Our chat tonight, April 24, 2001, will be hosted by Linda Agustin Simunek, RN, PhD, JD. Dr. Linda Simunek is the Head, School of Nursing and Associate Dean, Schools of Pharmacy, Nursing, and Health Sciences at Purdue University, Indiana. She has held positions on the boards of various nurse registration boards and ethics committees. Tonight Dr. Simunek will address nursing liability, medical (professional) negligence, as well as licensure issues. <Robin> Welcome! We are chatting with Linda Agustin Simunek, RN, PhD, JD, about nursing liability, medical (professional) negligence, as well as licensure issues. <Ana Maria3> If an MD's orders are questioned by an FNP over the phone, and the MD says to proceed, is the FNP liable for any injury sustained by the client as a result of the MD's orders? <Dr. Simunek> it depends on what the order is and if the question has to do with medication, dosage, etc. There is liability...it depends on the subtle facts. <Dr. Simunek> to expand on that, there are five elements to liability that must be shown before someone can be sued, or a legal action is taken against a professional provider. The first is the duty of care owed to the patient or client <Ana Maria3> ok. FNP questions Rx dosage for child, checks with pharmacy and MD who both say to proceed, even though dosage greater than recommended. FNP proceeds, child injured, liability? <Dr. Simunek> the FNP has the duty to give the right meds, the correct dose at the right time and place, and the right route of administration <Drew> I don't see what the difference is between checking the details on the phone or in person. If there is doubt as to the safety of the dosage or whatever then the nurse should withhold until fully sure <Dr. Simunek> for an FNP, the standard expectation is higher than that of the RN. Lets say you are an RN, and your regular work setting is the peds unit and you're being asked to float to the med /surg unit. There are nursing procedures that are generic functions that a nurse fulfills in any unit or setting. In the nurse practice act there are core functions that any RN is expected to be able to fulfill. It is the responsibility of a nurse to maintain skills and competency. <Drew> I would say it is easier for a med/surg RN to find herself in trouble after being floated to a peds unit rather than the other way around. <Sandy> Do students need insurance? <Dr. Simunek> Sandy, generally, students are covered by the educational institution's insurance policy while they are functioning within the nursing student role. In other words, when they are carrying out responsibilities related to their program of study or curriculum <Dr. Simunek> however, if they worked as a nursing assistant or aide outside the role of a student nurse, then they are not covered by the school's policy <Sandy> I know, but my public institution thinks we should have the students get their own individual insurance as well. Crazy? <Dr. Simunek> Sandy, it depends...it might be that the institution does not have an institutional insurance policy or that the amount of insurance that they carry is not adequate to cover the expected risk. You should follow the requirement if you want to remain associated with the institution...there must be a reason why they are requiring it....you have the right to know the reason and get an explanation from an administrative officer of the institution, such as the dean of students. Also, every institution, big or small, has a policy handbook where this should be explained and made available to all the students and the public...this is an accredidation requirement. <Sandy> unfortunately, malpractice is not addressed in the policy manual, I'll ask more pointed questions of our attorney. Thanks much. <Dr. Simunek> even in an employee situation the hospital usually carries a policy <Drew> Going back to the order that was checked over the phone... I am not sure what can be done if both pharmacist and doctor give the go ahead, especially if a reason is given for the unorthodox dose <Dr. Simunek> well, you can call your nursing supervisor and let the supervisor talk to the Dr., and if you still feel uncomfortable, have the supervisor give the meds. Also, if the supervisor is not sure, contact the medical director of the institution, even if they are not on site they are still responsible. The legal doctrine for this is called respondent superior which means let the master answer. There are two separate duties of care, one is the duty of the individual employee, and the other is the corporate duty, the corporate liability doctrine. <Drew> Is this the same as vicarious liability? <Dr. Simunek> yes it is, Drew <Drew> Legally is an advanced practitioner (NP, CS, etc) liable if there is a detrimental result but both pharmacist and doctor confirmed this is ok to give? <Dr. Simunek> yes, if there is an injury, there is liability. The standard is what would a reasonable FNP or RN do under similar circumstances, and in order for the professional to be considered liable under the law, it has to be shown that what the professional did (commission) or what the prof. did not do (omission) within a degree of medical certainty, which means anything beyond 50%. <Drew> Most reasonable RNs, as I have seen in Australia, check with a number of sources (eg, pharmacist and another doctor), but as you have just said, this is not enough. <Dr. Simunek> you will need expert testimony <Dr. Simunek> right, but you can spread the liability by getting something in writing in the medical records. It would also help if they belong to their professional nurses association, because those organizations have updated information via seminars, workshops, CE courses, etc. <Drew> When you say spread the liability do you mean that liability will fall on someone else or will it fall on you AND the others you consulted? <Dr. Simunek> It will fall on you and the others <Dr. Simunek> In the US there is a concept called contributory negligence. The way to compensate someone for medical malpractice injury is through monetary awards and so, the laws in every state are different, but the principal is followed. In some states if it can be shown that the pt. is contributory negligent, then they cannot sue. Nurses should feel free to consult with lawyers as consulation is always free. <Drew> Are you saying that organisations such as hospitals should have a resident lawyer available for employees to consult with? <Dr. Simunek> they always do <Drew> This is news to me. We were certainly never informed of this service and I will inquire about this from now on. Thanks. <Dr. Simunek> in the US there is a department called Risk Management in every hospital. Do you have that in Australia? <Drew> We have a QA department and there are people who assess risks like when incident reports are filled out for needlesticks or other injuries. But I was not aware of lawyers working in this department or providing their services free of charge to nurses. <Dr. Simunek> you have the right to request continuing education or inservice training re: liability and risk management issues <Dr. Simunek> The other term is CQI, Continued Quality Improvement or TQM, Total Quality Management <Dr. Simunek> The process of maintaining efficiency and anticipating/preventing risk is a core function of any health care setting now. The terms may change, but the process is the same. <Dr. Simunek> In the US each state is sovereign ...every state has absolute power to govern within its geographical boundaries. Endorsement or reciprocity is sometimes given from one state to another. With the advent of the use of computers in nursing and medicine, there is a trend in the US for a licensure compact, wherein four adjoining states will recognize that if one is licensed in one state, you do not have to apply for reciprocity if you are a member of the compact. <Drew> This could pose some ambiguity, could it not? <Dr. Simunek> In a global economy, the issue of licensure agreements among countries is presently explored through free trade agreements. <Dr. Simunek> Like NAFTA <Robin> Dr. Simunek is presenting a paper on this topic in Europe <Anonymous4711> what is NAFTA? <Dr. Simunek> in Europe, they have the European Union, and they have recognized licensure for nurses from one European country to another. <Drew> It seems that documentation is the focus of nursing these days. Often at the expense of good or thorough nursing care. I guess it is the product of a litigious society. Do you think we can avoid having this conflict between time-consuming documentation and adequate care? <Dr. Simunek> Research shows that good communication, interpersonal relationship with a patient and rapport is essential to prevent lawsuits. <Drew> I agree, but the family may not see it that way. <Dr. Simunek> Well, some hospitals are better at preparing flow charts to help with documentation than others. <Dr. Simunek> There is no way to avoid documentation, because if its not recorded, its considered not having been done. <Anonymous4711> In S.A. we are starting to use flow charts such as clinical pathways. This is more work as we still write notes, is this the fear of litigation? <Drew> Sure, but documentation used to be a 5 minute or less process per cl/pt but now I see nurses with 10 years experiences dedicating 20 minutes to each report and doing a lot more during the day. <Dr. Simunek> Yes, that is part of it, but the larger part is to improve the quality of care, and by using clinical pathways, the intent is to cut down on cost and identify the most effective way to give nursing care. In the US the term used is evidence based outcomes. <Drew> Clinical pathways is also an effort to create a more integrated (multidisciplinary) approach to care. <Dr. Simunek> Thats right, Drew. That is exactly the whole principle behind managed care. The concept of managed care is to integrate healthcare services and to deliver care to populations. Total communities instead of the individual becomes the locus or unit of care because acute care is the most costly care in the US. Everything is done to deliver the care in the home or ambulatory setting. <Robin> Dr. Simunek went to Cuba and saw firsthand how primary healthcare is integrated by a healthcare team. <Anonymous4711> We in Australia have moved the next step from E.B.O. and now search for evidence based research <Dr. Simunek> In Cuba, there is a home in every area of 150 families where there is a nurse and doctor in residence for 24 hour healthcare where they are assisted by dentists, geriatric experts, epidemiologists, psychologists, nutritionists, etc. AND HEALTHCARE IS FREE <Anonymous4711> Would you administer any thing that the Dr. had not "written up"? <Drew> I wouldn't but when it is an emergency many nurses will. I flatly refuse. It is the doctor's prerogative as I have been taught. <Dr. Simunek> Well it depends on whether it was a telephone order and what the policy of the unit or hospital is. <Drew> I will give something by telephone order because usually it is then not my responsibility to chase up the written order :-) <Dr. Simunek> Right, if the patient needs the medication you cannot wait for the physician to be there, like in the case of arrhythmia. <Anonymous4711> Drew, that is what we are being taught, if something went to court and we had given something that had not been written up it would be deemed that we had prescribed and we would be liable. <Dr. Simunek> The way to protect yourself is to have a written protocol, or standing orders for a given clinical situation so the nurse should be actively involved in formulating policy such as policies relating to medication order. <Drew> What about the unexpected? <Dr. Simunek> They have the right to always call the nursing supervisor or DON. <Anonymous4711> The DON would be an answer for me in the rural remote setting....thanks <Dr. Simunek> Your protocols should anticipate the unexpected and provide for the "what ifs". <Dr. Simuek> In our current state of knowledge, we are able to identify what these emergency situations might be and develop protocols. <Anonymous4711> None of our protocols cater for the "what if's". <Robin> Are there any further questions for Dr. Simunek about nursing liability or licensure? <Anonymous4711> Excuse our ignorance, we looked up the meaning of "licensure" and were unable to find a definition, please define.... <Dr. Simunek> Licensure is a privilege accorded by a governmental unit in order to protect the health, welfare and public safety. In the US this right of the state is called Police Power. The license is a privilege given by the government and is regulated by a board. These boards are appointed by state governors to oversee and monitor the practice act and take disciplinary action so the board can revoke and suspend licenses, and can also renew licenses. The nurse practice act is passed by the legislature but the rules and regulations are formulated by the members of the board. Usually the board consists of a majority of the professional nurses, but there is always a lay person who is a member of the board, to strengthen the accountability of board. <Robin> Thank you, Dr. Simunek, for your participation and sharing your expertise about nursing liability and licensure issues. She can be contacted by email at simunek@nursing.purdue.edu <Drew> Dr Simunek, thanks very much for your time and energy. <Robin> Goodnight all! |
