Medical Malpractice

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Medical Malpractice 1 Running head: MEDICAL MALPRACTICE ARE NOT RESERVE

Medical Malpractice Are Not Reserved for Only Doctors Anymore Jeanne Benfante San Diego City College School Of Nursing

Medical Malpractice 2

Medical Malpractice Are Not Reserved for Only Doctors Anymore Historically, when one thinks of medical malpractice lawsuits, one thinks of a physician. Not so anymore. As nurses’ roles has progress from a passive and subservient role to an assertive and independent role, according to Weld and Bibb (2009) “registered nurses have more professional accountability than at any other time in the history of nursing. As a result, nurses must confront the fact that they now owe a higher duty of care to their patient, and by extension, are more exposed to civil claims for negligence than ever before” (p.2). In other words, as “nurses responsibilities are continually expanding to include more risk and more patient contact without a physician present…This expansion increases the likelihood of lawsuits against nonphysician health care providers.” (Krapp & Cengage, 2006, “Malpractice,” p.1). A nurse can be charged with negligence as a consequence of any action or failure to act that causes injury to a patient which can be defined as malpractice. Krapp and Cengage (2006) illustrate that legally, “malpractice is classified as tort, which is a wrongful act resulting in injury to another’s person, property, or reputation.” To be charge with tort, there must be four elements: Duty of care towards others, failure to exercise due care, causation of injury, and injury (p.1). Case Study A surgical nurse working at George Hospital and at 1600 she received a patient from the recovery room who has had a totally hip replacement. She notes that the hip dressing are saturated with bright red blood, but she is aware that total hip replacements frequently have some post operative oozing for the wound. There is an order on the chart to reinforce the dressing PRN

Medical Malpractice 3 and she does so but when she checks it at 1800, she finds that the reinforcements is saturated as well as drainage on the bed linen. The nurse calls the physician and tells that she believes the patient “is bleeding too heavily” but the physician reassures her the amount of bleeding described is not excessive and to continue to monitor the patient closely. The nurse rechecks the patient’s dressing at 1900 and 2000. Again, the nurse calls the physician and tells him “the bleeding still looks to heavy.” He reiterates his reassurance and continues to tell the nurse to monitor the patient closely. At 2200, the patient’s blood pressure drops precipitously and she goes into shock. The nurse summons the physician, who arrives immediately. This case study clearly shows a communication breakdown between nurse and physician, also a dismissive attitude by the physician toward the nurse but does it have the four elements to hold the nurse liable for malpractice? Legal Ramifications It is important to understand that nurses have a legal and moral duty to advocate for the patient at all cost. According to Board of Registered Nursing in California explains the scope of RN practice under independent functions “subsection (B) (1) of section 2725 authorizes direct and indirect patient care services that insure the safety, comfort, personal hygiene and protection of patients, and the performance of disease prevention and restorative measures. Indirect services include delegation and supervision of patient care activities performed by subordinates.” In this case study, the nurse did not practice indirect patient care to insure the patient safety and protection. The next issue is to understand that negligence by a nurse which is defined by The Joint Commissions on Accreditation of Healthcare Organization (JCAHO):

Medical Malpractice 4 “failure to use such care as a reasonably prudent and careful person would use under similar circumstances” and malpractice as “improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physician, dentists, lawyers, and public officers to denote negligence or unskilled performance of duties when professional skills are obligatory and malpractice is a cause of action for which damages are allowed” (Ferrell, 2007, “Malpractice vs Negligence,” p. 63). According to Nursing Malpractice: Sidestepping legal minefields (as cited in Ferrell, 2007) “Malpractice refers to a tort committed by a professional acting in his professional capacity” (p. 63). Ferrell (2007) further illustrate that the law differentiate between intentional and unintentional torts. Unintentional torts that results from negligence by the nurse which the plaintiff prove each of the following: (1) Duty to standard of care, (2) the defendant breach this duty, (3) there was harm to the plaintiff, and (4) the breach of duty caused harm to the defendant (p. 63). In contrast, “an intentional tort is a deliberate invasion of someone’s legal rights. In a malpractice case involving an intentional tort, the plaintiff doesn’t need to prove that you owed him a duty. The duty…is defined by law, and you presumed to owe him this duty” (Ferrell, 2007, p.63). Malpractice Liability According to A. Luu (personal communication, January, 31, 2010), who is a Registered Nurse and Malpractice Attorney, the legal consequence of this case study is that the nurse’s negligence that led to the failure to communicate properly and failure to seek a higher chain of command for treatment that could have prevented the patient from going into shock would hold the nurse liable for medical malpractice. A. Luu further explains that these will be the key issues

Medical Malpractice 5 that a defense attorney will focus on and expect answers as to “(1) why SBAR, which is a form of communication between doctors and nurses, was not used, and (2) why she did not use hospital protocol and procedures to go through the chain of commands for treatment because the fact that she called the physician four different times shows that she knew the patient’s bleeding was abnormal and the physician decision to keep monitoring was a poor assessment and consequently could cause harm to the patient.” According to Sirota (2007), “poor communication between nurses and physicians was the most important factor causing dissatisfaction with nurse/physician working relationship in the nursing91 survey, and it continues to be cited as the most significant issue in the current literature” (p. 54). Furthermore, JCAHO reported that communication breakdown during patient hand-over cause 70% of 2,455 reported sentinel events, 75% of that caused patients death (Sirota, 2007, p. 54). To prove malpractice in this case the four elements must be established which are: duty, breach of duty, causation, and injury. First element is duty which involves the nurse giving care to a patient that is established in the standard of nursing care guidelines that is set forth by the nurses practice act of a particular state and JCAHO (Krapp & Cengage, 2006). In this case the nurse has a legal duty to give prudent care for this patient. Second element is a breach of that duty, in other words, failure to meet that duty that is set forth by JCAHO and the nurses practice act (Krapp & Cengage, 2006). There are two actions the nurse had failed to meet the duty of care for this patient by 1) not exerting assertive communication to the physician of the fact that the bleeding was too excessive for normal conditions of a post operative procedure and 2) the nurse should have followed hospital protocol to go through the chain of command and contact the doctor on duty for a further assessment. The third element is to prove causation which is “negligence directly caused injury or harm to the patient” (Krapp & Cengage, 2006). Again, the

Medical Malpractice 6 nurse neglected to use hospital protocol to go through the chain of command to protect the patient safety. Lastly, the fourth element is verifying that harm and injury occurred and in this case the patient went into shock which could have been prevented had the nurse acted on her instincts and pursued it further. Intervention and Strategies for Prevention The American Journal of Critical Care (AJCC, 2010) reports that “each day, thousands of medical errors harm the patients and families served by the American healthcare system because work environments that tolerate ineffective interpersonal relationships and do not support education to acquire necessary skills perpetuate unacceptable conditions” (p. 188). In other words, co-worker who do not work together as a team and hospitals that doesn’t try to eradicate the problems through education can lead to medical errors that put patient’s lives in jeopardy. The AJCC has developed a synergy model for patient care that creates a: safe, healing, humane, and respectful of the rights, responsibilities, needs, and contributions of all people—including patients, their families, and nurses (AJCC, 2010, p. 188). There are six standards according to AJCC (2010) that are used to maintain a healthy work environment; “these standards represent evidence-based and relationship-centered principles of professional performance” (p. 188). The six standards are: skilled communication, true collaboration, effective decision making, appropriate staffing, meaningful recognition, authentic leadership. 1. Skilled communication is that nurses must be as proficient in communication skills as they are in clinical skills (AJCC, 2010), meaning, to be able to provide safety and excellence requires that nurses and other healthcare providers make it a priority to expand their professional communication skills including written, spoken and nonverbal (p. 190).

Medical Malpractice 7 2. True collaboration is that a nurse must be relentless in pursuing and fostering true collaboration. AJCC (2010) reports that “Nearly 90% of the American Association of Critical Care Nurses’ members and constituents report that collaboration with physicians and administrators is among the most important elements in creating a healthy work environment” (p. 191). 3. Effective decision making is need by nurses to fulfill their roles as advocates and nurses must be involved in patient care (p. 192) 4. Appropriate staffing is needed to ensure patient safety and to the wellbeing of nurses. Staffing must ensure the effective match between patient needs and nurse competencies (p. 192) 5. Meaningful recognition meaning that nurses needs to be recognized and must recognize others for the value each brings to the work of the organization (p. 192) 6. Authentic Leadership requires nurses to demonstrate an understanding of the requirements and dynamics at the point of care and within the context successfully translate the vision of healthy work environment (p. 193). Conclusion Nurses are in the front lines with patient care. They are with the patient longer than any other member of the healthcare team, and the patient also knows this so they put a lot of trust in their nurses; so nurses needs to recognize that they are the patient’s advocates first and by that, they need to ensure the patient’s safety is their first priority. In this case, the nurse was in an ethical dilemma and made a bad judgment by trusting the doctor’s orders to monitor the patient when she clearly felt that it wasn’t the right thing to do by evidence shown that she repeatedly phoned the physician. This error put the patient in harms way and the patient went into shock

Medical Malpractice 8 because the nurse was not assertive enough to seek a different venue for evaluation. Ignorance is no excuse in this case because had of she followed hospital protocol and went to her immediate supervisor with her concerns this situation might have been avoided.


Medical Malpractice 9 The American Association of Critical-Care Nurses. AACCN Standards for Establishing and Sustaining Healthy Work Environments: A Journey to Excellence. Am J Crit Care 2005 14: 187-197 Ferrell, K. G. (2007). Documentation, Part 2: The Best Evidence of Care. American Journal of Nursing, 107(17). 61-64. “Malpractice.” Encyclopedia of Nursing & Allied Heath Ed. Kristen Krapp. Gale Cengage. 2006. Retrieved February 05, 2010 from malpractice State and Consumer Services Agency, Board of Registered Nursing (n.d). An Explanation of the Scope of RN Practice. Retrieved February 03, 2010, from Sirota, T (2007). Nurse/physician Relationships: Improving or Not? Nursing, 37(1), 52-58. Retrieved February 05, 2010 from Weld, K., & Bibb, S.. (2009). Concept Analysis: Malpractice and Modern-Day Nursing Practice. Nursing Forum, 44(1), 2-10. Retrieved February 3, 2010, from Health Module. (Document ID: 1658385801).

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