Many trauma professionals believe that they can only be sued if they make a medical error and some harm occurs. Unfortunately, this is not entirely true. Yes, this is one obvious way to spark a suit or claim.

Unfortunately, it goes beyond that. Your patient may sue you if they even believe that they were harmed in some way, or think that something untoward happened while you were providing care. Here are the top 10 reasons for getting sued and my thoughts on each (in no particular order).

#1. “What we have here is a failure to communicate”

Your interpersonal skills are at least as important as your clinical skills! You may be a clinical prodigy, but if you are an asshole at the bedside, your patients will never appreciate your skills. You must be able to listen and empathize with your patient. Sit down, look at them eye to eye. Listen attentively. Don’t appear to be in a rush to get out of the room. You’d be surprised at how much more valuable information you will get and the relationship you create.

#2. “Work not documented is work not done”

This is my quote and it’s one of my favorites. Accurate, complete, timely, and legible documentation is a must! The legibility problem is fading with the widespread use of electronic health records (EHR, although this is creating new problems). Documentation, or lack thereof, will not get you sued. However, if you are involved in a suit or claim and your care is scrutinized, poor or missing documentation will make it impossible to plausibly contend that you did what you say you did.

It’s critical that you document every encounter thoroughly enough to be able to reconstruct what you were thinking and what you did. And providing a date and time is absolutely critical. This is especially important when the EHR timestamps everything you enter. Frequently, you will be documenting something somewhat after the fact. Always make sure that it’s not too far after the fact. Document as promptly as you can, and include the time that you were actually providing the service.

And never go back and try to “correct” your documentation, especially if the chart is being requested for inclusion in a suit or claim. If you believe there is an error, create an addendum and explain why the correction is necessary. If a suit or claim has been started, do not touch or open the chart without advice from your legal counsel.

Tune in for Part 2 in my next post!

Related posts:

• 10 things that will get trauma professionals sued: Part 1
• 10 things that will get trauma professionals sued: Part 2
• 10 things that will get trauma professionals sued: Part 3

What are common sources of malpractice complaints against nurses? The most common event is medication error. Most people worry about common errors like wrong dose, wrong drug, and wrong route of administration. But one less commonly considered drug-related responsibility is assessment for side effects and toxicity of medications administered.

Other common reasons include failure to adequately monitor and assess the patient, and failure to supervise a patient that results in harm. Significant changes in patient condition must be reported to the responsible physician. However, doing so does not necessarily get the nurse off the hook. If the physician’s response leads the nurse to believe that they have misdiagnosed the problem or are prescribing an incorrect drug or course of action, the nurse is obligated to follow the chain of command to notify a nursing supervisor or other physician of the event. 

And finally, one of the most common issues complicating malpractice cases of any kind is documentation. Lawsuits must typically be filed within two years of the event that caused harm. Once that occurs though, several more years may pass before significant action occurs. Collection and review of documentation, identification of experts, and collection of depositions takes time. And unfortunately, our memories are imperfect after many years go by. Good documentation is paramount! “Work not documented is work not done,” I always say. And poor documentation allows attorneys to make your good work look as bad as they want and need it to.

Reference: Examining Nursing Malpractice: A Defense Attorney’s Perspective. Critical Care Nursing 23(2):104-107, 2003.

Back in the old, old days, there was really no such thing as nursing malpractice. Nurses had little true responsibility, and liability largely fell to the treating physicians. But as nursing responsibilities have grown, they have become an integral part of the assessment, planning, and management of their patients.

As all trauma professionals know, our work is very complex. And unfortunately, our understanding of how the human body works and responds to injury is still incomplete. So unfortunately, undesirable things happen from time to time.

But does every little adverse event or complication mean that someone is at fault? Or that they can/should be sued? Fortunately, the answer is no.

The law is complex, at least to professionals outside the legal field. Following are the basics of malpractice as it relates to nurses.

There are four elements that must be present for a malpractice case to be brought forward:

1. The nurse must have established a nurse-patient relationship. Documentation provided by the nurse or other providers in the medical record must demonstrate that they were in some way involved in care of the patient.
2. A scope of duty must be established within the relationship. For example, an ICU nurse will have duties relating to examining the patient, recording vital signs, reporting significant events to physicians, etc. The exact duties may vary somewhat geographically and even between individual hospitals. Written policies help to clarify some of these duties, but often, experts are required to testify to what the usual standards of care are when not covered by policy.
3. There must be a departure from what is called “good and accepted practice.” The definition of this leaves a lot of wiggle room. It is defined as the care that an ordinarily prudent nurse would have provided in the given situation. It does not need to be the optimum or best care. And if there is more than one approved choice, a nurse is not negligent if they choose either of them, even if it later turns out to be a poorer choice. 
4. Finally, there must be a cause-effect relationship between the nurse’s action and the patient’s alleged injury. This linkage must be more than a possibility, it must be highly probable. For example, wound infections occur after a given percentage of operations, and it varies based on the wound classification. It’s a tough sell to bring suit for improper dressing care in a grossly contaminated wound that is likely to become infected anyway. Typically, expert witnesses must attest to the fact that the patient was, more likely than not, harmed by the nurse’s action or inaction.

Stay tuned tomorrow (Monday) for part 2!

Nearly two decades ago, the Emergency Nursing Association (ENA) resolved that family presence during resuscitation and invasive procedures was a patient right. They thought that it was beneficial both to the patient and their family members.

As you might imagine, this was hotly contested by emergency physicians and trauma surgeons for years. Shortly after the release of the resolution, a survey was sent to members of the American Association for the Surgery of Trauma (AAST, trauma surgeons) and the ENA (nurses). This survey was designed to gauge the attitudes and beliefs of their members with respect to family presence during trauma resuscitation.

Here are the factoids:

• The entire AAST membership (813) and a random 10% of the ENA membership (2988) were polled
• Response rate was 43% overall, not bad
• AAST members tended to be male, older, and had more trauma experience (duh!)
• 98% of AAST members thought that family presence was inappropriate, vs 80% of ENA members
• A similar proportion of members believed that family presence would interfere with patient care, increase stress on the trauma team, and increase malpractice risk
• All differences were statistically significant (sort of)

Bottom line: This was a weird study. If you look closely at the numbers, it appears that the same surgeons and nurses answered all the questions exactly the same way. The n for each question is virtually the same, plus or minus five respondents.  

And a lot has changed in the past 15 years. This study took place when the family presence concept was relatively new. Attitudes have changed considerably, and family presence, especially parents of children, is much more routine. 

There is still little data, but anecdotal experience would indicate that there is probably less likelihood of lawsuits when family is present. It is the ultimate good communication, and in cases resulting in death, the family member can see that the team is doing everything possible for their loved one. 

But remember, don’t just throw family members into your resuscitation room. Assign a nurse as a “medical interpreter” to explain what is going on, make sure they do not impede the team, and keep them from keeling over on the floor and getting hurt.

Reference: Family Presence during Trauma Resuscitation: A Survey of AAST and ENA Members. J Trauma 48(6):1015-1024, 2000.