Courts’ Perceptions of the Responsibilities of Nursing Practice

Courts’ Perceptions of the Responsibilities of Nursing Practice

Perlow, David

Long past are the days when nurses have fulfilled their responsibilities by simply carrying out the orders of the treating physician (Cavico & Cavico, 1995). Nurses are fully recognized as professionals who are responsible for independent nursing care, involving activities of daily living, health education, health promotion, and counseling. Nurses are additionally being held accountable for providing a “check” of physicians, other nurses and ancillary health care providers as an essential aspect of their practice (Cavico & Cavico, 1995). Courts have remained consistent in supporting this role for nurses with no rulings since the landmark cases discussed in this paper.

Three reasons exist for imposing these responsibilities on nurses. First, because of the nurses’ education and role in the delivery of health care, the nurse is in the best position to evaluate the entirety of care. While this does not mean that the nurse will be held to the expertise of a physician or other health care provider, the nurse will be required to use his/her best judgment in each situation using his/her own knowledge of past experiences, facility policy and national standards to evaluate care (Palmer, 1999).

The second rationale for insisting on these responsibilities from nurses is that nurses are held to specific professional standards. These standards are determined from documents such as the American Nurses Association (ANA) Standards of Practice (ANA, 2004) or the Kentucky Nurse Practice Act (Kentucky Board of Nursing, 2004). Because of such standards nurses are required to function as professionals with professional responsibility. While the nurse is not permitted to function outside his/her area of expertise, that nurse must not facilitate, permit nor carry out activities that are incorrect (Cavico & Cavico, 1995).

The third reason for requiring this responsibility is that the nurse is an employee of his/her particular health care facility. As an employee of a health care facility, that facility is liable for the conduct of its employees through the doctrine of respondent superior. Respondent superior in its simplest sense means that a principle (employer) is responsible for the actions of his/her agents (employees) in the course of employment (Bryan, 1990).

Nurses have, long understood the responsibility required of them in their practice. During the process of formal education, students are continuously reminded of their professional responsibilities. Nurses participate on institutional committees to provide standards for quality health care. Additionally state boards of nursing provide guidelines and regulatory function for nursing practice. Nurses are, however, not always as knowledgeable of the view of those outside of the nursing profession regarding their responsibilities. Of particular interest is the view of the legal community regarding the responsibilities of nursing practice. The purpose, then, of this article is to provide a discussion of findings from the legal community describing the expectations of nurses’ practice. Included are recommendations for nurses.

Case Reports

Nurses, rather than physicians, have been the subject of blame in recent cases. The following two cases are examples of court decisions. Two patients at a cancer research facility were given lethal doses of an intravenous chemotherapy drip because the physician’s orders were illegible and the pharmacist misread the order (Cavico & Cavico, 1995). Rather than the chemotherapy dose running continuously over a four-day period, the entire dose was given each day for four days. The court described one source of error, beside the physician’s liability, as a tradition that nurses and pharmacists do not question physician’s orders (Cavico & Cavico, 1995). The institute, quickly settled the wrongful death lawsuits and implemented changes in the hospital to ensure that this type of error would not occur in the future.

Five years later the state board of nursing charged eighteen of the nurses for failing to meet the standard of care during the incident. The rationale behind this decision was that one nurse hung the bag, another connected it to the patient, and others monitored the flow over the four-day period. The board set a precedent that it was each nurse’s job to double check the physician’s orders and evaluate the situation to make sure that nothing violated hospital policy and that nothing was outside the normal standard of care (Cavico & Cavico, 1995).

The second case involved a healthy one day old infant who died from a ten-fold increased dose of oil-based penicillin mistakenly given intravenously rather than intramuscularly. The physician was concerned that the mother tested positive for syphilis and in spite of the infant testing negative ordered Benzathine penicillin G given to the infant. Because Benzathine penicillin G was a non-formulary drug and the pharmacist was unfamiliar with the drug, the pharmacist prepared a ten-fold increased dose and labeled the medication to be given intramuscularly. Because the larger dose was judged to be painful, the nurses consulted a medication text and noted that another form of penicillin could be given for congenital syphilis and could be given intravenously. In giving the drug intravenously the nurses violated both the doctor’s and pharmacist’s orders. In spite of the fact that the physician ignored the infant’s negative serum analysis and the pharmacist had a ten-fold error, three nurses were indicted for criminally negligent homicide. The pharmacist’s error provided sufficient evidence of reasonable doubt that the nurses operated in a manner that deviated greatly from the standard of care. None of the nurses were convicted (Palmer, 1999, p. 1649).

Case Summaries

North Carolina courts have held that nurses “may disobey the instructions of a physician where those instructions are obviously wrong and will result in harm to the patient” (Armstrong, 1987, p. 586).” In addition to North Carolina, Pennsylvania, West Virginia, and Illinois have held that a hospital has a duty to report any activity that is not standard practice and ignore obviously negligent orders (Kearney & McCord, 1992). Kentucky courts have ruled on this issue holding that, “the defense that the hospital’s nurses were only following a chain of command by doing what was ordered is not persuasive” (NKC Hosp. Inc. v. Anthony. 1993, p. 568). In certain situations following orders could be deemed malpractice. Courts have long held that at the least if a nurse does not understand an order, the nurse must ask the physician to reevaluate the order. Confirming an order is not sufficient if that order is contrary to the better judgment of the nurse. The nurse is not permitted to abandon his/her judgment even if the physician promises to take liability (Cavico & Cavico, 1995).

According to contemporary law the nurse is a representative of the health care institution, not of the physician. Physicians are independent contractors using healthcare facilities. The nurse is ultimately responsible to the employing health care facility and of course to the patient. Case law has required that the nurse exercise his/her independent professional judgment and intelligence, investigate and inspect for potential dangers, perform a competent nursing assessment of the patient’s condition, evaluate the appropriateness and reasonableness of a physician’s order, and evaluate the order’s potential for causing harm to the patient (Cavico & Cavico, 1995).

Recommendations

Institutions should develop and have policies in place that address the process to follow when disagreement occurs between nurses, physicians, and other health care providers. Should the nurse be placed in the situation of a disagreement, that nurse should document every word, tone of voice, and all surrounding emotions so that the nurse might be protected. Most importantly, education of all health care providers should include topics on patient safety and the responsibility of all health care providers in assuring that safety. Education should also be provided in communication and assertiveness training if needed to assure that the nurse will have the tools necessary to provide the expected check for patient safety. Finally all health care providers need to be informed that the courts view the nurse as the healthcare provider responsible to check the actions of all other providers.

Nurses now have more responsibility than ever. This increased responsibility is one of the reasons for national and state standards which are applied by the court in all inquiries into malpractice. Each nurse is held accountable for his/her actions and is required to monitor the actions of other health care providers. Instructions to deviate from the prescribed standards of care are usually inappropriate and not sufficient as a defense. The belief that nurses should act not only as a check on other nurses, but also on the physicians and all healthcare providers is a reality. This responsibility elevates the nurse into the role of “ultimate caretakers of patients and protectors of patient safety” (Palmer, 1999 p. 1633).

References

Armstrong, e.J. (1987). Nurse malpractice in North Carolina: The standard of care. North Carolina Law Review. 65, 579-599.

Bryan, G. (Ed.) (1990). Black’s Law Dictionary (6th Ed.). St. Paul, MN: West Publishing Company.

Cavico, F. & Cavico, N. (1995). The nursing profession in the 1990’s: Negligence and malpractice liability. Cleveland State Law Review. 43. 557-626.

Kearney, K., & McCord, E. (1992). Hospital management faces new liabilities. Health Lawyer. 6. 1-8.

Kentucky Board of Nursing. (2004). Kentucky Nursing Laws. [Brochure]. Louisville, KY: Author.

NKC Hospital Incorporated v. Anthony, 849, SW2d 564 568 (Ky. Ct. App. 1993).

Nursing: Scope and Standards of Practice. (2004). Washington, DC: American Nurses Association.

Palmer, L. (1999). Patient safety, risk reduction, and the law. Houston Law Review. 36. 1609-1665.

David Perlow, BA

Michigan State University College of Law

Michael Perlow, DNS, RN

Murray State University

Murray, KY

Copyright Kentucky Nurses Association Oct-Dec 2005

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