Anyone Can Be Sued

A reassuring statement according to (Joel, 2013, p. 507), is the fact that for all categories of advanced practice nurses which includes nurse anesthetists, nurse-midwives, nurse practitioners and clinical nurse specialists the number of reported malpractice suits and settlements are low in comparison to those of physicians.  Also according to the National Practitioner Data Bank summary table, there are certain states such as Indiana for example, that have a very low incidence of reported malpractice cases involving advance practice nurses (Joel, 2013, p. 501-506).

This could be due to the positive relationships that advance practice nurses develop with their patients.  This is stated as one of the primary reasons why patients decide not to sue a health care provider (Joel, 2013, p. 517).  Inherent to the discipline of nursing is the ability to care for patients as only a nurse can.  Treating all patients with dignity and respect that allows for individuality is a requirement and a basic need of all.  The patient is in a vulnerable position affected now by illness where feelings of resentment or mistreatment can easily surface.  Taking the time to get to know the patient can both foster a healthy relationship between practitioner and patient and help prevent errors and the possibility of a law suit (Joel, 2013, p. 517).

Another reason for this reportedly low incidence of suits involving the advance practice nurse could be communication skills.  Communication skills can be considered to be as important as clinical skills.  An open dialogue in a one on one manner is most appropriate. Accessibility of the advance practice nurse to the patient via phone or email can help prevent misunderstandings.  Expectations of the family and patient should be explored concerning treatment and possible outcomes.  This combined with educational materials appropriate to the level of the patient and family, can provide a realistic expectation of treatment and care and help to avoid the feeling of mistreatment that could generate the need for retaliation via lawsuit (Joel, 2013, p. 517).

Though the patient relationship is a critical one, a recommendation not to cultivate a health care provider association with one’s own personal family members, friends, or colleagues is another way an advance practice nurse can avoid litigation (Joel, 2013, p. 516).  It can place an undue burden on the advance practice nurse provider and may influence judgment and practice.

The advance practice nurse who does all possible to avoid problems can still be sued.  The statement that there is little to stop a patient from bringing a malpractice lawsuit regardless of the ultimate merits of the allegations against the practitioner is an ominous one (Joel, 2013, p. 500).  The thinking of the past concerning the legal protection of the nurse being taken care of by the hospital of employment no longer holds true.  Hospitals will protect themselves first and may not vigorously defend their employees.  If an individual health care provider is sued and found guilty there is the possibility of financial ruin especially if a settlement is reached.  Purchasing malpractice insurance is a potential shield (Joel, 2013, p. 497),

Malpractice is considered to be a type of professional negligence that results when the practitioner fails by act or omission to exercise the degree of skill and learning expected of a reasonably prudent, reputable member of the advance practice nurse profession (Black, 1979).  It can include the failure to follow up, failure to refer when necessary, failure to disclose essential information, and failure to give necessary care (Buppert, 2008).   The completion of certification requirements of both state law and national certification through nursing education contact hours is an example of expected learning.  Documentation should also be made available if audited by state boards of nursing or national certification bodies (Joel, 2013, p. 518-519).

Areas of practice in which lawsuits are more prevalent are in the specialties of anesthesia, obstetrics, pediatrics and neonatology.  Why suits are filed in some instances and not others even though errors have been made remains a mystery (Joel, 2013, p. 506-507).

The prudent advance practice nurse should try to avoid financial exposure in terms of judgments or settlements from a civil lawsuit, licensure or certification actions by the relevant state agencies or private associations, and civil or criminal sanctions and exclusion from participation in the federal health-care programs for fraud or abuse (Joel, 2013, p. 498-499).

Maintaining current clinical skills and knowledge by communicating clearly with patients regarding treatment options and ensuring informed consent, documenting clear supportable reasons for taking or not taking diagnostic and therapeutic actions as well as recording the patients response to interventions, recognizing the timely need for consultation and referral, nurturing the optimal professional and business relationships that are a part of advance practice nursing and knowing and abiding by state and federal laws governing practice, serve as goals and protective practices for the role of the advance practice nurse (Joel, 2013, p. 497).

The proactive advance practice nurse should practice within established standards of care, be sensitive to the limits of education, expertise, and scope of practice;  consult with and refer to other providers as early and often as necessary, especially if the history and examinations suggest a deadly condition and it hasn’t been ruled out or treated;  carefully document so that clinical choices are clear and justifiable; find another work setting if the current one is not permitting safe practice;  and purchase an individual occurrence malpractice insurance policy (Joel, 2013, p. 516).

Ultimately, malpractice insurance is necessary for the advance practice nurse and should be paid for by the advance practice nurse.

References

  • Black, H. (Ed.).  (1979).  Black’s law dictionary. (7th edition).  St. Paul, MN;  West.
  • Buppert, C. (2008).  Nurse practitioner’s business practice and legal guide (3rd edition).  Sudbury, MA:  Jones & Bartlet.
  • Joel, L. (2013).  Advanced practice nursing:  Essentials for role development. (3rd edition).  Philadelphia, PA.:  F.A.  Davis Company.’