All Things Legal - O'Brien 1/26/19

Objectives

• Identify common areas of perianesthesia negligence All Things Legal and liability Perianesthesia Nursing • List methods to prevent liability in the perianesthesia practice setting Denise O’Brien DNP, RN, ACNS-BC, CNS-C, CPAN, CAPA, FAAN, FASPAN Perianesthesia Clinical Nurse Specialist January 26, 2019

Standard of Care Negligence Law

• Legally, nurses are held accountable to deliver care in a manner • Negligence that any prudent nurse would render in the same or similar circumstances. • Malpractice (Professional Negligence) • Follow the – Assessment, diagnosis, planning, implementation, evaluation • Tort Law

Elements of Malpractice or Negligence Definition

• Duty • Liability: legal responsibility for acts or failure to act according • Breach of duty to standards, results in another person’s harm • Foreseeability • Causation • Common causes of nursing liability • Injury • Damages

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Employer Liability

• Respondent Superior • Res Ipsa Loquitur: “the thing speaks for itself” – Employer responsible for actions of employee – A rule of evidence that allows supposition of negligence on the part • Corporate liability of the defendant – Facility has responsibility to consumers to ensure clinical staff is adequately trained

Intentional Torts Quasi-intentional Torts

• Assault • Invasion of privacy

• Battery • Defamation

• False imprisonment

Personal Accountability Nurses Are Named in Malpractice Cases

• Nurse Practice Act • Required to delegate duties • Patients are discharged from the hospital earlier • National standards • Nursing shortages are well publicized • Healthcare technology advances • Education • Practicing with increased autonomy & responsibility • Consumers are better informed on their conditions & what to • Policies and procedures expect from caregivers

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Prevention of Liability Patient Confidentiality

• Adequate training • Elements of patient confidentiality • Follow standards, procedures – HIPAA (Health Insurance Portability and Accountability Act of 1996) is legislation that provides data privacy and security provisions for • Proper use of equipment safeguarding medical information. • Documentation • Communication • Legal and ethical standards • Medication administration/treatment • Maintenance of privacy • Importance of patient confidentiality

Issues Of Consent Advance Directives

• Types of Consent • Living Will – General, implied, informed • Competency Issues – capacity • Natural Death Act

• Treatment Without Consent • Durable Power of Attorney for

• Patient Self Determination Act (PSDA) • Elements of consent • Do-Not-Attempt-Resuscitate Directives • Nurses Role in Informed Consent

Documentation Documentation

• Purposes • Electronic vs. paper? – Legal document required by state laws & regulations – Means of communication to ensure continuity of care • The (EHR) – For education and research – Advantages: legible, available across settings, standardization, – Substantiate insurance reimbursement claims minimize risk of lost information, improve medication safety, audit – Evidence in legal proceedings to establish whether or not care trails rendered met the legal standard of care – Disadvantages: real time or documented time, downtime risk, rote clicking/data input, copy/paste risks, hybrid records, patient/data association errors, expensive

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Top Issues in EHRs Documentation Tips

• Incorrect information – 20% of cases • Know rules/regulations related to privileged data, • Hybrid health records/EHR conversion issues – 16% confidentiality, disclosure • Systems failure – electronic routing of data – 12% • Know HIPAA requirements concerning privacy, confidentiality, • Pre-populating/copy and paste – 10% security of medical information • Failure of system design to meet the need – 9% • Enter information on the correct patient record! • EHR (user) training and/or education – 7% • Be mindful of need to communicate with patients while • Lack of integration/incompatible systems – 7% entering data into record – don’t ignore the patient! • EHR-related user error (other than data entry) – 7% • Know the risks associated with copy and pasting information!

Other Issues/Risks

• Use narrative notes when you need to clarify/amplify on your • Patient safety events (incident reports) documentation • Check spelling in your narrative entries – Document the event objectively in the patient record • Always sign out when you complete your documentation or you are leaving – Complete the safety report per institutional requirements the bedside (not in your view) • Recognize risk of relying on technology instead of your critical thinking • Phone calls skills – THINK – Document calls per EHR/institutional requirements • Never share your name or password • Verbal orders • Inform leadership if you think your identity/PW has been compromised • Be aware patients are asking for access to records (to add to, amend, or – If allowed, follow institutional requirements correct information

Patient Relations Major Issues That Result in Charges Against Nurses

• Never underestimate the value of patient relations/clinical risk • Failure to follow standards of care staff! – Failure to completely assess patients, adhere to standardized protocols or policies, or follow prescribers’ orders, both written & oral • Communication is key

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• Failure to use equipment in a responsible manner • Failure to communicate – Failure to follow manufacturer’s recommendations for operating the – Failure to notify a physician in a timely manner, listening to what the equipment, to check the safety of equipment prior to using it, or patient is really saying and responding appropriately, ineffective learning how to use the equipment properly communication, or failure to seek higher medical authorization for a treatment

• Failure to document • Failure to assess and monitor – Failure to note in patients’ medical records their progress and – Failure to complete assigned tasks on yoru shift, implementation of response to treatments, injuries, pertinent nursing assessments, and plans of care, observation of patients’ ongoing progress, and orders or information received in telephone conversation interpretation of patients’ signs & symptoms

Social Media

• Failure to act as the patients’ advocate • Use of phones, other devices in patient care areas – Failure to questions discharge orders if the condition of the patient requires it, to question incomplete or illegible orders, or to provide a • Sharing information – risks of FaceBook, Instagram, Twitter, safe environment for your patient etc.

• Consider your practice – protecting you and your patients!

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Phases of Litigation

• Pretrial preparation • Procedural process The Legal Process – Prelitigation Panels • Process

Depositions Nurse As Expert Witness

• Practical Tips for Depositions • Requirements – Be PREPARED! – Clinical practice in the setting – Review relevant hospital records • Responsibilities – Educational background, professional experience, specific job duties – Review and comment on the case – Under oath, be truthful even if damaging – Don’t guess, get facts straight • So what does the expert do? – Answer only what you know – Read case documents, form opinion, comment to attorney, be – Be careful with remarks “off the record” deposed, attend proceedings – Appearance, articulate • Why serve as expert? – Review, sign transcript – Learning experience, support colleagues, extra income

Professional Liability Insurance

• Types – Occurrence – Claims made

• Do you need liability insurance? TIPS TO REDUCE YOUR LIABILITY AS A PERIANESTHESIA NURSE

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Document nursing care Communicate with caregivers

Audit your nursing records Show kindness and respect

Monitor the patient appropriately Follow the chain of command with problems Delegate patient care wisely Defend the patient!

Know policies and procedures and Respond quickly to emergencies follow them

Stay current!

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References

• Clausen E. (2018). Defending the Electronic : Challenges Use common sense - go with your gut! and Approaches. The Journal of Legal Nurse Consulting, 29(2): 33-39. • Clifford T. (2013). Informed Consent – Role of the Perianesthesia Nurse. Journal of PeriAnesthesia Nursing, 28(6):413-414. • Ferrell K. (2016). Nurse's Legal Handbook. Philadelphia, UNITED STATES: What’s best for the patient (and you)? Wolters Kluwer Health. • Walker J. (2018). EHR: A MedMal Minefield for Practitioners? Journal of Legal Nurse Consulting, 29(2):9-13. • White DS. (2018). Defending the Electronic Medical Record: The LNC Perspective. The Journal of Legal Nurse Consulting, 29(2): 33-39.

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