Legal Issues and Documentation

1. Legal Issues and Documentation Author: Evelyn M. Hickson, RN, MSN, CNS, WCC

2. Objectives By the end of the presentation the participant will be able to: • Discuss the legal implications associated with working in the Perinatal area • Define the following terms: standard of care, accountability, negligence, malpractice and failure to act • Discuss the importance of clear, concise documentation • State the component parts to and charting

3. Perinatal Issues • More than one patient at a time – mother and baby / babies • Multiple areas of care – triage, antepartum, intrapartum, postpartum, OR, recovery room • Public expectations of the “perfect birth and baby”

4. Trends in Malpractice • Obstetrics one of the areas with the highest medical malpractice risk • Statute of limitations for the child in OB is 18 – 21 years in most states of the U.S. • Damaged infants are eligible for a malpractice settlement that will assist with caring for them for the rest of their lives

5. Trends in Malpractice • Increase in the number of malpractice suits where more non-physicians are sole defendants in lawsuits • Erosion of the MD as the “Captain of the Ship” • Lawyers are actually taught how to sue medical professionals

6. Direct Nurse Liability • Nurses (LPNs and RNs) are considered licensed personnel that are trained and deemed competent – thereby are accountable for their actions

7. Direct Manager Liability • Increased numbers of charge nurses and nurse managers involved in litigations as witnesses and co-defendants • Each manager is accountable for the outcomes of care at his or her level of authority in the institution

8. Vicarious Liability • Hospital or employer is accountable for acts of the employee within the context of their job description

9. Nursing Competency • Based on: • Performance • Training • Experience • Standards of Care

10. Standard of Care • What a reasonable and prudent nurse given similar experience and training would do under the same circumstance

11. Standards of Care • More than 20,000 published standards • National Practice Standards (COBRA/EMTALA) • National Practice Guidelines (ACOG, AAP, CDC, NIH, AHA, etc.) • Institutional Policies, Procedures, Practice Standards and Guidelines • Community Standards • JCAHO • International Practice Standards • Board of Registered Nursing / Department of Health • Professional Organizations (AWHONN, ACOG)

12. Affirmative Duty • Nurse responsibility to: • Do No Harm • PREVENT HARM • Requires that we independently evaluate MD/provider orders, plan of care, treatments and procedures for appropriateness • Nurse responsibility to determine if the orders are NOT in the best interest of the patient then required to : • Question • Clarify • Challenge • Change • Implement the chain of command to facilitate process

13. Physician Code of Ethics • American Medical Association Code of Ethics “Where orders appear to the nurse to be in error or contrary to customary medical and nursing practice, the physician has an ethical obligation to hear the nurse’s concerns and explain those orders to the nurses involved. In emergencies, when prompt action is necessary and the physician is not immediately available, a nurse may be justified in acting contrary to the physician’s standing orders for the safety of the patient.”

14. Affirmative Duty Documentation • WHO you have notified by name and title • WHAT you have told them – specific, factual and true • WHAT you are asking for – specific, clear • WHAT was the response to your request

15. Charting Example • “Drop in FHR to 90s. Pt complains of increased abdominal pain, MD notified” • “Repetitive variable decelerations to 90 bpm for 1-2 minutes with slow return to baseline. Pt turned to right lateral, pitocin turned off, IV fluid bolus, 02 on at 10 L per non-rebreathing mask. Cervical exam 4 cm/ 75%/-1 Dr. Smith notified and requested to come to unit to review strip and assess patient, states he is on his way and will be on the unit within 20 minutes.”

16. Chain of Command • Nurses are responsible for knowing the chain of command at their place of employment and • When to implement • How to access all levels • How long to wait before going up to next level • Identify what is the line of authority for: • Nursing • Medical • Administrative

17. Liability • “ The provision of substandard care that results in patient injury” May & Mahlmeister, 1994

18. Professional Liability • “Responsibility for acts of negligence” May & Mahlmeister, 1994

19. Act of Commission • “Doing something incorrectly or outside the accepted standards of care.” May & Mahlmeister, 1994

20. Act of Omission • “Failure to do something that should have been done” May & Mahlmeister, 1994

21. Routes of Reporting • Quality Assurance / Unusual Occurrence forms / Incident Reports • Internal Continuous Quality Improvement Process • Protected • Formal memos • Written or phone memos to state agencies (Whistle Blowing)

22. Reporting • Mandates – abuse, criminal acts • Negligence • Malpractice • Diversion of narcotics • Do not refer to QA or Unusual Occurrence, memos in the chart • Do not refer to any protected QA review process in the chart • The only information that should appear in the chart are the facts of the situation

23. Professional Accountability • Definition: Responsibility for outcomes of care

24. Professional Accountability • Nurse must be able to: • Identify areas of limitations, skills and expertise • Request appropriate training and orientation to new skills, tasks, equipment, and roles • Performs nursing functions that she / he is deemed competent and safe to perform by education, experience, training and current expertise • Have knowledge of the law and standards of care

25. How to Maintain Professional Accountability • Stay current in practice • Join professional organizations • Attend conferences • Participate as leader within unit

26. Scope of Practice • Set by State(s) practiced in, national and institution standards (practice grid) • Orientation • Competency tools • Performance Appraisals • Nurse Practice Act – set by state: nurses “help people cope with difficulties in daily living which are associated with actual or potential health or illness problems or treatment thereof which requires a substantial amount of scientific knowledge or technical skill”

27. Negligence • Failure to have the knowledge and the skill to perform a duty that any other prudent nurse would given the same or similar circumstances. • The Commission of an act • The Omission of a duty

28. Negligent Supervision • Negligence on the part of any nurse who has supervisory responsibility for new staff, staff who are floating, LPNs, Aides, etc… • Also is applied to any nurse who continues to delegate or assign duties to another nurse, aide, etc… that have known deficits or who lack competency for that task.

29. Gross Negligence • “An extreme departure from the standard of care that would have been practiced by a competent registered nurse in similar circumstances.” Barter & Furmidge, 1994 *Applies to any licensed professional

30. Most Common Allegations of Negligence • Failure to assess and monitor the patient: • As frequently as required by the patient’s condition or policy or guidelines • In accordance with provider order • In compliance with the standard of care

31. Most Common Allegations of Negligence • Failure to communicate and report • In a timely manner • Persistently if patient condition warrants • Implementing the chain of command • Documenting critical data and reports

32. Most Common Allegations of Negligence • Failure to ensure patient safety • Failure to evaluate for risk for falls – physiologic, neurological, psychological, etc… • Failure to provide safety devices for patient (for example: side rails, call light)

33. Most Common Allegations of Negligence • Medication Errors • Failure to follow 5 rights • Failure to check the labels

34. Most Common Allegations of Negligence • Failure to follow institutional policy, procedures and guidelines • Negligent telephone triage and advice • Violation of HIPAA – patient confidentiality • Inappropriate delegation and/or supervision

35. Malpractice • “…refers to the negligent acts committed by a person in his or her professional capacity. It is professional misconduct, unreasonable lack of skill in professional duties, evil practice or illegal or immoral conduct.” Roland & Roland, 1989

36. Most Common Allegations of Malpractice • Patient falls – with or without the side rails up • Failure to monitor the patient – undetected changes / deterioration in condition • Failure to communicate and report changes in a patient’s condition in a timely manner and to not be persistent in requesting medical intervention • Failure to clarify questionable orders or treatments • Medication errors

37. Most Common Allegations of Malpractice • Inadequate discharge planning and inappropriate or premature discharge of a patient • Not identifying patient safety risks • Injury due to improper use of equipment • Failure to perform treatment properly

38. Duties Specific to the RN • Perform Complex Assessments on UNSTABLE patients • Comprehensive admission assessment • Reassessment after invasive procedures • Verification/validation of abnormal assessment data

39. Duties Specific to the RN • Uses nursing judgment to interpret patient data • Forms opinions and reaches conclusions by analyzing data • Determines the meaning and significance of assessment data and observations made by LPNs • Develops or alters the individualized plan of care as appropriate to the patient condition

40. Duties of the LPN • Make observations • Collect data • Perform simple assessments • Reports abnormal findings • Completes tasks delegated by RN • Documents observations made, data collected, nursing care given and patient responses to care • Documents reports of any problems, issues and abnormal findings to the RN

41. Nursing Process • Assessment of the patient • Develop a plan of care • Implement the plan of care including interventions that are appropriate for the results of the nursing assessment • Evaluation of the plan or the interventions implemented • Communication and documentation with the rest of the health care team

42. What do patients want? • 90% of time patients do not tell you that they are unhappy

43. Action to Take - LEARN • Listen to the patient and customer with sincerity • Empathize with their situation • Apologize for their experience or the mistake if one has been made • Respond with an appropriate action • Nurture the relationship and follow up

44. Documentation • Reflects the care given to the patient • Demonstrates results (outcomes) from interventions • Identifies changes in the patient condition • Reflects changes in the level of care • Facilitates planning and implementation of quality and safe patient care

45. Documentation • Coordinates care given by each member of the health care team • Provides a place for an exchange in the information regarding the patient’s condition and treatments • Provides data for risk management, utilization review, case management, quality improvement, reimbursement and research

46. What to Document • Any intervention or action done in response to a problem • Procedures, treatments and medications including when they were done • Patient’s response to interventions and medications • Anything that you use to protect the patient • Any observation or assessment made • The care you have given

47. What to Document • Variations from assessments and changes to the plan of care • Communication with other members of the health care team including providers and attempts to reach care providers • Content and patient response to patient education • Statements made by the patient

48. What to Document • Interventions done to make the patient more comfortable • Acceptance and transfer of care (report) • Each entry to have date and time • Signature in document that reflects professional standing • Steps taken to solve a problem • Use correct spelling and grammar

49. Late Entries • Legal and permissible • Usually considered late entry within the shift or one shift later • Days after = Addendum • Must be dated and timed at the time the note is actually written • Become less credible the LONGER you wait to write them

50. Recreation of Events • Legal and allowable • Should be written prior to leaving the institution after event/crisis occurred • Be as detailed as possible • Factual