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Legal Issues in Critical Care

Monday January 13, 2003
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"WHEN I FIRST BECAME A CCU nurse, my hospital didn't have a risk manager," says Pamela Drake, RN,* "Legal matters weren't even on the radar screen." Now when Drake attends conferences for continuing education credits, she tries to make sure they include legal topics. "Unfortunately," she says, "it's part of practicing [nursing] these days."
Any number of legal issues can preoccupy your precious time - documentation requirements; patients' rights; confidentiality rules; federal, state, and local laws; data bank reporting; and civil litigation - just to name a few. But as professionals, knowing the law is part of meeting one's professional responsibilities, and it helps protect you and your patients.
End-of-Life Decisions
"The number one legal issue for critical care nurses is the end-of-life decisions, the type of measures [patients] want taken to preserve their lives or to end their own lives," says Susan Burns, RN, ARNP, JD, claims manager, Medical Professional Liability Claims, Chicago Insurance Company, Chicago, IL. It's the nurse at the bedside who's usually faced with the situation.
A leukemia patient admitted to the ICU with respiratory distress refused intubation. She wanted to be allowed to die. Family members, however, wanted "everything" done. As the patient's respiratory difficulties worsened, she became confused and disoriented. Because of the patient's mental status and the disagreement over treatment, a judge was contacted to appoint a healthcare proxy. The patient's oldest sister was chosen. When it came time for a decision, the sister didn't override what the patient wanted. But, it could happen.
"We need to determine if the person coming into the hospital has a living will, and if not, find out if they want one," says Devorah Overbay, RN, MSN, CCRN, critical care clinical nurse specialist, Oregon Health & Science Center, Portland, OR. Family members, says Overbay, need to talk to the patient to find out who should be the healthcare proxy in the event the patient can't speak for himself, which is often the case by the time he or she is in the ICU. The goal is to make sure you know the patient's wishes before getting into that situation.
A patient who suffered a CVA with significant mental and physical impairments was brought to the ICU. The nurse taking care of her believed she had "do not resuscitate" (DNR) orders, but wasn't sure. When the patient went into cardiopulmonary arrest, the nurse left to check the chart. Not finding any information there, she called the attending physician and learned that the patient had no advance directives and should be resuscitated. By that time, however, efforts were unsuccessful and the patient died.
In another situation, a patient with end-stage cancer was brought to the ED by ambulance. On arrival, he went into respiratory arrest. After successful resuscitation, he was placed on a respirator. Family members complained he had DNR orders from a prior hospitalization.
The reality is that healthcare providers in both cases could (and did) get sued. The best you can do for your patient and yourself is -
understand your state law and institutional policy
know, to the extent that you can, the wishes of your patient and family
discuss their wishes with the patient's attending physician
make sure there are clear written orders
Professional Negligence
According to a 2000-2001 poll of its members by the American Association of Critical-Care Nurses (AACN), 48% documented that medication errors occur "sometimes" and 24% documented that they occur "often."
"Medication errors are one of the top issues that we see for nursing claims in general," says Burns. While there is nothing to suggest the error rate is higher for critical care nurses, the consequences can be more devastating, and, consequently, the liability risk is higher. The medications themselves, the route, and the dosage can cause more dramatic adverse reactions. And critically ill patients don't rebound as well.
An ICU patient who was allergic to lidocaine was given pontocaine instead when he went into cardiopulmonary distress. The nurse, unfamiliar with this alternative medication, gave it intravenously. As the drug was intended for subcutaneous administration only, the patient rapidly received a large overdose. Resuscitation efforts failed. In a lawsuit brought by the patient's family, it was claimed that, if not for the medication error, he would have survived.
How medication errors are handled varies from institution to institution. Parkland Health and Hospital System in Dallas, has chosen a nonpunitive reporting system. "A medical error is no longer held against [a nurse's] performance as long as it's not a repeated event," says Michael Ainsworth, RN, CCRN, CEN, unit manager of Parkland's CCU. If no harm is done to the patient, the physician is notified, and the nurse self-reports - it's considered an educational opportunity.
Nursing Staffing and Liability
In New York, it's estimated that by 2005, there will be a shortfall of 17,000 nurses, a gap that will double in 15 years. "The greatest shortage," says Johanna Duncan-Poitier, deputy commissioner for the New York State Office of the Professions, "is in the area of critical care, the critical care nurse, the ED nurse - those who provide the most intensive patient care delivery." No surprise to anyone working in critical care. It should also come as no surprise that once the shortage affects the quality of care, it's also a potential liability issue.
"Making sure we have the appropriate number of nurses for the patients based on the severity of illness is something we struggle with every day," says Jessica Palmer, RN, MSN, board of directors, AACN. "You always run the risk," she adds, "that when you don't have enough nurses, something happens to one or more of those patients." Unfortunately some of the temporary relief measures, such as the use of "floats" and outside agency nurses, potentially can increase the risk not only for the nurses themselves, but the managers who can be held liable for improper assignment and inadequate supervision. You can try to protect yourself (and your patients) by seeking corrective measures and communicating staffing problems to administration in writing.
An ICU patient with head trauma was transferred to the radiology department for a CT scan by his nurse, who then returned to the unit to care for another patient. During the scan, the patient's inadvertent extubation wasn't noticed until the study was completed. Hospital policy required all ICU patients to be accompanied to radiology by a nurse, who was to remain with the patient until the procedure ended. In this case, the nurse was an agency nurse who wasn't familiar with that protocol.
Another consequence of the shortage with potential legal ramifications for nurses and supervisors is the change in the level of experience that nurses have when they enter the critical care units. "Four years ago, you had an MICU where everyone had five years or more of experience," says Palmer, "so that group has a very different ability to think critically, manage unusual situations, and adjust to the kind of situations that may occur. Now you have a group of nurses - 30% to 40% - with one year or less, or two years or less, experience." That change in the mix, says Palmer, can really alter the ability and the flexibility of care delivery.
When Overbay of Oregon Health and Science Center, Portland, OR, first started out in critical care, new nurses weren't hired into the ICU until they had at least three years of med/surg experience. Now, nurses are hired straight out of nursing school.
"That's been propelled by the nursing shortage," she says. Particularly in critical care, problem-solving, prioritizing, and assessment skills develop over time. "You like to have [these skills] before you get in there, but we don't have that luxury."
Joan Sosin, RN, JD, is an attorney who specializes in health and legal issues in nursing and is a frequent contributor to Nursing Spectrum.
*Name has been changed
This article does not provide legal advice and is not intended as legal counsel or advice. Should they feel it necessary, readers are encouraged to seek legal counsel regarding the issues and information contained in this article.

End-of-Life Documents
The Patient Self-Determination Act, part of the OmnibusBudget Reconciliation Act of 1990, requires patients be given information about their rights so they can make treatment decisions, including the right to accept care or refuse it. Under this federal law, patients are entitled to information about living wills and durable powers of attorney for healthcare.
A living will is a document in which a person with no reasonable expectation of recovery states what medical treatment he or she wants to refuse and that he or she be allowed to die rather than be kept alive by artificial means. It's difficult, however, to anticipate all treatment decisions and some courts don't recognize living wills as binding. Check the laws in your own state.
A durable power of attorney appoints a healthcare proxy to make medical decisions when you are incapacitated and legally incompetent to do so. While a living will is often considered mere "guidelines," the healthcare proxy has the legal authority to enforce the patient's wishes. Laws governing both of these devices vary from state to state. Questions concerning interpretation or validity require a legal opinion, and sometimes, judicial intervention.

A Few Simple Steps
1. Know your institution's policies and procedures. If your institution doesn't provide copies of all updates to staff, suggest it.
2. Be aware of new and proposed legislation and regulations affecting healthcare. You can find such legislation on state and some local government websites.
3. Consider purchasing professional liability insurance. Although most institutions provide coverage for their employees, it's unlikely to protect you in the event of claims for acts/omissions outside of your employee responsibilities. Separate coverage also can pay for legal representation in a licensure action, something an institutional policy may not cover. Independent contractors (private duty or agency temps) are usually required to purchase their own policy. According to Joan O'Sullivan, managing director of Marsh Affinity Group Services in Park Ridge, IL, a critical care nurse will pay as little as $89 annually for coverage in the amount of $1 million per claim and $3 million for all claims in one policy year. And, you may be eligible for discounts.
4. If some incident should occur, seek legal advice from someone well-versed in the subject matter. Keep in mind that your hospital's attorney represents the hospital. You may need your own counsel when a conflict of interest exists.
5. Attend conferences, even if your state does not require continuing education credits to keep up with clinical and legal issues.