Risk Management
Risk management is what one does to avoid problems later. Compare risk management to preventive medicine; risk management is preventive law.
Nurse practitioners (NPs) are at risk for two categories of professional mishap: clinical mishap and business mishap. There can be great overlap between clinical and business problems; that is, a clinical problem can turn into a business problem and then into a legal problem. For example, when an NP makes a clinical error and a patient discovers the error, the patient is quite likely to tell friends, relatives, and coworkers. Then the problem has evolved into a business problem for the NP. The friends, relatives, and coworkers of that patient are unlikely to visit the NP. If the patient is harmed by the NP’s error and files a lawsuit based on malpractice, the NP also has a legal problem.
Any NP faces certain risks associated with practice:
Risk of making a clinical error
Risk of being sued for malpractice when there was no clinical error
Risk of public perception that the NP is a poor-quality provider
Risk of breaching patient confidentiality and/or privacy
Risk of failing to inform patients fully about treatment and to get informed consent to treatment
Risk of failing to disclose information that patients need to get follow up
Risk of poor quality ratings
Risk of disciplinary action
Risk of Medicare fraud for upcoding a patient visit
Risk of business failure for downcoding patient visits
Whether any of these risks becomes an actual problem is largely up to the NP.
▪ Risk of Making a Clinical Error
Medical professionals who have been sued report that the experience soured their attitudes toward their professions. NPs are rarely sued. Nevertheless, a lawsuit, even a lawsuit where the NP is found to be not liable, is a devastating personal experience. Therefore, every nurse practitioner should incorporate into his or her practice an a wareness of how to avoid malpractice.
NPs will maintain their positive attitudes toward their profession by practicing litigation avoidance techniques just as they would advocate preventive medicine and healthcare maintenance to their patients. Avoidance measures include exercising caution about establishing patient-provider relationships and, when a patient-provider relationship has been established, practicing consistently in conjunction with the accepted standard of care for NPs.
What Is Malpractice?
Malpractice is a failure of professional skill that results in injury, loss, or damage. To prove malpractice, a patient/plaintiff must prove:
The existence of a client/professional relationship.
Behavior below the appropriate standard of care for professionals dealing in like circumstances.
A causal link between the practitioner’s failure to conform to treatment standards and harm to the patient.
Actual injury to the patient.
For more information on medical malpractice, see Chapter 7.
Existence of a Professional Relationship
A patient-provider relationship is established when a patient arrives at an NP’s office for a visit, when an NP undertakes the care of a hospitalized patient, or when an NP makes a home visit to a patient. However, patient-provider relationships also can arise in other, not-so-obvious ways, including:
Over the telephone
At a social gathering
By supervising another’s treatment
By providing sample medication
By giving advice or opinions to family or friends
When Is a Person a “Patient”?
Consider the following example: NP Jones receives a message to call Nurse Smith at home. Nurse Smith is a former colleague of NP Jones, and Jones remembers Smith as a very talented and competent nurse. Smith is calling about a personal health matter.
Smith’s son, James, age 6, has an earache. James has had several earaches in the past, all caused by infections, all cleared by amoxicillin. James is otherwise completely healthy, reports Smith.
Smith’s son, James, age 6, has an earache. James has had several earaches in the past, all caused by infections, all cleared by amoxicillin. James is otherwise completely healthy, reports Smith.
Smith is working the evening shift, and James is in first grade all day. Smith does not have time to see James’ pediatrician until the end of the month, 2 weeks away. Nor does Smith want to pay the $20 copay to see the pediatrician. NP Jones remembers that he met James once at a picnic but has never seen James in the office. Smith recalls that she has always respected NP Jones’s judgment. Smith asks NP Jones, a family NP, to prescribe amoxicillin for James. Smith is asking a favor, as she and NP Jones both know that Smith’s insurance with an HMO will not reimburse NP Jones for an office visit.
Is 6-year-old James NP Jones’s patient? Yes, if NP Jones calls in a prescription for James.
Risk Management by Limiting Patient Relationships
If NP Jones gives any advice to Smith or prescribes any medication, NP Jones has taken on a professional relationship with James, and James is NP Jones’s patient. NP Jones will then be liable for any breach in the standard of care that leads to an injury to James. It does not matter that James is the patient of another provider. It does not matter that NP Jones will receive no compensation for treating James. It does not matter that the interaction is solely telephone advice.
NP Jones, to protect himself (manage his risk), should either: (1) politely refuse to give advice, other than that Smith should call James’s pediatrician, or (2) require Smith to bring James to NP Jones’s office to go through the usual new-patient evaluation before Jones prescribes an antibiotic or otherwise treats James. NP Jones should then follow up with James as NP Jones would with any of his patients.
For 95 out of 100 times that NP Jones is presented with a situation like this, NP Jones could proceed to treat the child over the telephone with no ill effects to the child or to NP Jones’s malpractice history. However, NP Jones will be liable in court for the 5% of cases where: (1) the mother makes an erroneous diagnosis; (2) the mother does not know that the organism in the child’s ear is resistant to the antibiotic used in the past; or (3) there is some other problem that NP Jones would have elicited with a careful history and physical examination.
In short, NPs should say “no” to all requests they receive for care that skirts the normal, safe evaluation process. The lesson of this case may seem elementary to experienced NPs. However, it is included because the pressure is great to deliver care to people who “just want a little advice” but are not “patients.” It is easy for an NP to forget that the NP bears professional responsibility for any healthcare advice given to anyone.
What Is the Standard of Care for NPs?
The standard of care in any clinical situation is discovered by answering the question: What reasonable and ordinary care, skill, and diligence would be given by
practitioners in good standing, in the same geographic area, in the same general type of practice in similar cases?
practitioners in good standing, in the same geographic area, in the same general type of practice in similar cases?
NPs are held to the standard of care of the reasonable and diligent NP. Is this the same standard that pertains to physicians? It may be. If the NP is performing primary care services, for example, the standard of care for an NP and for a physician performing those services will be the same standard.
Consider the example of Fein v. Kaiser Permanente given in Chapter 7. The Fein case is a good illustration of a missed diagnosis. In that case, Mr. Fein, a middle-aged attorney, called a Kaiser clinic at midday complaining of chest pains. He got a 4 pm appointment, at which time he was evaluated by an NP, who incorrectly diagnosed musculoskeletal pain. Mr. Fein was having a myocardial infarction. Later in the evening, Mr. Fein was evaluated by a physician, who also incorrectly diagnosed Mr. Fein’s chest pain. It was not until Mr. Fein’s third visit that an electrocardiogram was done.
The NP easily could have ruled out myocardial infarction through an electrocardiogram at the first visit. That would be risk management. A prudent NP faced with a middle-aged male patient with chest pain would rule out myocardial infarction before diagnosing musculoskeletal pain. In this case, the NP and physician shared the same standard of care.
How Does an NP Keep Up with the Standard of Care?
Sources of information about standards of care for any specific disease or healthcare maintenance effort include:
Internet articles
Textbooks and reference books
Professional journals
Respected colleagues
Continuing-education presentations
Government agency-generated guidelines, such as Agency for Healthcare Research and Quality (AHRQ) guidelines
An NP who wishes to avoid breaching the standard of care will consult current books and journals on a day-to-day basis, will attend continuing education presentations regularly, will refer patients to specialists when necessary, and will seek consultation from attending or consulting physicians or from other NPs when necessary.
▪ Risk of Being Sued for Malpractice When There Was No Clinical Error
Some patients sue healthcare providers when there was a poor outcome but no actual malpractice on the part of the provider. Whether a provider has, in fact, fulfilled the elements of malpractice is not determined until there is a trial on the matter or the matter is settled out of court.
NPs who have the opportunity to defuse a potential lawsuit through extra time spent with a dissatisfied patient should do so, even if they know that any threatened lawsuit is ultimately without merit. Therefore, risk management efforts aimed at avoiding lawsuits include keeping patients satisfied and appeasing dissatisfied patients. Patients are annoyed by long waits for appointments, long waits in the office waiting room, impersonal treatment, and constant busy signals when trying to call the office. Keeping in mind the estimate that 90% of dissatisfied patients will not complain, it is wise to pay attention to patient complaints and to attempt to resolve problems with patients.
▪ Risk of Public Perception That the Individual NP Is a Poor-Quality Provider
The risk of being perceived as a poor-quality provider is perhaps more of a business than a legal risk. How could a nurse practitioner get a reputation as a poor provider? Like any other professional, an NP can get a poor reputation by failing to follow up with clients; by being inattentive, late, forgetful, or sloppy in appearance, demeanor, or intellect; by being unreliable; or by being unable to make a decision.
▪ Risk of Breaching Patient Confidentiality
Patients have a right to confidentiality. Breach of privacy is an intentional tort and can be the basis for a lawsuit by a patient. Breach of privacy also can be malpractice, the basis for a disciplinary action by a state’s board of nursing, and a violation of state and federal law. And, under federal regulations, a patient who feels that his or her NP has violated his or her privacy rights can complain to the US Office of Civil Rights. The Office may investigate, and, if an NP has not complied with the government’s recommendations aimed at protecting patient privacy, the government may fine the NP.
NPs can breach a patient’s confidentiality in the following ways:
Talking about a patient within earshot of others
Releasing medical information about a patient without prior written permission
Leaving a telephone message on a patient’s answering machine
Discussing a patient’s condition with family members
Leaving patient records within view
Discarding unshredded duplicate records
Giving a patient’s name and address to a vendor
It is unusual for patients to sue for breach of confidentiality and it may be difficult for patients to prove. However, patient word of mouth about perceived breaches of confidentiality can harm community perception of a medical practice or provider. Therefore, NPs should seek private places to discuss patients, arrange for discarded records to be shredded, keep records out of view of others, and decline to discuss
patient conditions or send written documents on a patient unless the NP has the patient’s written permission. An example of an authorization form to use when it is necessary to disclose information about patients to third parties for reasons other than patient treatment, payment, or healthcare operations is found in Exhibit 8-1.
patient conditions or send written documents on a patient unless the NP has the patient’s written permission. An example of an authorization form to use when it is necessary to disclose information about patients to third parties for reasons other than patient treatment, payment, or healthcare operations is found in Exhibit 8-1.
EXHIBIT 8-1 Sample Authorization Form
This form allows a patient to authorize release of protected healthcare information for specified purposes other than treatment, payment, and operations, or to disclose protected healthcare information to a specified third party.
I authorize [Name of provider and/or class of person authorized to make the use or disclosure] to release my:
□ Name
□ Address
□ Telephone number
□ E-mail address
□ Social security number
□ Insurance policy information
□ Diagnosis or health status
□ Laboratory tests or results
□ X-rays
□ Immunization record
□ Physical exam results
or
□ Other information about my health status, described as follows:
_______________________________________________________________ _______________________________________________________________
To: [Name of authorized recipients or class of recipients to which information may be released]
via:
□ Fax to [Name and number]
□ Mail to [Name and address]
□ Telephone to [Name and telephone number]
□ Pick up in person
For the purposes of:
________________________________ ________________________________
This authorization is effective on the date signed and continues until:
□ Provide date
I understand the following:
If I refuse to authorize release of my health information, [Name of practice and provider] may not refuse to treat me.
I may revoke this authorization at any time by notifying [Name and contact information of privacy officer].
The information disclosed pursuant to this authorization may be redisclosed by the recipient and therefore may be outside the protection of federal rules on privacy.
The healthcare provider named above:
□ will
□ will not
receive remuneration for disclosing information about me.
__________
Signature
__________
Printed name
__________
Date
▪ Risk of Violating a Patient’s Right to Informed Consent
A patient has a right to consent to the care being given and a right to refuse care that is offered. An NP has a legal responsibility to give a patient enough information about risks and benefits of care being offered so that the patient can make an informed decision to accept the care.
Informed consent involves disclosure of material risks of care and requires that a patient be competent to understand the risks and make a judgment about accepting care. The doctrine of informed consent requires that there be no coercion in getting a patient to consent to care. The law of informed consent is physician oriented, but the doctrine can be expected to be upheld when an NP is the care giver.
The doctrine of informed consent arose from a societal desire to discourage persons from unauthorized touching of others. The predisposition against nonconsensual touching expanded when applied to the practice of medicine. In medicine, the requirement is that a physician must both inform a patient about what is to be done and obtain the patient’s consent before treating. Even though the doctrine of informed consent is
grounded in the law of battery, the objective of the courts in applying the doctrine of informed consent has been more involved than the simple avoidance of one person’s unauthorized touching of another. The majority of courts have adopted a self-determination rationale for informed consent. That is, a person has a right to determine what shall be done with his or her body.1
grounded in the law of battery, the objective of the courts in applying the doctrine of informed consent has been more involved than the simple avoidance of one person’s unauthorized touching of another. The majority of courts have adopted a self-determination rationale for informed consent. That is, a person has a right to determine what shall be done with his or her body.1
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