Chapter 2: Standards of Care, Ethical and Legal Issues

INTRODUCTION

Along with the privilege of providing professional health care services to consumers, the professional nurse has a commensurate degree of responsibility and accountability to follow ethical principles and standards of care integral to the profession. Ideally, such accountability should be promoted from within the profession by measures that are incorporated into daily practice. Such measures might include protocol implementation, preceptor performance review, peer review, continuing education, patient satisfaction surveys, and the implementation of risk management techniques. However, in certain instances, either despite or in the absence of such internal mechanisms, claims are made for an alleged injury or alleged malpractice liability. Although many claims may be without merit, many professional nurses will have to deal with the unfamiliar legal system. A system of ethical principles and standards of care will be of benefit in such situations. Therefore, it is preferable for the nursing profession to incorporate certain ethical and legal principles and protocols into practice to make sure that the patient receives only safe and appropriate care.

ETHICAL CORE CONCEPTS

Clinical ethics literature identifies four principles and values that are integral to the professional nurse's practice, namely, the nurse's ethical duty is to respect the patient's autonomy, and act with beneficence, nonmaleficence, and justice.

RESPECT FOR THE INDIVIDUAL AND HIS OR HER AUTONOMY

• Respect for the individual's autonomy incorporates principles of freedom of choice, self-determination, and privacy.
• The professional nurse's duty is to view and treat each individual as an autonomous, self-determining person with the freedom to act in accordance with self-chosen, informed goals, as long as the action does not interfere or infringe on the autonomous action of another.
• See the National League of Nursing Statement on Patients' Rights (see Box 2-1).

BENEFICENCE

The principle of beneficence affirms the inherent professional aspiration and duty to help promote the well-being of others, and often is the primary motivating factor for those who choose a career in the health care profession. Health care professionals aspire to help people achieve a better life through an improved state of health.

NONMALEFICENCE

• The principle of nonmaleficence complements beneficence and obligates the professional nurse not to harm the patient directly or with intent.
• In the health care profession, this principle is actualized only with the complementary principle of beneficence because it is common for the nurse to cause pain or expose the patient to risk of harm when such actions are justified by the benefits of the procedures or treatments.
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• It is best to seek to promote balance of potential risk-induced harms with benefits, with the basic guideline being to strive to maximize expected benefits and minimize possible harms. Therefore, nonmaleficence should be balanced with beneficence.

BOX 2-1 National League of Nursing Statement on Patients' Rights

Nurses have a responsibility to uphold the following rights of patients:

• To health care that is accessible and that meets professional standards, regardless of the setting.
• To courteous and individualized health care that is equitable, humane, and given without discrimination as to race, color, creed, sex, national origin, source of payment, or ethical or political beliefs.
• To information about their diagnosis, prognosis, and treatment—including alternatives to care and risks involved—in terms they and their families can readily understand, so that they can give their informed consent.
• To informed participation in all decisions concerning their health care.
• To information about the qualifications, names, and titles of personnel responsible for providing their health care.
• To refuse observation by those not directly involved in their care.
• To privacy during interview, examination, and treatment.
• To privacy in communicating and visiting with people of their choice.
• To refuse treatment, medications, or participation in research and experimentation, without punitive action being taken against them.
• To coordination and continuity of health care.
• To appropriate instruction or education from health care personnel so that they can achieve an optimal level of wellness and an understanding of their basic health needs.
• To confidentiality of all records (except as otherwise provided for by law or third party payer contracts) and communications, written or oral, between patients and health care providers.
• To access to all health records pertaining to them, and the right to challenge and correct their records for accuracy, and the right to transfer all such records in the case of continuing care.
• To information on the charges for services, including the right to challenge these.
• To be fully informed as to all their rights in all health care settings.

JUSTICE

• Justice, or fairness, relates to the distribution of services and resources.
• As the health care dollar becomes increasingly more scarce, justice seeks to allocate resources fairly and treat patients equally.
• Dilemmas arise when resources are scarce and insufficient to meet the needs of everyone. How do we decide fairly who gets what in such situations?
• One might consider whether it is just or fair for many people not to have funding or access to the most basic preventive care, whereas others have insurance coverage for expensive and long-term hospitalizations.
• Along with respect for people and their autonomy, the complex principle of justice is a culturally comfortable principle in countries such as the United States. Nonetheless, the application of justice is complex and often challenging.

ETHICAL DILEMMAS

CONFLICTING ETHICAL PRINCIPLES

• Ethical dilemmas arise when two or more ethical principles are in conflict.
• Such dilemmas can best be addressed by applying principles on a case-by-case basis once all available data are gathered and analyzed.
• Clinicians should network with their colleagues and consider establishing multidisciplinary ethics committees to provide guidance.

Ethics Committees

• Ethics committees identify, examine, and promote resolution of ethical issues and dilemmas by:
  • Protecting the patient's rights.
  • Protecting the staff and the organization.
  • Reviewing decisions regarding clinical practice and standards of practice.
  • Improving the quality of care and services.
  • Serving as educational resources to staff.
  • Building a consensus on ethical issues with other professional organizations.
• Addressing and resolving ethical dilemmas is usually a challenging decision shared with the clinical staff.

EXAMPLES OF ETHICAL DILEMMAS AND POSSIBLE RESPONSES

Unsafe Nurse-to-Patient Ratio

• A pattern of unsafe nurse-to-patient ratio can be caused by staffing problems, be they temporary or longer term.
• A series of actions to best resolve the problem includes:
  • Address this unsafe situation verbally and in writing to the nurse unit charge nurse with copies to the nursing supervisor and director of nursing.
  • This will likely prompt action by the hospital, such as creating an as-needed pool of nurses to call for such situations, hiring more staff or, in the interim, securing contracts with outside nursing agencies and utilizing agency nursing personnel.
• Tolerance by staff nurses employed under such circumstances will preclude appropriate resolution and will leave
  

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  the nurse open to unsafe practice and unmet patient needs, potentially increasing the risk of liability.
• Although the employer is liable for the acts of the employee performed within the scope of employment, the nurse will not be exonerated should a patient's care be compromised in a setting of an unsafe nurse-to-patient ratio.

Nonresponse by Physician

• A patient arrives to the rehabilitation unit at 9 PM with numerous positive criteria for falling, including poor short-term memory, daily use of a diuretic, daily use of a sleep aid, a history of a fall within the preceding 2 months, and known visual impairment.
  • She is oriented to time, place, and person and is oriented to her new room, hospital bed, and call light equipment use.
  • The nurse instructs the patient to summon her if she needs to void or otherwise get out of bed, at least until she becomes familiar with her new environment.
  • Ten minutes later, upon returning to the patient's room, the nurse finds the patient out of bed, arranging her clothes in her closet, standing in a pool of urine on the floor.
  • The nurse weighs the risks and benefits of restraint use and determines whether alternatives are available. She calls the physician for a restraint order if the patient continues to jeopardize her safety. The nurse intends to ask the physician for an order with clear specification of the least restrictive method of restraint, the duration, circumstances, frequency of monitoring and reevaluation if it differs from hospital policy. However, the physician does not return her calls. The nurse documents her initial assessment of the patient, her nursing diagnoses, the orientation to room and equipment provided to the patient and the circumstances wherein she found the patient out of bed, her repeated messages for the physician and the lack of a return telephone call.
• Again, a series of actions may resolve the problem or at least prevent injury to the patient. Address this situation with intermediate measures while waiting for the physician's return call:
  • Raise the side rails on the patient's bed.
  • Move the patient to a room close to the nurse's station.
  • Place a sign on the patient's room door and above the bed identifying her as being at risk for falling.
  • Place a sign above the bed instructing personnel to raise the bed side rails fully before leaving the patient's room.
  • Check on the patient frequently during the first 24 hours, reminding her of the call light, its use, and the need to call the nurse before getting out of bed.
• Call the patient's family, advising them of your concern about the patient's safety and discuss the issue of restraints with them. Discuss the risk for falling and prevention of fall-induced injury versus the restriction of the patient's freedom of movement about the room.
• Document ongoing assessments of potential problems, calls to the physician, and discussions with family members.
• Apply restraints per policy of rehabilitation unit until order is secured from the physician.
  • Consult hospital policy on restraint use.
  • Secure an order from physician for restraints to be used as needed, including specific criteria outlined in 1d above.
• Reassess the patient's need for diuretic and sleep aid or sedative use. Discuss discontinuation of any unnecessary medications that increase patient's degree of confusion or risk for falling if possible.

Inappropriate Orders

• Your 65-year-old patient with diagnosis of controlled heart failure is presently in the intensive care unit for treatment and hemodynamic monitoring. He is becoming increasingly anxious during your shift, but vital signs are stable and respiratory distress is absent. A house officer is summoned to evaluate this change in clinical status.
  • The house officer, unfamiliar with the patient, spends 2 minutes reviewing the chart, examines the patient for 2 minutes, and orders a sedative to be administered stat and as needed, every 4 hours.
  • You tell the house officer that you heard decreased breath sounds in the left, lower lung and ask him to order some diagnostic tests, such as a chest X-ray and arterial blood gas analysis, and share your concern that administering a sedative to the patient may mask the underlying cause of the anxiety, lead to respiratory compromise, and delay diagnosis and treatment of the underlying clinical problem. Nevertheless, he leaves the unit.
  • You decide not to give the sedative ordered by the house officer.
• Although you cannot automatically follow an order you think is unsafe, you cannot just ignore a medical order, either.
  • Document the scenario described above in the patient's chart, contact the resident on call, and notify your supervising nurse.
  • If assessment by the resident on call agrees with the house officer, call the attending physician, discuss your concerns with him, obtain appropriate stat orders, and notify the house officer and resident of the attending physician's orders and the actions you took.
  • Notify all involved medical and nursing personnel of the patient's status.
  • Document clearly, succinctly, and in a timely fashion.
• Your actions reflect a concern about the best interest of the patient, and, although they may yield negative behaviors by the house officer or resident, it is more important to prevent potential injury to the patient.

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LEGAL ASPECTS OF PROFESSIONAL NURSING PRACTICE

ACCOUNTABILITY

• Integral to the practice of any profession is the inherent need to be responsible for actions taken and for omissions.
• The professional nurse must be proactive and take all appropriate measures to ensure that her own practice is not lacking, remiss, or deficient in any area or way.
• Useful proactive measures include:
  • Maintaining familiarity of relevant, current hospital policies, procedures, and regulations as they apply to the nurse's practice and specialty area.
  • Providing for self-audit.
  • Providing for peer review to assess reasonableness of care in a particular setting for a particular problem.
  • Working with local nursing organizations to make certain that local standards of practice are met.
  • Examining the quality (accuracy and completeness) of documentation.
  • Establishing open working relationships with colleagues wherein honest constructive criticism is welcomed for the greater goal of quality patient care.
• Local standards of practice normally coordinate with those of nationally accepted standards.

ADVOCACY

The professional nurse has the duty to:

• Promote what is best for the patient.
• Ensure that the patient's needs are met.
• Protect the patient's rights.

CONFIDENTIALITY

• The patient's privacy is consistent with the Hippocratic oath and with the law as part of the constitutional right to privacy.
• Although the professional nurse should assure the patient of confidentiality, limits on this standard must be clarified and discussed with the patient at the earliest opportunity.
• It is imperative to clearly understand the process of informed consent and the legal standard for disclosure of confidential patient information to others.
• The Medical Record Confidentiality Act of 1995, a federal statute, is the primary federal law governing the use of health treatment and payment records. Several practical guidelines include:
  • Respecting the individual's right to privacy when requesting or responding to a request for patient's medical records.
  • Always requiring a signed medical authorization and consent form to release medical records and information to protect and respect patient-provider privilege statutes.
  • Discussing confidentiality issues with the patient and establish consent. Address concerns or special requests for information not to be disclosed.
• Enacted in August 1996, The Health Insurance Portability and Accountability Act of 1996 (HIPAA, commonly misabbreviated as HIPPA) was designed to make health insurance more affordable and accessible and recognize the need for national patient record privacy standards. The law places limits on pre-existing condition exclusions in group health plans, gives new enrollees credit for prior coverage, makes it illegal to use health status as a reason for denying coverage, guarantees group coverage for employers with 50 or fewer employees, and guarantees renewability of group health plans. The law included provisions designed to save money for health care businesses by encouraging electronic transactions and requires new safeguards to protect the confidentiality and security of that information. The law gave Congress until August 21, 1999 to pass comprehensive health privacy legislation. However, Congress did not enact such legislation and the law required that after 3 years, the Department of Health and Human Services (DHHS) enact such protections by regulation. In December 2000, DHHS issued a final rule to protect the confidentiality of individually identifiable health information. The rule:
  • Limits the use and disclosure of certain individually identifiable health information.
  • Gives patients the right to access their medical records.
  • Restricts most disclosure of health information to the minimum needed for the intended purpose.
  • Establishes safeguards and restrictions regarding the use and disclosure of records for certain public responsibilities, such as public health, law enforcement and research.
  • Provides for criminal or civil sanctions for improper uses or disclosures.
• The exceptions or limits to confidentiality include situations in which society has judged that the need for information outweighs the principle of confidentiality. However, legal counsel should be consulted because these decisions are made on a case-by-case basis, and broad generalizations cannot be assumed.
• It may be appropriate to breach confidentiality on a limited basis in situations such as the following:
  • If a patient reveals intent to harm himself or another individual, it is imperative to protect the patient and third parties from such harm.
  • A clinician employed by a company, school, military unit, or court has split allegiances, and the patient should be so advised at the appropriate time.
  • Court orders, subpoenas, and summonses in some states may require the clinician to release records for review or testify in court. However, legal counsel should be consulted first to assure that complying with the court order, subpoena or summons would not violate HIPAA.
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  • Most insurance companies, health maintenance organizations, and governmental payers require participants to sign a release of their records to the payers.
  • When a patient places his or her medical condition at issue, such as in personal injury cases, workman's compensation, or in various other cases of patients claiming injuries for which they are seeking compensation from any entity or organization.
  • Many states have laws requiring clinicians to report the incidence of certain diseases, deaths, and other vital statistics.
  • Criminal codes in many states require reporting gunshot wounds, incidents of rape, and incidents of child, spouse, or elder abuse if they have reasonable cause to suspect abuse.

INFORMED CONSENT

• The doctrine of informed consent has become a fundamentally accepted principle governing the relationship between professional nurses and all other health care providers and patients.
• Informed consent relates to the patient's right to accept or reject treatment by a nurse or any other health care provider and is a right of all legally competent adults or emancipated minors.
• In the majority of circumstances, informed consent is obtained for medical or surgical procedures to be performed by physicians. Therefore, the duty to inform the patient of alternative treatments, the nature of the procedure, the benefits, and potential risks is the physician's. Oftentimes, especially when the patient is hospitalized, the nurse is required to witness the patient's signature before the procedure. It is prudent for the nurse to note witness to signature directly next to the patient's signature.
• Emancipated minors are individuals who are under age 18 and married, or are parents of their own children, or are self-sufficiently living away from the family domicile with parental consent.
• In the case of a minor, informed consent would be obtained from the legal guardian.
• In the case of individuals incapable of understanding medical treatment issues, informed consent must be obtained through a responsible person such as a guardian.
• The nurse has the duty to verify that the physician or other health care provider has explained each treatment or procedure in a language the patient (or the responsible person) can comprehend, that he has warned the patient of any material risks, dangers, or harms inherent in or collateral to the treatment, and has advised the patient of available alternatives. This enables the patient to make an intelligent and informed decision and choice about whether to undergo treatment.
• The informed consent should be obtained before rendering the treatment or performance of the procedure.
• The nurse must document that the informed consent was obtained and that the patient understood the information.
• The informed consent should be obtained in the presence of a witness.

NURSING ALERT

With the increasing cultural diversity of our patient population, it is prudent to obtain an interpreter for the patient if there is a reasonable chance that the patient will not understand explanations in the English language.

SCOPE OF PRACTICE, LICENSURE, AND CERTIFICATION

• The professional nurse's scope of practice is defined by the individual state regulations that govern practice.
• The nurse should obtain a description of the RN's or LPN's scope of practice as outlined by the State Board of Nursing for the appropriate level of nursing.
• Licensure is granted by an agency of state government and permits individuals accountable for the practice of professional nursing to engage in the practice of that profession, while prohibiting all others from doing so legally.
• Licensure permits the use of a particular title and protects the public by ensuring a minimum level of professional competence.
• Certification is provided by a nongovernment association or agency and certifies that a person licensed to practice as a professional nurse has met certain predetermined standards described by that profession for specialty practice.
• Certification assures the consumer that a person has mastered a body of knowledge and acquired the skills in a particular specialty.
• The mechanisms for achieving certification vary by association and certifying body. Various types of criteria and national certification requirements are utilized.
• The professional nurse with a specialty certification must meet specific conditions for certification maintenance or recertification, such as a specified number of hours of clinical practice, continuing education, peer review, periodic self-assessment examination, and reexamination.
• The American Nurses Credentialing Center (ANCC) is one certifying body that provides specialty certification (http://www.nursingworld.org/ancc or 800-264-2378).
• Credentialing is the process that protects the public by recognizing professional nurses who have successfully completed an approved course of study and achieved a level of specialized knowledge and skill to hold specialized positions.

STANDARDS OF PRACTICE

General Principles

• Like other professions, the practice of professional nursing has standards of practice setting minimum levels of acceptable performance for which its practitioners are accountable. These standards provide patients with a means of measuring the quality of care they receive.
• Standards of practice were first developed by the ANA in 1966 after an organizational revision of the ANA that resulted in the creation of five specialized divisions of practice.
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• Professional nurses are to be guided by the generic standards applicable to all nurses in all areas of practice as well as by specialty area standards.
• A copy of the standards of practice can be obtained from the ANA publications office, which can be reached at http://www.nursesbook.org or 1-800-637-0323.
• The authority for the practice of nursing is based on a social contract that acknowledges rights and responsibilities, along with mechanisms for public accountability.
• Various specialty groups have developed their own additional standards, but addressing these exceeds the scope of this chapter. The professional nurse needs to be familiar with all standards applicable to her own practice areas.
• Standards and parameters are a source of legal protection for the nurse practitioner.
• Standards and parameters typically consist of a simple, realistic series of steps that will always apply to certain clinical scenarios.
• Standards and parameters should outline the minimum requirements for safe care and need to be updated as scientific knowledge changes.
• A deviation from the protocol should be documented in the patient's chart with clear, concise statements of the nurse's decisions, actions, and reasons for the deviation. This should be done at the time the care is rendered because passage of time may lead to a less than accurate recollection of the specific events.
• Informal or volunteer practice may provide the professional nurse some legal protection if it can be documented that the care rendered was the standard of practice within a community or state. Informal or volunteer care still needs to comply with the applicable standard of care.

The Standards of Professional Nursing Practice

• The standards of professional nursing practice include standards of care and standards of professional performance (see Box 2-2).
• The standards of care for professional nursing include assessment, diagnosis, outcome identification, planning, implementation, and evaluation.
• The standards of professional performance include quality of care, performance appraisal, education, collegiality and collaboration, ethics, resource utilization, and research.

Common Departures from the Standards of Nursing Care

Claims most frequently made against professional nurses include failure to make appropriate assessments, follow physician orders, follow appropriate nursing measures, communicate information about the patient, follow facility policy and procedures, document appropriate information in the medical record, and following physician's orders which should not have been followed, such as orders containing medication dosage errors (see Box 2-3, page 18).

BOX 2-2 Standards of Professional Nursing Practice

STANDARDS OF CARE

• Assessment
• Diagnosis
• Outcome Identification
• Implementation
• Evaluation

STANDARDS OF PROFESSIONAL PERFORMANCE

• Quality of Care
• Performance Appraisal
• Education
• Collegiality
• Ethics
• Resource Utilization
• Research

QUALITY ASSURANCE

• A quality assurance program allows for a systematic, deliberate, and ongoing mechanism for the evaluation and monitoring of professional nursing practice in terms of the quality of patient care and organizational management.
• Such a proactive program promotes responsibility and accountability to deliver high-quality care, evaluates and improves patient care, and provides an organized means of problem solving.
• Consequently, use of a quality assurance program effectively reduces the professional nurse's exposure to liability, identifies educational needs, and improves the documentation of the care provided.
• The components of quality assurance include:
  • Structure—focuses on the organization of patient care.
  • Process—focuses on tests ordered and procedures performed.
  • Outcome—focuses on the outcome achieved, such as improvement, absence of complications, timely discharge, patient satisfaction, or death.
• Mechanisms to incorporate in quality assurance programs may include:
  • Patient satisfaction surveys to assess nurse interactions and maintain open lines of communication between the provider and the patient.
  • Peer review to recognize and reward care delivered, lead to higher standards of practice within a community, and discourage practice beyond the scope of legal authority.
  • Audit of clinical records to determine how well established criteria were met by the care rendered.
  • Utilization review to evaluate the extent to which services or resources were used as measured against a standard.

BOX 2-3 Common Legal Claims for Departure from Standards of Care

• Failure to monitor or observe a patient's clinical status adequately
• Failure to monitor or observe a change in a patient's clinical status
• Failure to communicate or document a significant change in a patient's condition to appropriate professional
• Failure to obtain a complete nursing history
• Failure to formulate or follow the nursing care plan
• Failure to perform a nursing treatment or procedure properly
• Failure to provide a safe environment and to protect the patient from avoidable injury
• Failure to implement a physician/NP/PA order properly or in a timely fashion
• Failure to administer medications properly and in a timely fashion, or to report and administer omitted doses appropriately
• Failure to observe a medication's action or adverse side effect
• Failure to prevent infection
• Failure to obtain help for a patient not receiving proper care from a physician or other health care provider
• Failure to report that a patient is not receiving proper care from a physician or other health care provider
• Failure to use equipment properly
• Failure to evaluate or identify a patient at high risk for falling or to plan and implement a fall prevention program appropriate to the individual patient
• Failure to apply restraints when indicated and ordered
• Failure to apply restraints in a proper manner
• Using equipment that is known to be defective
• Failure to make prompt, accurate entries in a patient's medical record
• Altering a medical record without noting it as a correction with signature, date, and time of change
• Failure to adhere to hospital policy or procedural guidelines
• Following medical orders which should not have been followed such as medication dosage errors
• Failure to act as a patient advocate, such as not questioning illegible or incomplete medical orders, or not questioning discharge when a patient's clinical status warrants

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MANAGEMENT OF LIABILITY

• The sources of legal risk in a professional nurse's practice include patient care, procedures performed, and quality of documentation.
• Liability can be minimized by the application of risk management systems and activities, which are designed to recognize and intervene to reduce the risk of injury to patients and subsequent claims against professional nurses.
• Risk management systems and activities are based on the premise that many injuries to patients are preventable.

MALPRACTICE

• Nursing malpractice refers to a negligent act of a professional nurse engaged in the practice of that profession.
• Although negligence embraces all negligent acts, malpractice is a specific term referring to negligent conduct in the rendering of professional services.
• There is no guaranteed way to avoid a medical malpractice suit short of avoiding practicing as a professional nurse. Even the best nurses have been named as defendants.
• A diligent and reflective nurse can reduce the risks of malpractice by consistently incorporating the following four elements into her practice:
  • Excellent communication skills, with consistent efforts to elicit and address the expectations and requests of the patient
  • Sincere compassion for each patient
  • Competent practice
  • Accurate and complete charting with notations of any deviations from the applicable standard of care with the specific reasons (eg the patient refused chest radiograph due to time constraint), and the patient's noncompliance
• Generally, the professional nurse has the duty to:
  • Exercise a degree of diligence and skill that is ordinarily exercised by other professional nurses in the same state and specialty of practice.
  • Apply such knowledge with reasonable care.
  • Keep informed of approved standards of care in general use.
  • Exercise her own best judgment in rendering care to the patient.
• Some states apply a geographic standard, referred to as a locality rule, which asserts that providers in remote rural areas may have less access to continuing education and various equipment than their colleagues in urban areas. However, because communication and transportation continue to improve rapidly, the locality rule is becoming obsolete.

Burden of Proof for Malpractice

The plaintiff has the burden of proving four elements of malpractice, usually by means of expert testimony.

Duty

• The plaintiff has a burden to prove that a nurse-patient relationship did, in fact, exist and, by virtue of that relationship, the nurse had the duty to exercise reasonable care when undertaking and providing treatment to the patient.
• Limits and obligations of duty include:
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  • This duty exists only when there is a nurse–patient relationship.
  • The professional nurse is not obligated to enter into a nurse–patient relationship with any individual.
  • Professional nurses generally have the right to decide to whom they will provide professional services and may request to be reassigned to another patient if the nurse–patient relationship is strained, difficult, or otherwise not comfortable.
  • Nurses have limits on their rights to decide, however; they cannot refuse to treat a patient who has relied reasonably on the nurse's apparent willingness to treat all in need (eg, the emergency department in a general hospital that advertises its emergency services) and may not abandon an established patient.
  • If a professional nurse wishes to terminate an established relationship with a patient, an available alternative with equivalent level nursing services must be made available to the patient in a timely fashion.

NURSING ALERT

The professional nurse must use caution when offering telephone advice for which there is no charge; there have been reported cases of patients successfully suing providers because they reasonably relied on the telephone advice of a nurse that caused them to delay seeking care and sustained permanent injuries as a result.

Breach of Duty

• The plaintiff has the burden to establish that the professional nurse violated the applicable standard of care in treating the patient's condition.
• The plaintiff must establish by way of expert professional nurse testimony that the “negligent” nurse failed to conform to the applicable standard of care or provided nursing care that fell below the level of care that would have been provided by a prudent and diligent nurse under the same circumstances.

Proximate Cause

• The plaintiff has the burden of establishing a causal relationship between the breach in the standard of care and the patient's injuries.
• If a breach in standard of care did not cause the alleged injuries, there is no proximate cause.

Damages

The plaintiff has the burden of establishing the existence of damages to the patient as a result of the malpractice.

Malpractice Insurance

• Malpractice insurance will not protect the professional nurse from charges of practicing outside her scope of practice if she is practicing outside the legal scope of practice permitted within the state.
• It is critical that the nurse know the exact scope of practice permitted in her jurisdiction.
• It is universally recommended that all professional nurses carry their own liability insurance coverage. This affords the nurse her own legal representation and an attorney who will be looking out solely for the nurse's best interests. Such coverage is recommended over and above the legal coverage and representation afforded by the employer's coverage.

The National Practitioner Databank

• In 1986, The Health Care Quality Improvement Act established a databank to examine members of health care professions and list physicians, nurses, and all other health care professionals who have had a malpractice claim asserted against them.
• At the time this databank was put into operation in 1991, it was limited to physicians and other health care providers in the hospital setting.
• Recently, however, it has been expanded to include certain ambulatory care settings. Several more years of data collection will be needed before meaningful numbers emerge.
• At the present time, all hospitals must query the databank every 2 years regarding health care practitioners on their professional medical and nursing staff, those to whom they have granted clinical privileges, or new appointments.
• It is likely that continued health care industry evolution will yield statistics concerning health care practitioners' histories in relation to malpractice claims.
  • Exactly how these statistics will be utilized is not clear at the present time, but it would not be surprising for them to be used as one of several selection criteria for job applicant screening, for example.

TELEPHONE TRIAGE, ADVICE, AND COUNSELING

• The use of telephone triage, advice, and counseling has become increasingly prevalent as health care providers have attempted to meet and satisfy the health care needs of their patients, increase access to care, and improve continuity of care, while limiting scheduled appointments to those truly requiring a patient–physician or other health care provider interaction.
• Health care professionals who provide telephone services must keep in mind that they are legally accountable for gathering an accurate and complete history, application of appropriate protocols for diagnostic impressions, appropriate consultation with physicians and other health care providers, advice and counseling given, and facilitating timely and appropriate access to treatment facilities or referral to specialists to those in need.
• A number of legal concepts of relevance to telephone triage are outlined in the next section.

Confidentiality

Just as in face-to-face interactions, all information exchanged during a telephone interaction is privileged and to be used only in the context of the advice being sought, with the sole purpose of providing the most appropriate and timely care needed by the patient.

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Implied Relationships

Even if the professional nurse providing telephone advice has never had face-to-face interaction with the patient, the telephone interaction itself will establish a formal and legally binding nurse–patient relationship, for which the practitioner will be accountable legally.

Information Retrieval

• The professional nurse has the duty to provide advice and counsel in the context of all medical data available to the practice from within the patient's medical record.
• Therefore, a rapid method for the retrieval of medical record data should be established and integrated into the telephone component of all practices.
• Telephone advice must not be provided in a vacuum of knowledge about the patient's past history.
• Because limited time will usually preclude the gathering of all data available in the medical record, advice rendered without the benefit of all known medical history is more subject to error.

Respondeat Superior

• Employers are held accountable, legally responsible, and liable for all inappropriate advice provided by their employees, and all damages that may result.
• Therefore, employers must be responsible for educating and training the employees and updating protocols.

Vicarious Liability

• Although similar to the concept of respondeat superior, vicarious liability is a broader concept in that a professional nurse providing telephone advice or counseling may be viewed as a representative of the clinic physician, practice group, or clinic, thereby binding them legally for all acts of omission or commission, and damages that result.
• Thus, if telephone advice and counsel are rendered by an LPN, RN, or unlicensed personnel, the nurse, health care facility, or physicians in the practice may be viewed by a court as vicariously liable for inappropriate advice provided and all resulting damages to the patient.
• This underscores the reasons for limiting this practice to well-trained nurses, physicians, and other health care providers and following carefully devised office protocols and standards.
• The professional nurse must be encouraged to consult briefly with the in-office physician or other health care providers to reduce the possibility of advice that is not appropriate, oversights, and errors.

Negligent Supervisor

• This concept relates to the failure of a supervising physician or other health care professional to provide the needed guidance and direction to the telephone advice nurse, despite a prevailing understanding, practice, or policy obligating this supervision.
• Usually overlaps with respondeat superior or vicarious liability.

Negligence

• Any telephone assessment and advice rendered must be in accordance with the generally accepted standards and protocols.
• Violation of the applicable standards of practice or care is considered to be negligent.
• Evidence of standards of care are established by:
  • Publications on the topic.
  • Community practices.
  • Generally accepted guidelines or treatises on the topic.

Abandonment

• This concept becomes operational when a patient calls or comes in to report symptoms, seek advice, or request an on-site evaluation or treatment, and this communication is documented or otherwise established as fact, but the telephone advice nurse fails to follow through with the professional component of the interaction (advice).
• However, unless an undesirable outcome with serious and permanent damages occurred due to the absence of follow through by the telephone practitioner, it is doubtful that a legal claim could be brought successfully against the practitioner.

ELECTRONIC COMMUNICATION AND TELEMEDICINE

• In coming years, electronic communication is likely to become as prevalent as telephone advice, particularly for the 15% to 25% of Americans who reside in medically underserved or nonurban communities.
• Although now communication is, for the most part, limited to the telephone or facsimile transmission, communication by high-tech computer systems that allow transmission of images (such as radiographs) and other data is likely to become prevalent in the near future.
• Although legal accountability for such distance care is, as yet, unestablished, it is probable that the previously mentioned principles will apply to those practices as well if a formal nurse–patient relationship is perceived to exist by the court.

SUCCESSFUL TELEPHONE PRACTICE

• Policies aimed at minimizing the risk of an untoward outcome resulting from telephone advice, triage, and counseling should be established in every practice.
• Policies should include protocol use, telephone practitioner training and education, use of an established patient database, communication with physician or other health care providers, and appropriate documentation of interaction.
• See Box 2-4 for components of a successful telephone advice practice.
• The telephone advice nurse must gather and document certain fundamental information from the patient seeking health care advice or treatment. Although the following list is presented, it is not intended to limit inquiry or imply
  

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  that the list is exhaustive. The inquiry and documentation must minimally include:
  • Date and time of the call.
  • Caller information including the name of the patient, relationship to the patient, telephone number with area code, when and where the caller may be reached for return calls, and alternative telephone numbers with area code for backup.
  • Chief complaint.
  • History of present illness, with brief description of onset, symptoms, treatment used to date, effectiveness or lack of effectiveness of measures attempted, and aggravating or alleviating factors.
  • Whether the patient has had this problem before and, if so, when, diagnosis, and method of resolution.
  • If female, last menstrual period, method of birth control, and follow-up to rule out pregnancy.
  • Past medical history and other medical problems.
  • Allergies.
  • Likely differential diagnosis based on the established protocols and guidelines being utilized by the organization or clinic.
  • Impact of the problem on the caller or patient.
  • Accessibility of alternative sources of health care.
  • Nurse's perception of the patient's vulnerability.
  • Nurse's perception of the patient's understanding and comfort with the plan of care and follow-up plans.

Components of Successful Telephone Practice

• Apply standardized protocols and guidelines for the most frequently reported chief complaints.
• Train nurses in proper history taking, protocol or guideline utilization, and documentation.
• Apply a computer-based approach to manage the telephone encounters to complement existing protocols and guidelines to improve the process and documentation of the encounter.
• Implement a quality assurance system to ensure a regular review of telephone logs.
• Discuss problem cases with telephone advice nurses and perform outcome surveys.
• Maintain a constant availability of physicians and other health care providers to provide consultative assistance to the telephone advice nurse as needed.
• Ensure an ongoing review and revision of protocols and policies to eliminate or improve on problematic policies and protocols.
• Schedule patients with serious problems as soon as possible.
• Ask and confirm that the patient understands and feels comfortable with the plan at the end of the telephone interaction.
• Invite the patient for an after-hours visit if she is uncomfortable with receiving home care instructions or with waiting until the next day to see the physician or other health care provider.
• Encourage patients to call back if their condition worsens or if they have additional questions.
• Advise patients to contact their health care provider the next day if the problem has not improved.
• Document succinctly the components of the telephone interaction, including the chief complaint, history of present illness, past medical history, allergies, home care or other instructions given, confirmation of the patient's understanding and comfort with the advice given, emergency precautions provided, and follow-up plans.