Nurses and Medical Malpractice

By Bari Faye Siegel

To err is human, right? We all make mistakes, apologize and, hopefully, learn from our failures. However, some mistakes result in irreparable consequences. Nurses know this all too well. In a healthcare facility, when the best intentions are overshadowed by a simple error, even the most sincere of apologies won’t stop a patient from legally pursuing compensation for pain and suffering, medical bills and future care, and lost pay. 

For a nurse, who may have only been following doctor’s orders, a medical malpractice charge can be a nightmare. A negligence lawsuit can result in loss of professional license, hefty fines, possible civil penalties, and even jail time.

Assess the Damages & Refuse to Incriminate Yourself

First things first: you have to know what you are up against. Call it legal triage. A qualified criminal defense attorney with significant experience representing healthcare professionals accused of medical malpractice will determine the scope of the charges, the potential legitimacy of the claims, all of the people who bear responsibility for the errors (because it’s highly unlikely you were the only person involved!) and what consequences, if any, you may be facing.

Further, nurses are known for their amazing ability to work well under pressure. If you’ve been slapped with a med mal lawsuit, you would be well-served to call on that skill as soon as possible. It’s important to realize that when someone says, “lawsuit,” everyone immediately begins to play the blame game. If you find those fingers pointing straight at you, Boston criminal defense attorney Jeff Denner (dennerlaw.com) advised that you “protect yourself.”

A nurse has the right to decline to speak with his or her employer or their representatives (the healthcare facilities administrators, lawyers, or insurance carriers), anyone else on the staff and even the patient alleging negligence. Denner cautioned: “The healthcare facility, be it a hospital, nursing home or doctor’s office, will be looking to minimize their own liability. They will immediate try to blame you for any mistakes that were made. Protect yourself. Your attorney is the only person who is looking out for your best interests.”

Denner added that a charge of medical malpractice against a nurse can turn into a labor issue, a civil case, a criminal issue, and even a medication-related issue that would get the attention of the U.S. DEA. “A good defense attorney will define the scope of your problem before they do anything else. Everyone else’s agenda shouldn’t be yours. Your destinies are not the same.”

What if your employer threatens to fire you if you don’t talk? “What’s worse? Being unemployed or in prison? You can answer their questions, at some point,” Denner noted, “with your lawyer present.”

Look at the Bigger Picture; Negligence Isn’t About One Moment in Time

Paul Weber, partner at Hyatt & Weber, P.A. (hwlaw.com) in Annapolis, MD, is a plaintiff’s attorney who, from the other side of the table, offered some advice for nurses. He said the most significant medical malpractice cases do not result from just one situation. “Negligence arises out of a cascading set of events. At any point, one person can stop the problem from getting worse. A nurse’s failure to pay attention, however, can make the situation go from bad to disastrous.”

Therefore, as a nurse, it’s your duty to make sure you understand the doctor’s orders and not be afraid to question something that doesn’t sound right or that you don’t understand. For example, Weber pointed to a case where the nurse on duty noticed the patient’s blood pressure was dropping. She alerted the doctor, who told her not to worry about it. Regular blood pressure checks revealed the problem was persisting, but the nurse took an “I did my job and told the doctor” approach. She didn’t tell anyone else on the floor about the problem. The result? The patient is now blind because the decreasing blood pressure caused permanent damage to her optic nerve. 

“As a nurse, your duty is to the patient, not to make sure you don’t step on anyone’s toes,” Weber said. “If you feel the patient is not responding to doctor’s orders and, in spite of your best efforts to alert the doctor to the problem, they put you off (or tell you they will check in on the patient later or on rounds), you have a duty to take the problem up the chain of command. A nurse doesn’t work in a vacuum. Don’t be afraid to step up, especially before it’s too late. If you see a problem, or know that an error has been made, say something as soon as possible.”

Document Everything. Always. Every Day.

Roy Konray of Team Law in Clark, NJ (teamlaw.com), began his career as a defense attorney and now represents people who have been injured by the negligence of healthcare practitioners. As a plaintiff’s lawyer, when he’s investigating a case of alleged medical malpractice against a nurse, he heads straight to the medical charts. 

If real estate is all about “location, location, location,” the three most important things in the practice of good medicine are “documentation, documentation, documentation,” Konray said.

“As a nurse, you are usually the team’s first line of defense when a problem arises. You know when something unusual is going on,” Konray noted. “Your first duty is to protect the patient. To do that properly, you need to document everything. Take notes on every doctor’s order and document every conversation with anyone involved in the care of that patient.”

A mistake in a chart, Konray said, is the “Holy Grail of evidence in a medical malpractice case.” When a nurse keeps accurate records, there’s a paper trail (or electronic data record with timestamp) of every single thing that was done with regard to each patient. The records can never be too complete. 

Konray recalled: “I had a case where a baby was born and there was an apparent birth injury. When we compared the baby’s documentation with the same sheet in the mother’s chart, we saw that information was added after the fact. That’s great evidence of negligence.”

Documenting each order and every single conversation will help you, the nurse, protect yourself, as well. “You need to be able to recall, at a moment’s notice, what the doctors asked for, what they said, and how they reacted to something,” Konray cautioned. “As the nurse, it’s part of your job to document everything. If you don’t, liability for a mistake may fall on you.”

The bottom line: while it’s not necessarily the nurse’s job to make decisions, it is their job to communicate information and document everything. Errors made in the operating room, errors made with regard to medication, or failure to properly monitor a patient, can all have life-altering – even deadly – consequences for people who rely on nurses to do no harm.

Bari Faye Siegel is the director of content strategy at NextLevel Web Strategies. Based in Princeton, NJ, NextLevel is a boutique digital marketing and website development firm dedicated to helping professional service providers in the healthcare, legal and financial sectors grow their businesses through a vibrant online presence. She can be reached at bari@nextlevelmail.com