Content courtesy of Berxi.
In October 2022, a registered nurse from North Carolina was accused of murder after administering fatal doses of insulin to two patients. He was labeled a “rogue nurse” in the headlines, but legal nurse consultant Janice Dolnick, BSN, RN, had a different perspective.
“The nurse hasn’t even had a fair trial, yet he has already been labeled a murderer,” said Dolnick, CEO of Legal Nurses for Justice, an organization that provides legal consulting to attorneys and healthcare facilities. “There are always two sides to these stories, and unfortunately, the nurse often gets destroyed before anyone knows what really happened.”
She wonders whether others could be at fault, whether the drug was labeled properly by the pharmacy, or if the wrong dose was in the refrigerator — among other potential issues.
Being criminally charged with harm to a patient would probably make a top 10 list of nurses’ worst fears, along with being a defendant in a professional negligence lawsuit or losing their license to practice. But there are some things nurses can do to protect themselves.
Nurses fear lawsuits
Since Dolnick founded her company in 2009, she has seen nurses grow increasingly afraid of lawsuits as working conditions worsen in many facilities and healthcare organizations seem more willing to decline responsibility when nurses face criminal charges, she said.
According to an analysis of more than 4,600 events that led to malpractice suits from 2018 to 2021, nurses were involved in 18% of the suits. The researchers identified 850 specific events in which nurses were directly involved in care that resulted in an alleged medical error.
Although the fear of legal repercussions has intensified in the nursing community, legal professionals like Dolnick and Nancy Brent, MS, JD, RN, are eager to educate nurses about how they can protect themselves. By understanding the litigation process and learning to advocate for themselves, nurses can decrease the risk of facing legal troubles, said Dolnick.
One vital strategy nurses can leverage to protect themselves is through detailed documentation. Dolnick’s team worked on a case involving a nurse whose patient had died of sepsis from an infected wound. The wound was initially small, but it worsened over the course of a week.
The nurse documented her interactions with the patient and staff, including requests for help from physicians and hospital management. Despite her efforts, she reportedly received little help. The family filed a lawsuit, and the nurse’s documentation helped exonerate her.
Throughout the past decade, Dolnick has seen how vague documentation can fail to protect nurses in lawsuits. “You need a detailed picture of the patient’s condition and response to a treatment because that leaves less room for interpretation,” she said.
For example, writing “Patient woke up from surgery and will continue to monitor,” is not adequately specific. She encourages nurses to note what time the patient awoke, any observations they made after the patient awoke, their vital signs, and if there are post-operative complications.
Another vague statement is, “Patient educated, verbalizes understanding.” If a nurse is teaching a patient how to use a nebulizer, for example, they should document details about what was taught — such as how to use the correct dosage, frequency of use, and potential side effects — and information about a scheduled follow-up appointment with the patient’s physician to monitor progress.
Even though many legal precautions take extra time, Dolnick relies on those details when she is collecting evidence for cases. Reviewing the policies and procedures before a task is also wise, said Dolnick. “Even with something as simple as starting an IV, there are certain steps to ensure that nurses do not cause injury,” she said. “Nurses are so busy, and this can reduce the risk of an error.”
Protect patient privacy
Lawsuits involving patient confidentiality — which is protected by the Health Insurance Portability and Accountability Act (HIPAA) and state laws — are also common, and Brent encourages nurses to be cautious when patients, friends, or relatives ask for information that may initially seem harmless.
In one reported case, a nurse gave information about a patient to a former employee, who was related to the patient. The former employee had power of attorney for the patient’s health care, and the nurse thought this would cover any legal issues.
“This was a violation because the nurse had never taken care of the patient,” said Brent, a nurse attorney who owns a law practice in Wilmette, Illinois, and a freelance writer for Nurse.com. Brent represents nurses in disciplinary proceedings before the state agency and board of nursing.
Brent also urges nurses to think carefully when using social media. In one case, a nurse posted a photograph she had taken at work with two other nurses. Although the photo did not include patients, the daily assignment board with patient names and diagnoses was visible, which was a violation of patient confidentiality laws.
Listen to your instincts
Having confidence in their critical thinking skills is another way nurses can protect themselves, said Brent. The case of RaDonda Vaught, a Tennessee nurse who was convicted in March 2022 of two felonies for a fatal drug error, highlighted the importance of clinical judgment.
Vaught’s patient at Vanderbilt University Medical Center was prescribed Versed, a sedative to calm the patient before a PET scan, but the nurse overrode the medical cabinet and withdrew the wrong medication. She mistakenly administered vecuronium, which led to muscle paralysis. As a result, the patient could not breathe and died.
“There were warnings on the label, and the medication was a powder that had to be reconstituted rather than a liquid like Versed,” said Brent. “If she had used critical thinking instead of assuming it was safe because the cabinet had dispensed the drug, then the outcome may have been different.”
But even if Vaught bypassed these warnings and other red flags from the cabinet, the tragedy also exposed flaws in the hospital’s medication system, said Brent. For example, the system likely lacked policies that required nurses to verify these paralyzing medications with colleagues before administering them to patients.
Unified voices create change
Although Brent and Dolnick share their expertise about lawsuits and other legal entanglements through blogs and other forms of outreach, they agree that more education is needed.
“Nurses should understand the legal ramifications of their practice, and they can’t learn this in one short course in nursing school,” said Brent. “The legal ramifications of nursing practice need to be emphasized throughout their educational experience.”
Dolnick and Brent suggest nurses secure their own malpractice insurance rather than relying on their employers to cover them and to advocate for system changes that better protect them.
“I see more nurses forming legal support groups and rallying together when one of their own is unjustly punished,” Dolnick said. “We need to reverse the trend of criminalizing nurses who are in work environments that put them at risk of errors.”
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