In Part I we discussed what may constitute a malpractice claim against a nurse. The main point to be made in this article is to convince you to maintain a current working knowledge of nursing law, standards, policies and procedures and to document the care you provide in order to prove that you provided care which would be considered “good and accepted practice.”
The significance of medical records is both scientific and legal. As a record of illness and treatment, it saves duplication in future cases and it helps in immediate treatment. There should be thorough documentation. Documentation of patient care may not be nurses' favorite activity; however, nurses who find themselves involved in lawsuits and have documented thoroughly will thank themselves later. Charting is almost certainly the most essential facet of proving that nurses have met the standards of care. The nurses' notes are aids to medical diagnosis and in understanding the patient's behavior. In addition, it serves as a legal protection for the facility, doctor, and nurse by reflecting the disease or condition of the patient and its management. Proper documentation reflects the quality of care that you give to your clients and is evidence that you acted as required or ordered. Healthcare providers must comply with established standards of care. Standards of care arise from many different sources:
When dealing with statutes and regulations, it is important to understand those in your own state. Violating any one of them would make you automatically negligent (not exercising the degree of care that a person of like training and experience would do under the same or similar circumstances) without the right to defend yourself. On the brighter side, proof of your compliance to any particular statute or regulation can be used in your defense to show that you did follow a standard of care.
Practice guidelines and agency policies and procedures are not laws. Failure to follow them does not mean that you are automatically negligent. What it does mean is that it will be up to a jury to decide whether or not you were negligent. Practice guidelines and agency policies and procedures are often introduced as standards of care by a prosecuting attorney trying to prove that negligence has occurred. On the other hand, a defense attorney will use the same guidelines and policies/procedures as evidence that standards of care were met.
Expert witnesses are used by both prosecuting and defense attorneys to establish standards of care. Depending on the kind of legal case, an expert witness could be a nurse, a doctor, a facility administrator, etc. They are usually individuals who are well known and respected in their field. An expert's role is to explain to the jury the standard of care based upon their particular area of expertise. They are allowed to use articles, practice guidelines, policies, etc. to prove their point. The jury will interpret the opinions of the expert witnesses and determine for themselves if negligence has occurred.
Although your employer should periodically update their policies and procedures and keep you informed about new or revised standards of care and/or state legislation, it is still your responsibility to get that information for yourself so that you can minimize your risk of liability.
Along with keeping yourself informed, it is also critical that you value doing complete and accurate documentation in the medical record as yet another means of avoiding liability. It is well known that the medical record can change the entire climate surrounding a lawsuit. In fact, medical records, in themselves, may be the very source of a lawsuit. Not only is complete and accurate documentation a means of telling the story of a client's health care history over time, but it is also often required to justify reimbursement of services that are provided to a client. When that reimbursement is coming from programs like Medicare and Medicaid, denial of those funds would certainly be a critical situation in agencies caring for the elderly and/or the poor.
Failure to document or faulty documentation on your part is risky behavior that should be avoided. Knowing that, it is highly suggested that you obtain a copy of the documentation standard (policy) where you are employed and become very familiar with it. Questions you may have can be directed to either your immediate supervisor or a member of the education department in your agency.
Above all, the best way for the nurse to avoid a lawsuit is to be aware of the standards of nursing practice and follow them by heart. Ultimately, to prevent errors, nurses should meet the standards of care. It also implies that a nurse should be aware of their employer's policies and procedures, the state nursing practice act, and the professional standards of his specialty. Ergo, nurses should exercise their sound verdict and employ standards of nursing care in order to avert lawsuits or to protect themselves.
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