With Managed Care, Nurses Face Greater Exposure to Liability

ALEXANDRIA, Va—Although 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 Bridgeport, Conn.

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 patient’s 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 department head.

“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 inpatients.”

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 patient’s interest.

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 it’s 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 institution’s 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.