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Understanding Medical Malpractice: What the Nurse Practitioner Needs to Know


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Title: Understanding Medical Malpractice: What the Nurse Practitioner Needs to Know

Understanding Medical MalpracticeWhat the
Nurse Practitioner Needs to Know
  • Robert D. Walker, JD, MSN, RN, FNP-BC
  • January 31, 2015

  • This lecture does not, in any way, constitute
    legal advice or the practice of law and is not
    intended to replace legal counsel.

Establishing the Need to Know
  • Knowledge is empowering
  • Move from fear-victim mode
  • -to-
  • proactive-preventive mode

Anatomy of a Medical Malpractice Cause of Action
  • A form of negligence
  • Liability exists whether actions were intentional
    or unintentional
  • Negligence results when the nurse practitioners
    conduct falls below the standard of care
    established to protect the patient from an
    unreasonable risk of harm

  1. Duty
  2. Breach of Duty
  3. Actual and proximate causation
  4. Injury

  • To provide a standard of care, that other
    reasonably prudent nurse practitioners, in the
    same set of circumstances, would provide

DUTY Standard of Care Considerations
  • Nurse Practice Act of your State Board of Nursing
    defining your scope of practice
  • National treatment guidelines
  • Institutional treatment protocol/guidelines
  • Expert testimony

  • A deviation from the standard of care
  • An expert witness may be deposed
  • As a board certified nurse practitioner, national
    standards will be used, in part, as the benchmark
    of the acceptable standard of care

  • The analysis of the actual causation element
    involves the but for test
  • But for the nurse practitioners action, injury
    would not have occurred
  • Foreseeability the injuries were the result of
    the nurse practitioners action and the injuries
    were foreseeable before the injury occurred

  • A patient came to a medical office for a HP. A
    NP took the history and noted that there was a
    remote history of ulcer with no recent
    complaints. The patient came back later
    complaining of back pain. A physician read the
    NPs history and initiated aspirin therapy. The
    patient developed a GI bleed. The patient sued
    the NP for failing to diagnose an ulcer and sued
    the physician for failing to order an endoscopy
    before starting the patient on aspirin. The
    court found for the NP and the physician. The
    court found that the patient had failed to prove
    a connection between the patients GI bleed and
    failure to diagnose the ulcer in order to order
    an endoscopy earlier. The plaintiff failed to
    prove actual and proximate causation.

  • Injury must be proven
  • By presentation of
  • Medical bills
  • Expert testimony
  • Direct evidence of pain and suffering

Systematic Approach to Primary Prevention of
  • Incorporate a review of the elements of medical
    malpractice into each encounter
  • Reflexive process of thinking

Hot Spots for Negligence
  • Rule out the worst diagnosis early on
  • ( C. Buppert 2010)

Hot Spots for Negligence (Rule Out The Worst
Diagnosis Early )Example
  1. Middle-aged man experienced chest pain at work
  2. NP evaluated and conferred with physician
  3. NP diagnosed muscle spasm and gave Valium Rx
  4. Went to ER was given codeine
  5. The next day went to the ER and after EKG
    performed, was diagnosed with MI
  6. Plaintiff sued for lost wages and won against NP

  • Electronic communications are discoverable
    (E-Mail, etc.)
  • May be used to demonstrate admission of an error
  • May be used to demonstrate a pattern of mistakes
    that have been admitted

Case Study
  • Mrs. Smith, age 70, has a history of diabetes,
    presents to your clinic with a five day history
    of urinary frequency and dysuria. She denies any
    N/V, abdominal pain, or flank pain. She
    indicates her diabetes is well controlled and her
    fasting blood sugar this morning was 98.
  • Meds Lantus 30 units daily
  • Allergies PCN
  • UA results
  • Glu negative
  • SG 1.010
  • Bili negative
  • Blood trace
  • Nitrates positive
  • Leukocytes3

Case Study
  • What would be a reasonably prudent approach?
  • a.) Send urine for CS, then treat with Cipro
    500mg. BID x 7 days
  • b.) Bactrim DS, one BID x 3 days
  • c.) Dont treat and inform her she must see her
    PCP within 12 hours or if not available go to
    the ER for further treatment

Hot Spots for Negligence (Rule Out The Worst
Diagnosis Early )Example
  • You are working as an acute care NP in a
    community hospital. You received a call from a
    seasoned RN notifying you that Mrs. Jones needs
    something for anxiety, She otherwise appears
    OK and vital signs are OK . She was
    prescribed Ativan in the past
  • 5d post op for ORIF left hip
  • Non smoker
  • Pulse ox 90 on room air. NO hx of COPD

Hot Spots for Negligence
  • A patient saw a family NP for a complaint of
    discharge and constant scabbing of one of her
    nipples, of several months duration. The NP
    ordered topical and oral antibiotics and a
    mammogram, which was negative. The patient
    return seven months later with continuation of
    pain and discharge from the same nipple. The NP
    referred the patient to a dermatologist. The
    patient did not see the dermatologist. Four
    months later, the patient saw her gynecologist,
    who again treated her breast symptoms with
    antibiotics, and assured her that she did not
    have cancer. The patient saw the NP several more
    times the year following the first visit.
    Eighteen months after the first visit, the
    patient came to the NP with unmistakable masses
    in her breast. The NP referred the patient to a
    surgical oncologist who diagnosed Pagets
    disease. The cancer had metastasized and the
    patient died shortly after the diagnosis. The
    court said all three providers breached the
    standard of care.
  • Q. What the NP can learn from this case?
  • A. Always follow up on symptoms from the past.

Hot Spots for Negligence
  • A 35-year-old woman visited a primary care
    physicians office for various ailments in 2001
    and 2002. She saw a primary care physician twice
    and a NP four times. The patient had a history
    of spleenectomy in 1985. She had received a
    pneumovax following the procedure. She not
    receive Haemophilus or meningococcal vaccine.
    Subsequent to 2002 the patient developed a
    pneumococcal infection which called for a 3-month
    hospitalization and a 2-month stay in a rehab
    facility. During her hospitalization she became
    septic, suffered organ failure, and necrosis of
    her toes. She can now walk only short distances
    and suffered from chronic infections and pain.
    The patient/plaintiff contended that the standard
    of care required the defendants to revaccinate
    the patient with a pneumovax booster due to her
    asplenia. The plaintiff contended that if the
    defendants had complied with the accepted
    standard of care, then she would have avoided her
    subsequent pneumococcal infection. The
    clinicians argued that the patients visits had
    all been for acute sick visits, not annual
    preventive and wellness physicians, which did not
    provide them with the opportunity to recommend or
    administer a pneumococcal vaccination. The
    parties reached a 3M settlement.
  • Q. What the NP can learn from this case?
  • A. Always perform a health-maintenance screen
    after every visit. 

  • Follow established national guidelines as well as
    the policy and procedures of the organization in
    which you are practicing
  • Remember the phrase, Ordinary reasonable care
  • Would a reasonable nurse practitioner in your
    situation make the same decisions?

NSO Case Study 1
  • 79yo post-op oophorectomy with a wound
  • NP ordered home care
  • MD ordered honey
  • Documentation was inconsistent NO b/p taken
    until day 14
  • On day 16 NP was informed patient had fallen
    twice, with increase weakness, fatigue. (T 95, P
    100, R 18, BP 102/54)
  • Day 17 the patient died

NSO Case Study 1breach of the duty of care
  1. Failure to assess the patient
  2. Failure to properly monitor the patients vital
    signs and IOs
  3. Failure to respond to signs of sepsis
  4. Failure to communicate the the patients
    physician and to direct patient to the ER
  5. Note 95 degree temp. in a 59 y.o.

  • Contributory negligence, assumption of the risk,
    or comparative negligence
  • Ohio and Pennsylvania are comparative negligence

Defense Strategy Comparative Negligence
  • Modified Comparative Fault 50 rule
  • An injured party can only recover if it is
    determined that his or her fault is 49 or less.
    Thus, no recovery if the Plaintiff is 50 or more
    at fault
  • (Arkansas, Colorado, Georgia, Idaho, Kansas,
    Maine, Nebraska, North Dakota, Oklahoma,
    Tennessee, Utah, and West Virginia)

Defense StrategyComparative Negligence
  • Modified Comparative fault 51 rule
  • The injured party must be 50 or less at fault to
    recover damages. Thus no recovery if the
    Plaintiff is 51 or greater, at fault
  • Ohio and Pennsylvania follows this rule of law
  • How might you incorporate this rule of law in
    your daily clinical practice as a defensive

Defensive StrategyComparative Negligence
  • Mr. Jones is a 62yo male who has a history of
    HTN, DM, A-Fib, COPD, and CABG.
  • Refusing to stop smoking there is nothing you
    can say that will make me stop
  • Frequently will forget to take his medication
    (all of them are on the 4.00 list at Walmart)
  • Refusing to get the abdominal US for the
    abdominal bruit due to cost.
  • Now that you know about comparative negligence
    what should you focus on, in part, when you
    document in the medical record?

Defensive StrategyComparative NegligenceSpeak
to the Jury when you chart
  • In the medical record
  • Quote Mr. Jones about his refusal to stop
    smoking. Discuss that his decision can increase
    his risk for morbidity and mortality
  • Discuss the risks associated with forgetting to
    take his medication. Discuss ways to help him
  • Explain why the abdominal US is needed and the
    risks of a delay in diagnosis and/or treatment
  • Have patient sign your note. If you are using
    and EMR, print your note and have the patient
    sign it, then rescan it back into the EMR
  • Send a certified letter

Documentation Tips
  • Use direct quotes to demonstrate your attention
    to the patient, highlight main areas of concern,
    build credibility into the record, and accurately
    document a patients competency, affect, and
    attitude. For example I have been to 12
    doctors and no one can help me.

Documentation Tips
  • Further, quoting the patients abuse or
    threatening words will sufficiently demonstrate
    their level of cooperation and credibility, while
    removing any bias in your interpretations

Documentation Tips
  • Include supportive, reproducible observations
    If a child appears nontoxic, list reasons to
    justify this description, such as child is
    observed climbing on and off the exam table,
    smiling at intervals and is hopping on one foot
    while in the exam room

Documentation Tips
  • After performing any procedures
  • always document the condition of the patient
    after the procedure
  • For example Tympanic membrane visualized
    after irrigation intact without any erythema.

Special Consideration
  • Suits in an outpatient settings often involve the
    mismanagement of tests. An office practice
    should be designed so that when tests are
    ordered, there is a fail-safe mechanism to make
    sure that they are reviewed in a timely manner.
    A delay in treatment is a significant source of
    liability in the outpatient setting.

Special Consideration
  • Check your facilitys test log daily.
  • Call the lab to obtain the results. If the
    results are not available, document in the
    patients EMR that you attempted to obtain the
    results Spoke with lab to obtain Mrs. Cs
    urine culture results, but results are still
  • If other NPs after you fail to obtain the results
    in a timely manner, the chart will reflect that
    you were still diligent.

Patient EducationCan Reduce Malpractice
  • The Role of the Nurse Practitioner

The Right to Understand
  • Patients have the right to understand healthcare
    information that is necessary for them to safely
    care for themselves, and to choose among
    available alternatives

The Right to Understand
  • Healthcare providers have a duty to provide
    information in simple, clear, and plain language
    and to check that patients have understood the
    information before ending the conversation
  • The 2005 White House Conference on Aging Mini
    Conference on Health Literacy and Health

Patient Teaching
  • .a major role of the nurse practitioner
  • 40-80 of the medical information that patients
    receive is forgotten immediately
  • 50 of what the patient does remember is incorrect

Teach-Back Method
  • Used to confirm comprehension
  • NOT a test of the patients knowledge it is a
    test of how well the concept was explained to the

Teach-Back Method is Evidence-Based
  • The medical providers application of interactive
    communication to assess recall or comprehension
    was associated with better glycemic control for
    diabetic patients.
  • Schillinger, Arch Intern Med/Vol 163, Jan 13,
    2003, Closing the Loop

Asking for a Teach-Back
  • Ask patients to demonstrate their understanding,
    using their own words
  • I want to be sure I explained everything
    clearly. Can you please explain back to me so I
    can be sure I did?

Asking for A Teach-Back
  • What will you tell your spouse about the changes
    we made to your blood pressure medicines today?
  • Of the two procedures you are going to
    have,which one will you need to stop your
    Coumadin? How many days in advance?

Asking for a Teach-Back
  • Weve gone over a lot of information and talked
    about a lot of things you can do to get more
    exercise in your day. In your own words, please
    review what we talked about. How will you make
    it work at home?

Question to Consider
  • What are specific topics or directions you
    commonly discuss with your patients that you can
    use the teach-back method with?
  • Examples
  • Insulin injections
  • Inhalers
  • Medication changes
  • Chronic disease self-care

Question to Consider
  • How can you best phrase your teach-back questions?

NSO Case Study 2
  • Enlarging uterine Myoma
  • Uterine biopsy?then if benign?Uterine Artery
    Embolization (UAE)
  • NP?handwritten note?stop the Coumadin medication
    four days prior to her procedure
  • Patient was confused about her Coumadin dosing
    prior to UAE
  • After discharge, and before the patient could
    resume Coumadin the patient had an embolic stroke

Conclusion How to Prevent Successful Lawsuits
  • Buppert
  • Be careful about establishing patient-provider
    relationships. Giving medical advice??exercise
    caution and use reasonably ordinary care
  • Know the standard of care and practice within it
  • Follow your practice guidelines
  • If in doubt use the conservative approach
  • Rule out the worst diagnoses early on
  • Know the limits of training and expertise
  • Follow up

Conclusion Preventing Successful Lawsuits
  • Incorporate the comparative negligence doctrine
    in your daily routine. (50-51 rule)
  • You are speaking to the jury when you document.
    What is important that they should know about
    this patient?

Good Samaritan Law
  • What is your liability?

Good Samaritan
  • Purpose to protect individuals that assist a
    victim during a medical emergency

Good SamaritanWho is protected?
  • The law from each state protects different
  • A general layperson is protected under the Good
    Samaritan law as long as she/he has good
    intentions to aid the victim to the best of
    his/her ability during a medical emergency

Good SamaritanAre Nurse Practitioners Protected?
  • Under some Good Samaritan Laws, as long as the
    nurse practitioner is following normal
    established procedures (what an ordinary
    reasonable NP would do under similar
    circumstances) she/he too would be protected
  • Each state has specific guidelines!
  • See The Journal For Nurse Practitioners October,
  • See HeartSafe America website

Good SamaritanReceive nothing of value
  • Dr. John Stevens, a British psychiatrist was
    traveling by commercial airline from California
    to his home in London. During the flight,
    another passenger experienced a pulmonary
    embolism and Stevens came to his aid. At the
    conclusion of the flight, the airline presented
    him with a bottle of champagne and a 50 travel
    voucher as a token of appreciation

Good SamaritanReceive nothing of value
  • Thereafter, Stevens sent the airline a bill for
    his services, claiming the airline owed him for 4
    ½ times his hourly rate

Good SamaritanReceive nothing of value
  • What NPs can learn from this case
  • NPs and other rescuers should NEVER take
    compensation (something of value, no matter how
    nominal) for the care they render at a scene of
    an emergency
  • Good Samaritan laws were enacted to protect
    those who voluntarily assist

Professional Liability Insurance
  • See Certificate of Liability insurance

Liability Insurance
  • 2 types
  • Occurrence Coverage
  • 2. Claims Made

Liability InsuranceOccurrence
  • Get Occurrence which covers any incident that
    occurred while the NP was insured
  • Thus, affords coverage as long as it is in place
    when an incident that leads to a lawsuit
    occurs, regardless when the lawsuit was filed.
    (Statute of limitation is two years in most
    states, in which to file a claim. Children have
    until 24 months following their 18th birthday).
  • Choose a company in the US and has been in
    business at least 10 years

Liability InsuranceClaims-Made Coverage
  • NP is covered only when the insurance policy is
  • Thus, claims made policies provide coverage if
    the claim is made during the policy period
  • Example If you leave your employer and the
    patient files a claim 18 months later, you are
    not covered
  • When a claims-made policy terminates, so does the
    underlying coverage, unless a tail is purchased

  • THANK YOU !!
  • Questions?
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