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

2. 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

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

4. 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

5. 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

6. 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

7. 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.

8. 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

9. 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

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

11. 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

12. STANDARDS OF NURSING CONDUCT OR PRACTICE
WAC
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:

13. 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.

14. 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.

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

16. VIOLATIONS OF STANDARDS OF NURSING CONDUCT OR PRACTICE
WAC
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:

17. WAC Continued
Failure to adhere to the standards enumerated in WAC (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.

18. WAC 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.

19. WAC Continued
Failure to adhere to the standards enumerated in WAC (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.

20. WAC Continued
Writing prescriptions for drug unless authorized to do so by the board.

21. WAC
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.

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

23. PROCESS INVESTIGATION CHARGES DISCOVERY OPTIONAL SETTLEMENT CONFERENCE
HEARING
APPEAL

25. RIGHTS
TO COUNSEL
TO A HEARING

26. 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

27. Just Culture: A Practical Approach