Johnson, Graffe, Keay, Moniz & Wick, LLP MALPRACTICE LICENSURE ISSUES DONNA M. MONIZ RN, MN, JD Johnson, Graffe, Keay, Moniz & Wick, LLP

GENERAL AREAS OF LIABILITY TO WHOM IS HEALTH CARE PROVIDER RESPONSIBLE? IS PATIENT INJURY NECESSARY? RESULT IF SUCCESSFUL MALPRACTICE OR NEGLIGENCE PATIENT YES MONEY PAID TO PATIENT BY HEALTH CARE PROVIDER ADMINISTRATIVE LICENSING DEPARTMENT OF HEALTH NO LOSS OF LICENSE OR KEEPING LICENSE ON CERTAIN CONDITIONS; FINE UP TO $5,000 PER OCCURRENCE CRIMINAL STATE REPRESENTED BY PROSECUTORS JAIL AND/OR FINE

ELEMENTS OF A SUCCESSFUL MALPRACTICE SUIT A. DUTY B. BREACH C. DAMAGE D. CAUSATION

HOW IS THE STANDARD OF CARE DETERMINED A. Current Practice in Washington B. Educators C. Texts D. Journals including web E. Research Studies F. Agency Policies G. Agency Procedures H. State Regulations I. Standards of Professional Organizations

PREVENTION A. Keep up with advances in practice B. Apply new knowledge to practice C. Monitor patient’s condition D. Keep physician informed of patient’s condition E. Document observations made and care given F. Make policies and procedures realistic or don’t make them at all G. Challenge other health care providers when there is obvious negligence H. Maintain good rapport with patients

SAMPLE CASES Leg injury in ED Alleged birth injury from fetal distress Falling light in OR Romance in psych unit Sleep apnea, sedatives and respiratory arrest

DOCUMENTATION Records should be timely. Records should be complete and include all accurate information. Records should include normal findings, such as normal vital signs, good appetite, and healthy activity. Precise timing of critical events should be included as accurately as possible.

DOCUMENTATION Vital signs, lab results and other data should always be recorded in accordance with protocol. Descriptions should be objective. Ideally, SOAP should be used. Templates must be accurate and updated

DOCUMENTATION CERTAIN ITEMS ARE RED FLAGS IN MEDICAL RECORDS. TO AVOID DRAWING ATTENTION TO YOUR NOTE Avoid saying, “Error” or “Mistake” Never obliterate or White-Out an entry. Avoid copy and paste. Do not criticize other providers in the medical record. Avoid reference to incident report

DOCUMENTATION PITFALLS Obliterated entries Multiple late entries Write overs “Copy and paste” for templates No entries Entries made by nurse not even in hospital

SOURCES OF LIABILITY FOR LICENSING ACTION Care below standard Care beyond scope of practice Drug diversion or abuse Patient abuse, sexual contact Other violations of statutes or regulations including bills

STANDARDS OF NURSING CONDUCT OR PRACTICE WAC 246-839-700 STANDARDS OF NURSING CONDUCT OR PRACTICE . . .The nurse shall be responsible and accountable for the quality of nursing care given to clients. This responsibility cannot be avoided by accepting the orders or directions of another person. The standards of nursing conduct or practice include, but are not limited to the following:

WAC 246-839-700 Continued Nursing Process The nurse shall collect pertinent objective and subjective data regarding the health status of the client. The nurse shall document, on essential client records, the nursing care given and the client’s response to that care. The nurse shall communicate significant changes in the client’s status. The nurse shall document nursing care given and the client’s response.

WAC 246-839-700 Continued Other Responsibilities The nurse shall function within the legal scope of nursing practice. The nurse shall obtain instruction, supervision, and consultation before implementing new or unfamiliar techniques. The nurse shall be responsible for maintaining current knowledge in his/her field of practice. The nurse shall practice without discrimination.

WAC 246-839-700 Continued The nurse shall respect the client’s right to privacy by protecting confidential information. The nurse shall report unsafe nursing acts and practices.

VIOLATIONS OF STANDARDS OF NURSING CONDUCT OR PRACTICE WAC 246-840-710 VIOLATIONS OF STANDARDS OF NURSING CONDUCT OR PRACTICE . . . Such conduct or practice may be grounds for action with regard to the license to practice nursing . . . Such conduct or practice includes, but is not limited to the following:

WAC 246-840-710 Continued Failure to adhere to the standards enumerated in WAC 246-840-700 (1) which may include: Willfully or repeatedly failing to report or document a client’s symptoms, responses, progress, medication, or other nursing care accurately and/or intelligibly.

WAC 246-840-710 Continued Failure to Adhere to Standards also may include: Willfully or repeatedly failing to make entries, altering entries, destroying entries, making incorrect or illegible entries and/or making false entries in records pertaining to the giving of medication, treatments, or other nursing care.

WAC 246-840-710 Continued Failure to adhere to the standards enumerated in WAC 246-840-700 (2) which may include: Delegating nursing care function or responsibilities to a person who the nurse knows or has reason to know lacks the ability or knowledge to perform the function or responsibility, or delegating to unlicensed person those functions or responsibilities the nurse knows or has reason to know are to be performed only by licensed persons.

WAC 246-840-710 Continued Writing prescriptions for drug unless authorized to do so by the board.

WAC 246-840-710 Willfully abandoning clients by leaving a nursing assignment without transferring responsibilities to appropriate personnel or care giver when continued nursing care is required by the condition of the client(s). Practicing nursing while impaired by alcohol and/or drugs. Conviction of a crime involving physical abuse or sexual abuse relating to the practice of nursing.

SAMPLE CASES Med Errors Failing to observe and intervene Alcohol on breath Self administration of medication Romance with patient Slapping, biting

PROCESS INVESTIGATION CHARGES DISCOVERY OPTIONAL SETTLEMENT CONFERENCE HEARING APPEAL

RIGHTS TO COUNSEL TO A HEARING

Just Culture: Balancing Accountability and Blame-Free Approaches Human Error At-Risk Behavior Reckless Behavior Inadvertent action: slip, lapse or mistake Choice: Risk is not recognized or believed justified Conscious disregard of unreasonable risk Manage through: Processes Procedures Training Design Removing incentives for at-risk behaviors Creating incentives for healthy behaviors Increasing situational awareness Remedial action Punitive action Adapted from David Marx, JD www.justculture.org

Just Culture: A Practical Approach