Understanding Medical
Malpractice:
What the Nurse Practitioner Needs to Know
Robert D. Walker, JD, MSN, RN, FNP-BC
January 31, 2015
1
Disclaimer
This lecture does not, in any way, constitute
legal advice or the practice of law and is
not intended to replace legal counsel.
2
Establishing the “Need to Know”
• Knowledge is
empowering
• Move from “fearvictim” mode
-to“proactive-preventive”
mode
3
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
practitioner’s conduct falls below the
standard of care established to protect the
patient from an unreasonable risk of harm
4
Elements
1. Duty
2. Breach of Duty
3. Actual and proximate causation
4. Injury
5
DUTY
• To provide a standard
of care, that other
reasonably prudent
nurse practitioners, in
the same set of
circumstances, would
provide
6
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
7
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
8
ACTUAL AND PROXIMATE
CAUSATION
• The analysis of the actual causation element
involves the “but for” test
• But for the nurse practitioner’s action,
injury would not have occurred
• Foreseeability – the injuries were the result
of the nurse practitioner’s action and the
injuries were foreseeable before the injury
occurred
9
ACTUAL AND PROXIMATE
CAUSATION
A patient came to a medical office for a H+P. 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 NP’s 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
patient’s GI bleed and failure to diagnose the ulcer in order to order an
endoscopy earlier. The plaintiff failed to prove actual and proximate
causation.
10
HARM
• Injury must be proven
• By presentation of:
– Medical bills
– Expert testimony
– Direct evidence of pain
and suffering
11
Systematic Approach to Primary
Prevention of Malpractice
• Incorporate a review
of the elements of
medical malpractice
into each encounter
• Reflexive process of
thinking
12
“Hot Spots” for Negligence
“Rule out the worst diagnosis early on”
( C. Buppert 2010)
13
“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
14
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
15
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
Leukocytes:3+
16
Case Study
What would be a reasonably
prudent approach?
a.)
Send urine for C&S,
then treat with Cipro
500mg. BID x 7 days
b.)
Bactrim DS, one BID
x 3 days
c.)
Don’t treat and
inform her she must
see her PCP within 12
hours or if not
available go to the ER
for further treatment
17
“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
18
“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
Paget’s 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.
A.
What the NP can learn from this case?
Always follow up on symptoms from the past.
19
“Hot Spots for Negligence”
•
Q.
A.
A 35-year-old woman visited a primary care physician’s 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 patient’s 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.
What the NP can learn from this case?
Always perform a health-maintenance screen after every visit.
20
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?
21
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
22
NSO Case Study #1
breach of the duty of care
1. Failure to assess the patient
2. Failure to properly monitor the patient’s
vital signs and I+O’s
3. Failure to respond to signs of sepsis
4. Failure to communicate the the patient’s
physician and to direct patient to the ER
5. Note: 95 degree temp. in a 59 y.o.
23
DEFENSES
• Contributory negligence, assumption of the
risk, or comparative negligence
• Ohio and Pennsylvania are comparative
negligence states
24
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)
25
Defense Strategy
Comparative 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?
26
Defensive Strategy
Comparative Negligence
•
Mr. Jones is a 62yo male who has a history of
HTN, DM, A-Fib, COPD, and CABG.
1.
2.
3.
4.
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?
27
Defensive Strategy
Comparative Negligence
“Speak to the Jury” when you chart
In the medical record:
1. Quote Mr. Jones about his refusal to stop smoking.
Discuss that his decision can increase his risk for
morbidity and mortality
2. Discuss the risks associated with “forgetting” to take
his medication. Discuss ways to help him remember
3. Explain why the abdominal US is needed and the
risks of a delay in diagnosis and/or treatment
4. 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
5. Send a certified letter
28
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 patient’s
competency, affect, and attitude. For
example: “I have been to 12 doctors and no
one can help me”.
29
Documentation Tips
• Further, quoting the patient’s abuse or
threatening words will sufficiently
demonstrate their level of cooperation and
credibility, while removing any bias in your
interpretations
30
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”
31
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”.
32
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.
33
Special Consideration
 Check your facility’s test log daily.
 Call the lab to obtain the results. If the results are
not available, document in the patient’s EMR that
you attempted to obtain the results: “Spoke with
lab to obtain Mrs. C’s 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.
34
Patient Education
Can Reduce Malpractice
The Role of the Nurse
Practitioner
35
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
36
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
37
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
38
Teach-Back Method
• Used to confirm comprehension
• NOT a test of the patient’s knowledge – it
is a test of how well the concept was
explained to the patient
39
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”
40
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?”
41
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?
42
Asking for a Teach-Back
EXAMPLE:
“We’ve 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?”
43
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
44
Question to Consider
How can you best phrase your teach-back
questions?
45
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
46
Conclusion: How to Prevent
Successful Lawsuits
Buppert:
1. Be careful about establishing patient-provider
relationships. Giving medical advice?exercise
caution and use reasonably ordinary care
2. Know the standard of care and practice within it
3. Follow your practice guidelines
4. If in doubt use the conservative approach
5. Rule out the worst diagnoses early on
6. Know the limits of training and expertise
7. Follow up
47
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?
48
Good Samaritan Law
What is your
liability?
49
Good Samaritan
• Purpose: to protect individuals that assist a
victim during a medical emergency
50
Good Samaritan
Who 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
51
Good Samaritan
Are 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
52
Good Samaritan
Receive 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
53
Good Samaritan
Receive 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
54
Good Samaritan
Receive nothing of value
What NP’s can learn from this case:
• NP’s 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
55
Professional Liability Insurance
• See Certificate of Liability insurance
56
Liability Insurance
2 types:
1. Occurrence Coverage
2. Claims Made
57
Liability Insurance
Occurrence
• 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
58
Liability Insurance
Claims-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
59
THANK YOU !!
Questions?
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