Risk Management Tips 2005-2006

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Legal Tip of the Month 2006

October 2006
Dressing for Court Appearance/Deposition Constance Watkins RN

Giving a deposition or having to appear in court is serious and makes most people very nervous. What you wear reflects who you are so dress neatly and nicely. It is unfortunate, but people judge others by the clothes they wear, so you must dress like the "good guy".

The following are a few ways to make a good impression:

•	Dress neatly as if you are going on a job interview, but making sure that your clothing is comfortable; avoid constantly adjusting your clothes.
•	No strips-it reminds jurors of prison attire. Blue is always a good color choice as it is the color of truth.
•	Do not wear tank tops, mini-skirts, or any other clothing that is too revealing. You can be removed from the courtroom if your clothing is considered too casual.
•	Wear little or no makeup, cologne, or aftershave. A nice dress, blouse and skirt, or suit is fine for a woman. For men, A suit, jacket, and tie are appropriate.
•	Avoid excessive jewelry and cover tattoos if you have any.

Remember to arrive on time for your deposition or court appearance, be quiet, turn off your cell phone, and do not chew gum. Always be polite and answer yes "Sir" or Ma'am" and address the judge as "Your Honor".

Last but not least, always tell the truth.

September 2006
Incident Review
Rene Jackson RN

The process for incident review usually involves event reporting. Ultimately a constructive incident reporting system will;

•	Achieve a better understanding of a facility's problems related to the health and safety of patients
•	Ensure quality performance in the facility, which is an ongoing process

Incident reports should be filed in a timely manner, sot hat investigation of the incident may begin promptly. Because of possible reprisals, staff understandably may be reluctant to report incidents involving patient care.To achieve the best results for all concerned, a collaborative approach should be used. When the error is identified and the correction process begins, it promotes important opportunities to prevent duplication of the error. An interdisciplinary, no blame approach fosters process thinking and problem solving to correct systems errors.Incident reporting should not be looked on as an exercise in futility. Staff sometimes believe that it is only extra paperwork, and that managers do not act on reports. It is important for the risk manager to educate staff and reinforce that all incident reports are followed up on. Forward-thinking administrators use a non-punitive approach to occurrence reporting, and foster a positive environment for improving patient safety.

Documenting is an integral part of the reporting process and only facts should be written. To facilitate appropriate follow- up interventions, the report should be;

•	Clear
•	Concise
•	Comprehensive
•	Legible

It is the task of the administrative staff to set a fair tone toward direct-care workers. Nursing plays a key role in reducing health care errors by sharing perspectives. their clinical and organizational expertise allows nurses to identify systems-related errors and helps to correct those failures.

August 2006
HIPAA: What Nurses Should Know

Constance Watkins RN

The Health Insurance Portability and Accountability Act better know as HIPAA provides protection for the privacy and security of the patient's health information and dictates how medical claims and other transactions are submitted. Of special concern to nurses are security, privacy, individual rights, and transactions standards.

Nurses have been trained to treat their patient's information with privacy and security, but what about the other employees who work with these patients? Are they vigilant in ensuring patient's rights? The following are changes that can be easily incorporated:

•	Short screen save times and screen saver passwords
•	Ensure that employees are not sharing computer IDs
•	Issuing temporary passwords to agency staff and technical personnel
•	Turn patients charts face down to prevent patient names from being viewed
•	Delegating patient computer information screens only to licensed personnel
•	Do not discuss your patient's health information unless it pertains to his/her treatment plan

Individuals now have more control over their personal health information and are allowed to demand names of persons to who health information has been disclosed. HIPAA allows individuals the right to access and receive copies of their protected health information and the right to request restriction on protected health information. For example; a patient may request that the word anorexia not be used in his/her record. The physician then has a designated amount of time to reply with the rationale for his decision.

Compliance is mandatory. Civil and criminal penalties exist for failure to comply with HIPAA standards. Professional nursing practice has always emphasized the confidentiality of the patient/provider relationship, so the new HIPAA standards should not mean a significant change in nursing practice.For more information see: www.hhs.gov/ocr/hipaa

June/July 2006
"If it wasn't charted....."

Rene' Jackson RN BSN MS

Despite all the talk, articles, and books about charting, it never ceases to amaze me how poorly nurses chart. Regardless of how busy the staff nurse may be, it is an extremely important part of your work day. Not charting thoroughly could get you into trouble.

Although most nurses know "If it wasn't charted, it wasn't done". not all nurses practice that way. Sure, you see your patients consistently throughout your shift, but it can't be proven if you don't chart that you did so. One of the first things attorneys look at in a medical malpractice case is the patient's chart. If the lawsuit involves the nurse as a defendant, the plaintiff attorney is going to zero in on the nurse's notes. For example, you have a patient previously on PlavixÆ you are recovering from a liver biopsy. The patients' baseline blood pressure is 168/80. During the biopsy the B/P remains stable, as it does immediately post-procedure. In the post-procedure care unit, where you should be monitoring vital signs per policy (every 15 minutes times four, 30 minutes times two, one hour until stable), you get busy with another post-procedure patient. An hour later, the patient is restless, complaining of pain in the abdomen, and the B/P is dropping. The patient codes and ultimately dies weeks later of multi-system failure.When a plaintiff attorney is considering whether or not to proceed with a medical malpractice case, he finds several things missing or confusing in the chart: on an initial assessment sheet it is unclear when the patient last took PlavixÆ. The manufacturer's recommendations is to discontinue the drug five days before a surgical procedure. In addition, on the post-care nurse's notes several vital signs are missing in that first hour of observation. Has the nurse practiced within the standard of care?Of course, there are other things to consider in this case, including the physician's involvement. But the nurse's lack of charting will play a big role in whether a jury believes the standard of care was met in monitoring that patient after the procedure, or even if the procedure should have been performed in the first place because no one knows when the patient last took her PlavixÆ.

March 2006

Documentation Guidelines

Shelley Cohen RN BS CEN

Knowing how to document, what to document and when to document may seem like the basics of Nursing. However, even our basic skills require refreshing and updating. Don't let a focus on new technologies and clinical tasks keep you from assessing your documentation skills.A wonderful resource for this is:Mosby's Surefire Documentation. How, what, and When Nurses Need To Document. Mosby, Inc., 2006. This book can be purchased through Elsevier at; www.elsevier.com

Please join me in welcoming

Conswella M. Byrd, RN, JD, ESq.

Attorney Byrd will be provided the Legal Tips of The Month

from July 2005 through January 2006. She is the Director of California State University East Bay Paralegal and Legal Nurse Consultant Programs.

Nursing Professional Liability Insurance- Do You Need It?

Today, nurses are increasingly obtaining professional liability (malpractice) insurance for various reasons. Many nurses may not have the type of coverage that will protect them if they are sued. In addition, many nurses are accepting the ethical principle of accountability and responsibility for their actions as professionals. Thus they are obtaining professional liability insurance to cover the cost of their legal defense, which could financially destroy them. However, many nurses may not have the type of coverage that will protect them if they are sued. In addition many nurses are not sure if they should obtain professional liability insurance.

January 2006
Will your employer "come after you"?

The principles of indemnification and Contribution place a duty on the nurse defendant to make good the losses incurred by a health care institution as a result of that nurse-employee's negligent actions. Depending on the particular law of the jurisdiction involved, the health care institution may be entitled to recover all or part of the money actually paid for a settlement or judgment, interests on that money paid, legal and defense expenses and court costs! On the other hand, there will also be situations where the institution cannot seek indemnification or contribution from the nurses employee because the nurse is insured under the employer's liability policy. Whether this is true requires analysis of the facts on a case-by-case basis.Although there are no reported separate suits for Indemnification or Contribution which have been brought against a nurse, it is believed that such actions have been successfully pursued by health care institutions.Because of the current economic instability of many health care institutions, it is possible that such actions will be initiated more frequently in the future even though they create an adversary relationship between the nurse-employer and the health care institution.While it may not be smart public policy for health care institutions to sue nurses, if faced with judgment which cannot be paid or which is severely detrimental to the fiscal status of a the health care institution,the governing body of the health care institution may believe it has no other choice. Therefore, indemnification and Contribution suites must be planned for as are other risks.

December 2005 What other insurance coverage exists?

Overlapping insurance can cause confusion. If others provide the nurses' insurance, the nurse (or the nurse's bargaining representative) should review the policy to know exactly what is provided. An institutional liability policy will cover the nurse-employee for acts that are within the scope of employment. The nurse should therefore evaluate his or her clinical practice against the policy and procedure manual of the employer. If a nurse's action is not authorized by the institution, it is possible that the institution's liability policy will not cover that action.Nursing advice on one's own to neighbors (or others) would not be covered by an employer's policy. The nurse is not acting within the employer's direction and control, again, not within the scope of employment.Sometimes the employer self-insures its professional liability exposure, including the exposure of its employees. The self-insurance is not viewed as "insurance" for the purpose of determining whose policy contributes first where both the employer and the employee carry pertinent coverage. In the case of the self-insured employers, the nurse employee with a commercial policy would find the individual liability policy contributing onthe nurse's behalf as primary coverage, with the hospitals self-insurance fund as excess. Where both the employer and the nurse purchase commercial policies, which is the "primary" policy will depend on each policy's language;pro rata contribution is a frequent result.

November 2005

What is your area of clinical practice?

Some studies have shown that the following areas of nursing practice are at more risk for law suit: maternity-obstetrics, intensive care (neonatal, pediatric, adult) and medical surgical (hospital based). While there have been relatively few negligence lawsuits in the areas of community health,school nursing, occupational health, geriatrics, psychiatric nursing, administration, education and research; given the rapidly changing standards of care and the direction of health care in general, the number of negligence suits brought against nurses will increase.

Also, specialty practice with newborns and children may mean a much longer statutes of limitation for pediatric nurses, typically two years past the majority. The longer "tail" exposure (the permitted time between injury and filing of a claim) means that pediatric nurses need either occurrence coverage or continuous claims-made coverage even past retirement.

September 2005

Has State and/or Federal Law increased or decreased your exposure?

In some states public health nurses are immune from professional liability. Some states grant sovereign or charitable immunity to hospitals and hospital employees. All federally employed nurses (Military, Veterans Administration, Public Health Services, etc.) are immune from work related professional liability under the Federal Torts Claims Act (FTCA).

On the other hand, some states have enacted tort reform which caps or limits liability per defendant or for any one defendant. The result of tort reform legislation could be more nurses named as individual defendants in lawsuits, since more defendants implies deeper pockets. Similarly, some states have abolished joint and several liability, so that a defendant is only liable for his or her percentage of the fault. Thus, plaintiff attorneys will include all possible defendants, including nurses, so that the maximum award can be recovered. Therefore, as the individual nurse's exposure increases, so does the need for individual liability protection.

July/August 2005

What is your personal exposure?

How much do you have to lose if sued? If you are found liable for a patient's injuries you will be responsible for paying money to that patient. If you are uninsured or the judgment is in excess of available liability insurance, then you must pay from current savings, liens on property, wage garnishment, or future inheritance. Unfortunately there is little reported data on uninsured nurse liabilities.

Do your State property laws protect some of your assets?

In some states there are laws protecting money and property jointly held. These may apply only to holdings between spouses or may protect any jointly owned assets. Every state has its own laws so a local attorney should be asked what property laws pertain in a specific case. If you would rather contact a Nurse Attorney you may call TAANA (410-418-4800) for the names of Nurse Attorneys in your area.

April 2005
Resource Information from Shelley Cohen

Legal Concepts and Issues in Emergency Care by N. Genell Lee, RN, MSN, JD, is a must have reference for those of you working in Emergency Nursing. Saunders is the publisher and you can purchase it directly from the ENA (www.ena.org). The content is timely and pertinent to the issues and challenges ED nurses face.

The Legal Tip of The Month for January 2004 through January 2005 was brought to you byDinah Brothers R.N. J.D. of Nursing Law InstituteDinahbrothers@aol.com

January 2005
Restraints

Chemical and physical restraints are used daily to secure the safety of patients in various healthcare settings. Even though restraints are intended to increase the safety of the healthcare environment, serious harm can result when restraints are not applied at the appropriate time and in the appropriate manner. In Swann v. Len-Care Rest Home, Inc.490 S.E.2d 572 (N.C. App., 1997), family members expressed concern to the staff that their grandmother, the resident, was becoming more confused and posed a danger to herself. The family requested that their grandmother be restrained when left unattended. An order was obtained for the restraints and the physician wrote a separate letter to the management requesting that the resident be restrained when unattended. The resident, who was left unattended and unrestrained, fell sustaining a serious head injury. At trial, the court noted this was the resident's third fall while she was unrestrained.Holding that the resident should have been restrained when left unattended, the court held for the plaintiff.To avoid liability related to patient restraints always follow the policies and procedures of your institution and implement restraints correctly.