Question

A PowerPoint presentation no more than 15 slides in length that addresses the following:

Identify and explain any legal implications that exist for failure to adhere to a standard of care

Identify and explain the key elements of malpractice

Compare the differences in malpractice policy options

Answer 1

Identify and explain any legal implications that exist for failure to adhere to a standard of care

Standards of care or standards of practice in nursing are general guidelines that provide a foundation as to how a nurse should act and what he or she should and should not do in his or her professional capacity. Deviating from this standard can result in certain legal implications.

If a nurse does not meet the accepted standards of practice, he or she may be found negligent if his or her negligence caused a patient harm. In most litigation, a nurse is accused of violating a standard of care in a negligence lawsuit. In the medical profession, this is often referred to as malpractice.

Malpractice is negligence, misconduct, or breach of duty by a professional that results in injury/damage to a patient. Common malpractice claims arise against nurses when nurses fail to:

• Assess and monitor.
• Follow standards of care.
• Use equipment in a responsible manner.
• Communicate.
• Document.
• Act as a patient advocate and follow the chain of command.

Nurses may be held liable in malpractice cases if they inappropriately administer medication, fail to monitor equipment, fail to warn patients about known harms or fail to protect patients from known dangers. Nurses are required to completely and accurately report the assessment and observations that they make regarding each patient in a timely manner. If they do not monitor the patient’s condition or be alerted to changes in the patient’s condition, they may be found negligent. Nurses have a duty to communicate changes to the attending doctor to avoid harm to the patient. Additionally, not complying with state rules regulating the nursing practice regarding the delegation of certain tasks to unlicensed individuals or mishandling patient identification can also cause legal liability to arise.

Elements of malpractice

To prove malpractice, all 4 of the following elements must be proven by the plaintiff: the nurse had a duty to the patient, the nurse breached the duty, a patient injury occurred, and there was a causal relationship between the breach of duty and the patient injury .

Therefore, in determining if malpractice has occurred, these 4 elements must be carefully considered. First, did the nurse have a duty to the patient? This means that the nurse was actively engaged in providing nursing care to the patient. Second, was there a breach of that duty? In other words, did the nurse commit an act or omission in the act of taking care of the patient and did that act or omission result in harm to the patient?

The third element is “proximate cause.” The question here is whether the action or omission caused any harm to the patient. If the action did not result in harm or injury, there was no malpractice. Finally, the fourth element is damage. What harm occurred as a result of the action of omission during the delivery of nursing care? A nurse might have a duty to a patient and commit an action or omission during the course of nursing care, and it might not constitute malpractice if the action or omission did not result in harm to the patient.

In the following case, examples of malpractice related to wound care are presented. An 80-year-old patient was admitted to a nursing unit, and a wound was identified on her right heel. Although care was provided for the wound on her heel, the nurse failed to complete a head-to-toe skin assessment and assess the patient's risk for pressure ulcer development. As a result, a large pressure ulcer developed on the sacrum. When this wound was finally identified, it was a stage IV pressure ulcer and took several months of additional treatment for healing, including nursing home care.

An analysis of the case would be as follows: Did the nurse have a duty? Yes. She was actively engaged in delivering nursing care to the patient. Did the nurse breach the duty? Yes. The nurse failed to completely assess the patient and, as a result, a sacral ulcer developed. Was the nurse's failure to completely assess the patient a cause of harm to the patient? Yes. At admission, the patient did not have skin breakdown on the sacrum. The wound was discovered upon transfer to another facility.

Finally, was there damage? Yes. A wound developed on the sacrum, and damage included the economic costs for additional hospital and nursing home care, a decline in mobility, and emotional distress.

In fact, this was an actual case that resulted in a settlement. The key point is to protect your patients and yourself by implementing the complete nursing process and thorough documentation.

Malpractice policy options

Medical malpractice insurance is a critical part of practicing medicine, making it essential for physicians beginning their practices to have an understanding of the types of malpractice policies available. The two primary categories are occurrence coverage and claims-made coverage.

Occurrence Policies provide coverage for insured events occurring during the policy period, regardless of the length of time that passes before the insurance company is notified of the claim. This is generally considered the broadest form of coverage. It is also usually the riskiest for the insurer and the most expensive for the policyholder. In fact, occurrence policies often are not offered for medical malpractice policies because claims may be reported years after the underlying policy has expired. Particularly in the years just after the policy period, it is difficult for insurers to estimate the eventual number and cost of those claims.

Claims-Made Policies provide coverage for insured events occurring on or after the specified policy’s retroactive date; when the insured events are reported during the policy period. If the retroactive date is the beginning of the policy period, the policy is relatively inexpensive and is called “first-year” claims-made. However, as the number of years from the retroactive date increases, the policy “matures,” and the premiums increase each year using “step factors” until reaching the mature level, which is about five to eight years after the policy’s retroactive date. Once the mature level is reached, the premium approaches the occurrence premium. Claims made policies are the most widely available form of medical malpractice coverage today.

Claims-made coverage can vary between insurance carriers, depending primarily on the definition of a reported claim. Frequently used coverage triggers generally range from including notice of potential claims to restricting coverage to only those initiated by a third party with a demand for money. This difference in coverage triggers can create a gap in coverage when an insured moves from one carrier to another.

To illustrate the differences among the various policies, consider, as an example, a medical accident that happened on July 1, 2002. The treating physician became aware that there was a possible claim on July 1, 2004, and notified the insurer then, but a lawsuit was not filed until July 1, 2008. This claim would be covered by:

1. An occurrence policy covering 2002—even though the insurer would not be aware of the claim until at least 2004, and possibly not until 2008 or later; or
2. A claims-made policy covering 2004, provided the policy covers potential claim notices and provided the policy’s retroactive date is no later than July 1, 2002; or
3. A claims-made policy covering 2008, provided that the policy defines claims as those initiated by a third party with a demand for money, and provided that the policy’s retroactive date is no later than July 1, 2002.

At the expiration of an insured’s final claims-made policy, it is necessary to obtain coverage for any latent, as-yet unreported claims that may exist as a result of past medical incidents. This coverage closes the gap between claims-made and occurrence coverage. In many cases, these claims can be covered by purchasing Extended Reporting Period (ERP or Tail) Coverage from the insurer at the time of policy expiration. If the insured will continue practicing and is only changing insurers, it might also be possible to obtain Prior Acts (Nose) Coverage from a subsequent insurer. For policies issued to individual providers such as physicians or dentists, if the coverage terminates due to death, disability, or qualified retirement, ERP coverage is typically issued by the expiring insurer at no additional charge. Modified Occurrence Policies combine aspects of claims-made and occurrence policies. Coverage is provided on a claims-made basis with an included ERP. The ERP generally applies for a limited time after expiration of the last policy issued. This is typically a period of seven years. At the end of the included ERP, the insured may then be given the option of buying an unlimited ERP.