Malpractice Claims Naming Staff Nurses as the Primary Responsible Service
by Christopher Rhodes, Allesandra Tyler, Kelly Gleason Spring 2019
Acknowledgments: The authors thank CRICO/Risk Management Foundation of the Harvard Medical Institutions.
Registered nurses have more autonomy and professional accountability than ever before. With this role expansion, staff nurses, nursing faculty, and nursing administrators must be cognizant of the fact that nurses are now more exposed to civil malpractice claims than at any other time in the history of nursing. The purpose of this study is to identify the most common contributing factors of malpractice claims naming staff nurses, the level of harm associated with these factors, and the financial expense that results. We specifically look at claims related to monitoring. Awareness of claims naming nurses will allow for tailored nursing education and training to improve care, while reducing the number of adverse events and malpractice cases naming staff nurses.
1 Buerhaus, Auerbach, & Staiger, 2016).
2 Stewart, Carman, Spegman, & Sabol, (2014).
4 Lovett, Illg, & Sweeney, (2014).
6 211 N.E.2d 253, Ill. (1965).
8 Kinkela & Kinkela, (1969).
10 Brous, (2015).
13 Brous, (2015).
14 Schwartz, Kelly, & Partlett, (2015).
The roles and expectations of registered nurses are expanding as more nurses receive advanced degrees in nursing1. Registered nurses who practice in an inpatient setting (e.g., intensive care units, acute care floors), and an emergency department setting are monitoring increasingly complex critical physiological data2, managing sophisticated lifesaving equipment3, and organizing the delivery of countless patient services4. As a result, registered nurses have more autonomy and professional accountability than ever before. With this role expansion, staff nurses, nursing faculty, and nursing administrators must be cognizant of the fact that nurses are now more exposed to civil malpractice claims than at any other time in the history of nursing.
Several articles have reported on diagnosis-related malpractice claims5, all of which report malpractice claims naming physicians, physician assistants, nurse practitioners, nurse midwives, or certified registered nurse anesthetists. Limited medicolegal data is available on monitoring-related cases that name staff nurses as the primary responsible service in malpractice cases. The purpose of this paper is to identify the most common contributing factors of malpractice claims naming staff nurses, the level of harm associated with these factors, and the financial expense that results.
We conducted a retrospective analysis of the Controlled Risk Insurance Company (CRICO) Strategies’ repository of malpractice claims, which includes approximately 30% of all malpractice claims made in the United States. This review, which included monitoring claims made between 2007 and 2016, determined that nursing was named as the primary responsible service in 907 closed monitoring-related cases.
A team of registered nurses, trained as taxonomy specialists, coded all cases in the CRICO repository of malpractice claims. The coding process includes assigning contributing factors to the cases and the level of severity was rated according to the National Association of Insurance Commissioners Severity Scale (Table 1). The coding process includes systematic auditing by a governance committee consisting of physicians, attorneys, and other risk management specialists.
We conducted ordinal logistic regression using the level of patient harm, death or no death, and indemnity greater than or equal to $500,000, each as dependent variables in separate models and contributing factors as the independent variables.
Table 1. Severity rating of the outcome derived from the National Association of Insurance Commissioners
This review determined that nursing was named as the primary responsible service in 907 closed monitoring-related cases. The median age range for all claimants was between 60 and 69 years of age and 54.8% of all claimants were female. Most adverse events occurred in the inpatient setting (90.1%), while the remaining events occurred in the ambulatory setting (5.73%) or the emergency department (3.53%). The location of the event was not known in six claims (0.66%). The most common contributing factor, by far, was patient monitoring (n=751; 82.8%), followed by insufficient documentation (n=349; 38.48%). Higher odds of death were significantly associated with communication among providers (OR: 2.27, 95% CI: 1.60, 3.21), inadequate staffing (OR: 2.80, 95% CI: 1.05, 7.42), clinical environment busyness (OR: 7.5, 95% CI: 2.47, 22.80), working weekend, nightshift, or holiday (OR: 2.42, 95% CI: 1.53, 3.83), and supervision (OR: 1.88, 95% CI: 1.00, 3.53). The results of the analysis exploring the association of contributing factor by severity level are detailed in table 2.
Table 2. Association of Contributing Factors to the Severity Level of Malpractice Claim
Higher indemnity (greater than or equal to $500,000) incurred was significantly associated with training and education (OR 1.74, 95% CI: 1.03, 2.95), failure to follow policy (OR 2.97, 95% CI: 2.14, 4.13), insufficient documentation (OR: 3.01, 95% CI: 2.21, 4.11), and altered or inconsistent documentation (OR 2.14, 95% CI: 1.50, 3.04).
Here, we describe a case from one of the malpractice claims included in the analysis in which communication among providers and insufficient documentation were identified as contributing factors:
Patient admitted for work-up by Hospitalist. Initial electrocardiogram showed sinus rhythm & left ventricular hypertrophy. Labs negative for acute cardiac event. Computerized Tomography (CT) scan negative for pulmonary embolism, aneurysm, dissection, or acute abdominal process. Noted extensive atherosclerotic vascular disease.
05:00 Patient developed sinus tachycardia with pulse 130. Q waves noted on electrocardiogram. Hospitalist called Cardiology for consult.
09:00 Registered Nurse (RN) called Hospitalist to report patient had pulse 46, blood pressure 54/37, was unresponsive. Provider orders saline bolus (did not come to evaluate patient), told RN to call Cardiology, who prescribed another bolus and medication.
10:00 Pulse stabilized, blood pressure improved, patient more responsive.
11:25 Right facial droop & Right side weakness noted. RN called Hospitalist, who ordered a rapid stroke protocol and transfer to Intensive Care Unit (ICU).
12:40 Head Computerized Tomography (CT) negative.
13:00 Hospitalist called Neurology, who was not member of stroke team, but would see patient in evening. (Stroke Team did not have a neurologist.)
13:40 Hospitalist called Neurology, again, who did video assessment of patient. Patient not tissue plasminogen activator (tPA) candidate due to age and time since symptoms began.
14:07 Head CT suspicious for left middle cerebral artery occlusion and infarct.
15:00 Interventional Radiology (IR) was called. IR documented family said patient had stroke symptoms since 06:00. 16:30 Neurosurgery confirmed stroke diagnosis. IR did thrombectomy.
21:23 Patient's condition worsened. Pulmonary managed ventilator and intubated. Patient was unresponsive.
Case notes included: Hospitalist met standard of care and was very responsive to RN calls. Appropriate for Neurology to advise Hospitalist to call stroke team. Pulmonary not involved until after patient’s condition severely deteriorated. Critical of RNs, who should have called stroke team/rapid response team on their own. Nursing notes meager.
The dual responsibilities of professional nursing to monitor physiologic status and communicate effectively to providers and allied health professions to assure safe, competent care are the foundation of professional nursing practice. The findings of this study, identifying catastrophic lapses in these important, highly intertwined responsibilities, echo one of the most important legal cases in nursing, Darling v. Charleston Community Hospital6. This and other cases that defined nursing’s responsibility for professional judgment and accountability have formed the backbone of professional nursing education for nearly six decades. In Darling, a young man fractured his lower leg, in 1960, and required a cast. For nearly two weeks, nurses observed and documented deterioration of the lower leg (severe pain, foot blisters, edema, cyanosis, and foul odor), but believed their responsibility for care stopped at this:simply documenting, reporting, and continuing to follow medical orders7. The patient, Darling, transferred to another hospital, underwent an amputation, and filed a lawsuit. The Illinois Court ultimately held that the nurses were responsible for promptly recognizing that there was a critical physiological impairment in the patient and that they had a duty to exercise independent judgment and report the substandard medical treatment to higher medical and administrative authorities. Landmark court cases have similarly found nurses negligent when they followed physician orders instead of formulating an independent judgment8. The cases show nurses are expected to exercise independent judgment and communicate, effectively, to ensure safe, competent medical care9.
As nurses gain greater expertise and greater responsibility for patient care, plaintiffs’ attorneys are recognizing their increasing role and, more frequently, holding nurses liable in malpractice lawsuits. This practice will not drastically change malpractice law, but it will have implications for how the law is applied and for malpractice insurance. This information should also be reflected in the training of nurses. Communication in healthcare is increasingly taking place over digital platforms. The standard of how we educate nurses to communicate concerns to providers may need to be updated to reflect that it may be taking place over text pages with a character limit, for example.
Malpractice cases are made by providing evidence for four elements: duty, breach, causation, and harm10. Duty is typically referred to a standard of care, an objective standard looking at the knowledge, training, and skill of an ordinary member of the profession11. The standard of care in medical malpractice cases is specialization-specific, considers the circumstances under which a healthcare provider is acting, and is increasingly a national standard, as most courts have modified or rejected the locality rule, which held providers only to the standard in their geographic locality12. This is where a change in the application of the law will apply. Rather than analyzing the standard of care for a doctor, attorneys building a medical malpractice case against a nurse will look at the knowledge, training, and skill of the ordinary registered nurse in the same area of practice. Nurses may also, increasingly, be held to a national standard of care, as they more regularly receive advanced degrees at nationally-accredited universities. Once duty is established, the plaintiff must provide evidence that the nurse, in question, breached the accepted standards of practice. Next, evidence must be provided that this deviation from the standard of care is what caused the injury. The final element is to determine that the injury caused economic and/or noneconomic harm, such as pain and suffering13.
Most often, an attorney will provide evidence for these four elements with testimony from expert witnesses. An expert witness may be an experienced nurse with the education, experience, and expertise in the same area of practice. The expert must testify to establish duty, or the standard of care, specifically identifying the usual practice and what a reasonably prudent nurse would do in the same or similar circumstance. To establish a breach in duty, the expert must identify that the nurse acted in a way that a reasonable nurse would not in the same or similar situation. To establish causation, the witness must testify that the deviation in duty is the proximate contributing cause of the injury.
As nurses, more frequently, become targets of malpractice suits, they will likely need to invest in medical malpractice insurance beyond what healthcare employers may provide. In the past, an increase in medical malpractice claims against doctors increased the premiums for malpractice liability insurance. These increased premiums and the unavailability of malpractice insurance for some doctors led to changes in state statutory law that capped damages, changed the standard of care, and altered the statute of limitations14. Not all of these changes were ultimately upheld, but many of them remain in place. It remains to be seen if an increasing demand on the part of nurses for malpractice insurance could have any similar effects.
As nurses gain greater responsibility and autonomy in patient care, they also gain greater legal exposure and increased risk of being named in a malpractice lawsuit. For this reason, awareness of legal cases that name nurses is essential in nursing education and training. Teaching and studying these cases will educate future nurses about their new roles and expectations and will improve nursing quality and patient safety. As a result, it will hopefully reduce the number of preventable adverse events and of malpractice cases naming staff nurses.
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3 Boling, Dennis, Tribble, Rajagopalan, & Hoopes, (2016).
5 Brock, Nicholson, & Hooker, (2017); Jordan, (2015); Lovett et al., (2014); Mccool, Guidera, Griffinger, & Sacan, (2015); Saber Tehrani et al., (2013).
7 Langslow, (1981).
9 Kinkela & Kinkela, (1969).
11 Schwartz, Kelly, & Partlett, (2015).
12 Speiser, Krause, Gans, (2019).
The editorial staff of The Law Review at Johns Hopkins does not endorse the opinions expressed in individually published articles.