ALEXANDRIA, VaAlthough nurses traditionally have not been sued
individually for malpractice, changes in technology, medical
practice, and medical economics have made them increasingly
vulnerable to being named in litigation, according to Susan B. Fink,
RN, JD, an attorney with Koskoff, Koskoff & Bieder, PC, of
Addressing a nurses special interest group at the 25th Annual
Meeting of the Association of Community Cancer Centers (ACCC), Ms.
Fink noted that inappropriate referral or failure to refer is a
growing area of litigation, and of vulnerability for nurses,
especially as managed care organizations attempt to limit referrals
and nurses or nurse practitioners play a greater role in triage and
referral. Failure to diagnose a cancer or other illness can
also trigger suits involving nurses, Ms. Fink said.
Health care professionals have an independent duty to the patient
regardless of the rules of any managed care organization, Ms. Fink
noted. When managed care organizations refuse to provide appropriate
referral or treatment, providers need to challenge
carriers, she said.
Nurses also have an independent legal duty to intervene on the
patients behalf when they believe the patient is not receiving
appropriate care. In situations involving a difference in
professional opinion between, for example, a nurse and a physician
who the nurse believes is acting inappropriately, there have been
many cases, she said, of litigation questioning whether
the nurse was persistent or convincing enough in pressing her views
to authorities such as the hospital nursing supervisor or a
Other growing areas of vulnerability, Ms. Fink said,
are underuse of pain medication for cancer patients and
inadequate training and education of home care workers, an issue that
is increasing in importance as patients spend less time as
Regarding pain care, studies have found that up to one-third of
physicians are reluctant to use opiate medications for chronic pain,
and up to 42% of cancer patients lack appropriate treatment for pain.
Here, again, nurses have a duty to intervene in the patients
In answer to a question from the audience, Ms. Fink said that a nurse
who, because of understaffing, finds herself in a situation she
believes is unsafe for patients has a very difficult
problem. Some states provide safe harbor for nurses who declare that
they find such a care situation dangerous, but others do not.
Lawsuits ultimately serve to bring change in unacceptable
policies, she noted, when litigation hurts the pocketbook
sufficiently. Suits over informed consent, for example, were
once quite common but are now rare.
Managed Care Plans Are Exempt
Health care personnel remain vulnerable to malpractice litigation
even though federal law exempts managed care organizations from such
vulnerability under the provisions of ERISA, she said.
Ultimately, this is going to change, she added, but
its up to health care providers to change it.
To avoid malpractice problems, Ms. Fink recommends that nurses keep
their training and skills up to date and become familiar with their
institutions policies. If a nurse suspects that she has
committed malpractice, the concept of mitigation of damages
encourages doing what you can to fix it, she said.
Professionals who carry their own malpractice insurance, however,
have a duty to report any possible incidents to their insurance
company. She also said that nurses should be careful to document
events at the time that they happen.