-alert medications routinely in practice. Often, these medications are at the center of allegations in a medical malpractice case. These include:

  • Magnesium sulfate

  • Oxytocin

  • Insulin

  • Heparin

Registered nurses (RNs) are expected to adhere to professional standards and to advocate for and participate in activities to create safe medication systems within their practice setting. To safeguard against medication errors, here are some helpful tips:

  • Always practice the seven rights of medication administration and defined protocols, even when you are busy or fatigued.

    • Right medication

    • Right dose

    • Right route

    • Right time

    • Right patient

    • Right reason

    • Right documentation

  • Have policies and protocols and standardized administration in place for high-alert medications.

  • Check the order and clarify with the provider if you have any questions.

  • Check the label before administration.

  • Look up the medication if not familiar with all seven rights. Know WHY you are administering a medication.

  • If it seems wrong, double check with another nurse, provider, or the pharmacist.

  • Complete double checks as indicated for high-alert medications and document.

  • Omit or delay the medication administration as warranted by patient assessment and notify the provider.

    • Example: hold brethine if maternal heart rate greater than 120 beats per minute.

  • Know the woman’s allergy profile.

  • Use checklists as indicated.

    • Example: Oxytocin Pre-Use and In-Use Checklists

Failure to Assess and Monitor for Side Effects of Medication or Interventions

Medication practice is much more than just the technical task of giving a pill or giving an injection. Assessment following medication administration or titration of a medication based on the woman’s assessment is an important aspect of nursing care. Reassessment following administration of a medication allows for the continued formation of the plan of care and other needed communication or intervention. The titration of oxytocin based on maternal and fetal assessments is a high liability area for obstetric nurses.

NOTE: Nurses have the educational preparation to make patient-specific range-related medication decisions.

Improper Use of Equipment or Availability of Equipment

The use of any piece of equipment with patient care requires the following:

  • Knowledge of the manufacturers’ recommendations and facility policy for use

  • Routine monitoring for proper working function (as indicated and outlined by the facility’s policy)

  • Recognition of equipment malfunction

  • Training and competency of proper use

  • Knowledge and competency of how to interpret data obtained from the equipment

NOTE: Be specific about your request and the time frame for response! Always clarify, confirm, and restate any orders given.

Poor or Inadequate Communication and/or Collaboration

There is a legal duty to notify the appropriate physician and/or midwife in a timely manner of any significant, abnormal assessment data that does not respond to routine nursing intervention. Failure to notify of abnormal assessment findings may lead to poor outcomes and increase the chances for malpractice litigation. The Joint Commission has identified miscommunication among caregivers as a primary cause of perinatal events, including infant death and injury.4,5 In the intrapartum setting, communication among all caregivers is essential to optimize outcomes. Communication occurs in the medical record and verbally. Common breakdowns in RN to physician/midwife communication may involve the following situations:

  • Nurse is busy providing urgent care to patient

  • Nurse is convinced that physician/midwife will not act on assessment data

  • Nurse fears that the physician/midwife will become angry regarding communication

  • Nurse does not want to interrupt physician/midwife

  • Nurse fails to see the relevance of assessment data

  • Nurse fails to persist in communication

  • Nurse fails to request the physician or midwife to come to the bedside for patient assessment

Effective communication techniques that nurses, nurse midwives, and physicians can use include the following5,6,7,8:

  • In all communication, focus on the woman

  • Speak clearly using a congenial tone

  • Use professional behaviors

  • Be aware of negative body language

  • Present facts in an organized manner presenting all relevant facts, abnormal assessment findings, and specific concerns

  • Agree upon the plan of care. If you disagree with the plan, state your rationale(s)

  • Be an active listener

  • Keep an open mind and consider alternatives

  • Ask for clarification if communication is unclear

  • If the woman, fetus, or both are at risk, tell the provider to report to the hospital to assess the patient immediately, and document the conversation

  • Inform the provider if you plan to communicate up the chain of command

NOTE: Be specific about your request and the time frame for response! Always clarify, confirm, and restate any orders given.

Ultimately, all care providers have the same goal: a healthy woman and baby. It is important to remember this goal in communicating and collaborating with members of the health care team. Using effective, standardized methods of communication such as SBAR (Situation, Background, Assessment, Recommendation) can enhance patient safety, improve outcomes, and reduce liability.9

The most common communication between nurses is report, hand-off, or hand-over, when care of the woman is transferred between providers, shifts, or units. The purpose of the hand-off is to pass along woman-specific information to ensure continuity of care and safety. Hand-off reports should be standardized to minimize gaps in information that could contribute to inappropriate care of the patient. The SBAR technique is one format that has been utilized for effective communication between nurses and between nurses and physicians or midwives. As an adjunct to the SBAR technique is bedside report. Participating in the hand-off at the woman’s bedside allows her and/or her family members to ask questions, clarify assessment parameters, and understand the plan of care. Display 20.2 is an example of SBAR.

NOTE: Being well prepared and organized to give a report during a hand-over or before making a call to the provider is important. If you are unsure of your assessment, discuss the situation with your charge nurse or preceptor. Avoid giving report on a woman for another nurse unless it is an emergent situation.

Failure to Act as a Patient Advocate and Initiate the Chain of Command

Every hospital should have a written chain of command policy/procedure for nurses to follow in order to properly escalate concerns. Nurses may become liable when a disagreement regarding clinical management occurs and they fail to initiate the defined chain of command. Chain of command activation is indicated when there is potential for the maternal and/or fetal condition to rapidly deteriorate causing harm, and discussions with the appropriate provider have failed to provoke a proper plan of care. Display 20.3 is an example chain of command.

NOTE: Prior to activating the chain of command, the nurse should discuss care concerns with the provider. If the concern is not addressed, then the nurse should inform the provider that she is activating the chain of command.

Failure to Follow Provider Orders

Provider orders should comply with hospital policy and be based on evidence or best practice recommendations. The nurse may be held liable if provider orders are not followed and injury occurs as a result of not following the orders. If there is concern regarding a specific provider order, the nurse should notify the provider and discuss the rationale for the order. Liability may also occur if the provider order is clearly contraindicated by normal practice and the nurse follows the order. Communication regarding the plan of care includes a clear understanding of provider orders.

Failure to Verify Informed Consent

Obtaining informed consent is required by law.1,10 Providers are obligated, prior to delivering certain types of treatment, to inform the woman about the risks and benefits of the proposed treatment, along with the risks and benefits of forgoing treatment, and any alternatives. Only after the woman has voluntarily consented may the provider proceed. All states provide exceptions in the case of emergencies, or when the woman has been declared mentally incompetent by a court of law, or if the woman lacks physical capacity. Providers who fail to properly obtain informed consent are subject to legal actions for malpractice and/or criminal battery (unlawful contact). It is crucial to understand the necessary content, applicability, and the nurse’s role and responsibility in this area.

For valid informed consent, the woman must be legally and physically capable of making the decision, the proper information must be conveyed, and the consent must be given voluntarily. The question of whether a woman is legally able to make a treatment decision involves a number of factors. First, the woman must be of legal age. Eighteen is recognized as the legal age for decision making in most states, but a woman under 18 may be considered “emancipated” and thus legally able to make her own treatment decisions if she meets certain criteria set by state law. In many cases, emancipation requires a court order. Do not ever assume a woman under 18 years is emancipated based on your assessment of her situation without knowing the laws regarding emancipated minors in your state.

The next part of the assessment involves whether the woman is capable of comprehending the information presented such that she can meaningfully consent. You will hear this referred to
as “capacity” or “competence.” While the terms are used interchangeably, they are different. To distinguish, “capacity” is a medical term referring to the determination made by providers as to whether an individual is capable of making medical decisions. “Competence” is a legal term referring to judicial determination. Even though questions of competency are legal in nature, usually a provider makes the assessment in the process of deciding whether the woman is mentally able to assess and make choices about her own care. The inquiry is whether the individual understands the treatment choices, risks, and alternatives; and whether she understands the significance and consequences of her decision. If you have concerns about the woman’s ability to process information and make decisions, you should notify the treating provider.

The issue of meaningful consent does not present only with women who are underage, mentally ill, or mentally or physically challenged. Courts have invalidated a woman’s consent where certain conditions rendered the patient unable to meaningfully process the information; thus, the consent given was not legally binding. Some examples of situations where courts invalidated a patient’s informed consent are: being under great amounts of stress or in extreme pain (e.g., labor); being medicated/sedated; being intoxicated or under the influence of drugs; or being in a semiconscious state.

NOTE: States vary in the requirements for informed consent. It is the responsibility of the physician and nurse to know the laws regarding informed consent in their own state of practice.

Information refers to the content of the explanation given to the woman. Failure to provide reasonable and relevant information in language the woman can understand exposes providers to possible legal action. While states vary in their approaches to informed consent, the information given during an informed consent discussion should include the following:

  • The nature of the individual’s condition, the diagnosis, or suspected diagnosis

  • The nature and purpose of the proposed treatment, including who will perform the treatment

  • Expected outcomes and benefits

  • Major risks, complications, and side effects of the proposed treatment

  • Reasonable alternatives

  • The right to refuse treatment

  • Possible consequences of refusing treatment

Voluntariness refers to the circumstances under which the woman gives consent. All patients have the right to weigh decisions about their medical care after full disclosure of all relevant information, freely, and without being pressured or deceived. If fraud (deception), duress (forcing the woman to agree through the use of pressure, threats, coercion, violence, and restraints), or collusion (usually arises when family members work with providers in secret to direct treatment) is present, the consent is invalid. Remember that an individual can refuse further treatment or withdraw consent for a particular procedure at any time. Withdrawal can be given verbally, in writing, or by gesture (e.g., shaking head “no,” withdrawing arm from nurse’s hand). If the woman indicates a withdrawal of consent, the procedure should be discontinued as soon as safely possible. Extenuating circumstances in a life-threatening situation can negate the woman’s refusal of treatment.

NOTE: The patient may prevail in a malpractice lawsuit if the patient did not consent to a procedure or was poorly informed by the provider.

It is not absolutely necessary to obtain consent when delay will cause death or seriously jeopardize the patient’s health. Another exception of sorts is “therapeutic privilege,” which occurs
when a healthcare provider does not fully inform a patient about a treatment or procedure because the provider believes that complete disclosure would be harmful or extremely emotionally upsetting. Because in the United States all patients have the right to be informed about and make treatment decisions (including refusal of treatment), today’s courts almost never recognize this exception.

When an adult is mentally incompetent or physically unable to give consent (i.e., comatose), a legal guardian, conservator, a legally designated power of attorney for health care, or judge may provide consent. These are the only sources for such consent. Family members do not automatically have the right to give consent. The court can overrule a competent adult’s decision about a treatment, but such a judicial determination is made only when the state’s interest of preservation of life is counter to the woman’s wishes.

NOTE: The preservation of life concept is the basis for many court decisions involving the fetus and/or newborn after the age of viability has been achieved. EXAMPLE: A woman who refuses a cesarean birth when the fetus is at term and a placenta previa is evident.

Providers (physician, certified nurse midwife, or nurse practitioner) are responsible for obtaining informed consent for medical procedures or treatments because only a treating provider has the required training, expertise, and knowledge regarding the woman’s condition. In most instances, all treatment and care provided by a nurse is covered by a general consent to treatment. Nurses are often involved in the informed consent process, however.

Nurses are frequently requested to witness informed consent. In addition, in some settings, the provider might delegate the task of obtaining a woman’s signature on a consent form to nursing personnel. If this is the policy and procedure of the institution, prior informed consent must have been obtained by the provider during prenatal care. THE GUIDELINES FOR OBTAINING CONSENT IN THESE CASES MUST BE SPECIFICALLY WRITTEN FOR THE PROCEDURE, APPROVED, AND SIGNED BY MEDICAL AND NURSING ADMINISTRATION. If the woman questions the information provided, or she is unclear in her understanding, or refuses to sign the consent, you must not only refrain from trying to educate or persuade the woman, but are OBLIGATED, BOTH LEGALLY AND ETHICALLY, TO INFORM THE ATTENDING PROVIDER OF THE WOMAN’S INQUIRIES AND/OR REFUSAL TO SIGN. The provider is the only person legally responsible for giving additional information or answering the woman’s questions about treatment.

NOTE: Remember that a nurse simply obtaining a woman’s signature on a consent form does not transfer the legal liability for informed consent from the provider to the nurse.

Jul 10, 2020 | Posted by in NURSING | Comments Off on Liability Issues in Intrapartum Nursing

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