Understanding Medical Malpractice: What the Nurse Practitioner Needs to Know

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Understanding Medical MalpracticeWhat the
Nurse Practitioner Needs to Know

• Robert D. Walker, JD, MSN, RN, FNP-BC
• January 31, 2015

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Disclaimer

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

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Establishing the Need to Know

• Knowledge is empowering
• Move from fear-victim mode
• -to-
• proactive-preventive mode

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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

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Elements

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

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DUTY

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

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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

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BREACH OF DUTY

• 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

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ACTUAL AND PROXIMATE CAUSATION

• 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

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ACTUAL AND PROXIMATE CAUSATION

• 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.

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HARM

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

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Systematic Approach to Primary Prevention of
Malpractice

• Incorporate a review of the elements of medical
  malpractice into each encounter
• Reflexive process of thinking

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Hot Spots for Negligence

• Rule out the worst diagnosis early on
• ( C. Buppert 2010)

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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

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COMMUNICATION CONSIDERATIONS

• 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

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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

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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

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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

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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.

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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. 

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CONSIDERATIONS

• 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?

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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

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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.

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DEFENSES

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

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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)

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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
  strategy?

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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?

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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
  remember
• 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

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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.

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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

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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

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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.

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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.

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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
  pending.
• If other NPs after you fail to obtain the results
  in a timely manner, the chart will reflect that
  you were still diligent.

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Patient EducationCan Reduce Malpractice

• The Role of the Nurse Practitioner

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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

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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

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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

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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
  patient

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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

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Asking for a Teach-Back

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

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Asking for A Teach-Back

• EXAMPLE
• 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?

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Asking for a Teach-Back

• EXAMPLE
• 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?

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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

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Question to Consider

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

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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

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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

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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?

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Good Samaritan Law

• What is your liability?

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Good Samaritan

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

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Good SamaritanWho is protected?

• The law from each state protects different
  individuals
• 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

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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,
  2012
• See HeartSafe America website

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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

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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

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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

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Professional Liability Insurance

• See Certificate of Liability insurance

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Liability Insurance

• 2 types
• Occurrence Coverage
• 2. Claims Made

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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

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Liability InsuranceClaims-Made Coverage

• NP is covered only when the insurance policy is
  active
• 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

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• THANK YOU !!
• Questions?