The expanded role of nurses and the increasing demands placed on them have led to an expansion of legal liability for malpractice. Historically, liability fell upon physicians, and the nurses were largely considered an administrative arm of the physician. However, the nurse's responsibilities of patient care management have opened new doors for legal claims against nurses.

What Constitutes Malpractice?

• Not all unexpected, unintended, or even undesired medical results can be attributed to the fault of the healthcare provider. A patient must prove four elements to establish a malpractice case.
• There must be a nurse-patient relationship. It is out of the nurse-patient relationship that a nurse's duty to the patient arises.
• The patient must establish the scope of the duty that was owed by the nurse; this is usually done though an expert witness testifying about the care that was required.
• There must be a departure from “good and accepted practice.” Good and accepted practice is most often defined as care that would have been provided by the ordinarily prudent nurse practicing in the particular circumstances.
• It must be shown that the injury was caused by the act or acts that departed from accepted nursing care. It must be proved that if the nurse had not been negligent, then more likely than not, the patient would not have suffered harm.

What Events Commonly Result in Malpractice Cases?

The primary causes of litigation arising from medication errors are wrong dose given, wrong drug administered, incorrect method of administration, and failure to assess for side effects and toxicity.

Another common cause is the failure to properly monitor and assess the patient's condition and failure to properly supervise a patient resulting in harm. Typically, negligent monitoring cases arise from a nurse's failure to perform an assessment and notify the treating physician of changes.

The need to advocate on behalf of a patient when the suitability of care is at issue is also a common allegation. In many instances, merely carrying out a physician's order may insulate a nurse from liability. However, it is well established that such orders will not insulate the nurse when the orders are questionable. Therefore, a nurse has an obligation to advocate on behalf of the patient when issues arise about the course of care or treatment being provided. The issue in these cases arises from the nurse's duty to keep the patient safe.

How to Decrease Your Risk of a Liability Claim

Utilizing the nursing process and employing critical thinking may decrease bad outcomes that commonly lead to malpractice claims. The steps of the nursing process are described as follows:

• Assessment;
• Problem/need identification;
• Planning;
• Implementation;
• Evaluation.

By ensuring that each step is taken and that reflection is given by using critical thinking, the likelihood of an avoidable adverse medical event occurring is less likely. In medication administration, the 5 Rs are often cited: right patient, right drug, right route, right dose, and right time. All too often one or more of these “rights” are violated, and a patient is injured. As with any order, guideline, directive, or principle within the nursing process, following these steps is only the beginning. To ensure that the clinical circumstances warrant implementation of the order, critical thinking is essential when administering any drug.

Why is Documentation so Important?

At trial, each party presents evidence, including testimony of witnesses, in an effort to prove their position. The jury then deliberates and determines the facts based on what they believe most likely happened. The jury then applies the law and decides whether the facts, as they have determined them to be, create liability.

In negligence cases, discrepancies include disputes over symptoms complained of, signs that did or did not exist, and care or treatment that was recommended and/or provided. In an effort to determine the facts, the jury will study the medical record. Each record is unique in that it is usually created at a time when there is no interest in a legal outcome. The difficulty will lie in proving that something was done when a patient's attorney is suggesting that it wasn't and there is no supporting documentation.

The question on the minds of the jury will be if there is no documentation, did the nurse actually perform according to nursing standards. Your credibility will most certainly be in question if you said you did perform according to standards but did not document your actions. After all, you have already proven that you don't always perform according to nursing standards because you did not document all your actions. Without such documentation, it then becomes the task of the jury to determine the nurse's credibility, and draw inference from the existing documentation.

Conclusion

For nurses, the chance of being named in a malpractice lawsuit remains relatively small. However, the risk clearly is increasing. Utilizing good nursing care and employing critical thinking will significantly decrease the likelihood of being named in a malpractice lawsuit. Your skill combined with good documentation technique is the best way to avoid an adverse legal outcome in the event that you are sued.

Part II – Our next article will pertain to standards of care. You will be held accountable.