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Employee Actions

Hospitals, like other employers, are liable for the negligent injuries that their employees cause. This liability stems from the employer's duty to direct and supervise the employee's work. The major area of liability for hospitals is the nursing staff.

Most courts now divide nursing services into hospital-supervised activities and physician-supervised activities. Physician-supervised activities legally fall under the borrowed servant doctrine, but this is no longer a complete shield from litigation. There is now a duty for the nurse to behave in a reasonable manner despite physician orders. The hospital is responsible for hospital-supervised activities, although the employees still have personal liability for their negligent actions.

The recognition that there are hospital-supervised activities that are independent of physician control has followed from the recognition of nursing as an independent profession. This has destroyed most of the basis for the physician's workshop view of hospitals. It is now recognized that nursing care is a primary function of hospitals. Nursing care is not limited to following physicians' orders. It involves independent, health-care decision making. In the case of the most intensive care or critical care nursing, the distinction between practicing medicine (exercising independent medical judgment) and nursing has become totally blurred. Nurses now make independent judgments, in some cases clearly assuming responsibilities that traditionally rested with physicians.

An example of this is the shifting of responsibility in the operating room. As a variant of the borrowed servant doctrine, the captain-of-the-ship doctrine held the surgeon responsible for the actions of all operating room personnel, including the delivery of anesthesia and all nursing tasks. One of the most important nursing tasks in surgery is keeping track of how many instruments and sponges are used. This is important because it is very easy to leave things in a patient. Nurses have always been responsible for performing this count. Traditionally this was done under the surgeon's direction, and the surgeon was responsible if anything was left in a patient. Most hospitals, in trying to develop proper controls on nursing duties, established guidelines that specified when and how sponge counts were to conducted. More importantly, they removed the surgeon's option not to conduct the count. While the effect of the guidelines was negligible (they only mirrored established practices), they provided the basis for most court rulings that counting sponges is a hospital function. If the surgeon would not be liable for the missed count. This is an example of the shift in the legal perception of nursing and of the recognition that in many areas there is now a shared responsibility between physicians and nurses.

The major legal consequences of the recognition of nursing as an independent profession has been the establishment of the nurse's duty to review certain physician actions. For example, part of a nurse's training includes instruction in the dosages and routes in administration of commonly used drugs. The nurse has a duty to determine if the physician's drug order is reasonable. This does not mean that the nurse is allowed to decide that one drug would be better than another. It means rather that, if a physician orders an improper dosage, an inappropriate form, or an otherwise unacceptable drug, the nurse should not follow the order. Recognizing the incompatibility of the drug form and the route of administration is within the nurse's area of competence. The nurse's duty extends beyond simply not following the inappropriate order. The nurse must bring the inappropriate order to the attention of the supervisor so that a proper order may be obtained.

The issue of how the nursing staff deals with inappropriate physician orders is an important part of a quality control program. The first step is to double-check the order with the physician who wrote the order. If this is done by telephone, the order should be read to the physician to determine if it is understood correctly. If the order is correctly understood, the nurse should discuss the specific problem with the physician. If the physician does not feel that the order should be change, the nurse should contact the nursing supervisor. The supervisor may decide that the order is proper and instruct the nurse to carry it out, or the supervisor may agree that the order is incorrect. Under no circumstances should the nurse be criticized for questioning the order. It is extremely important not to discourage employees from reporting potential problems.

If the supervisor agrees that the order is questionable, it will be necessary to seek the opinion of another professional. In questions concerning drugs, a good choice is the hospital pharmacist. Most larger facilities have a pharmacist on 24-hour duty. Smaller facilities may make arrangements with a 24-hour drugstore to use its pharmacist as a resource person. Since it is not necessary that the pharmacist be nearby, even remote facilities could arrange for a pharmacy in a city to handle questions on some type of fee basis. In teaching hospitals with 24-hour house staff coverage, it may be possible to ask a resident about the problem. If the resident or pharmacist agrees that it might be dangerous to carry out the order, the hospital administration must become involved in the problem.

A nurse is a professional and should refuse to carry out a questionable order. At the same time, nursing personnel should never be allowed or required to change a physician's order on their own initiative. This is as important in private clinics as it is in hospitals, because in both types of facility it will lead to insoluble conflicts between nursing staff members and medical staff members. If a nurse injures a patient by intentionally changing an order, it will also put the facility in a legally indefensible position. The facility must provide a mechanism for reviewing potentially hazardous physician orders. However, an order should not be overruled simply because it is not the best possible order or because some physicians might disagree with it. The criterion for overriding an order must be that the order is medically incorrect and dangerous to the patient. (The issue of whether the physician has sufficient skill to care for the patient is a separate matter that will be discussed later.)

In a hospital with a regular call schedule, it should be the duty of the physician on call to review questionable orders. If this is the same physician who wrote the order, the person on backup duty should be contacted. In a teaching hospital, a staff member should be contacted to review orders. The procedure for reviewing an order should be the same as the procedure for requiring a consultation in complex cases. If the reviewer is unable to persuade the treating physician to change the order or is unable to contact the treating physician, the administrator has three choices: have the reviewer change the order (or delay it, if medically feasible), let the order stand, or present the problem to the patient and let the patient decide (this would not be acceptable if the order is clearly dangerous). The choice of action should be guided by the best interests of the patient. The review protocol should be specifically addressed in the medical bylaws, and the bylaws should spell out the procedures and criteria for changing an order. Once the bylaws are adopted, the members of the medical staff are bound by them, making resolution of these dilemmas much simpler.

If the medical staff bylaws do not provide a mechanism for changing inappropriate orders, the reviewing physician and the administrator much decide on what course to follow. Legally, the best course is to discuss the matter with the patient, explaining the problem and the medical advantages of the change. The treating physician may be upset by this, but this is preferable to risking a patient injury. Choosing to carry out the original order is legally the most dangerous course. If the patient is harmed by the therapy, it will be very difficult to explain to a jury why it was carried out in the face of several contrary opinions. IF the order is changed without discussing it with the patient and getting proper consent and the new order is harmful, there may be an action for battery. The original consent to therapy does not necessarily flow to a reviewing or consulting physician. If the decision is to change the order, whether it is discussed with the patient or not, there should be thorough documentation of the reasons for the change. These should be detailed in the medical records and in an incident report. If there is a legitimate basis for the change, careful documentation should shield the provider from liability (in the absence of negligence). Under no circumstances should the hospital intentionally submit a patient to a serious risk.

A nurse who knowingly carries out an incorrect order can be held personally liable for negligence. If a nurse independently initiates care that is harmful to the patient, the nurse is also personally liable. In the first case, the hospital and the physician would also be liable. In the second case, only the hospital would share liability as the nurse's employer. The nursing protocols should clearly delineate which tasks are nursing tasks and which tasks require independent medical judgment and may not be initiated without specific orders from a physician. This delineation of tasks must include two protections: (1) nurses must be reassured that in life-threatening emergencies they need not withhold care but may see to the patient while a physician is summoned, and (2) the hospital must be able to provide physician services if a patient is abandoned by the treating physician.

A companioned problem is the absence of an order. The nursing staff has a duty to monitor the patient's condition and to report relevant information to the physician through entries in the nurses-notes section of the medical records. If there are acute adverse changes in the patient's condition, there is a duty to report these changes directly to the physician. This does not discharge the nurse's duty to the patient; there is also a duty to see that proper care is provided to the patient. If the attending physician ignores the nurse's complaints or is unavailable and has not assigned the care of that physician's patients to a colleague, another physician must be called in to see the patient. In a teaching hospital, house officers are available to treat the patient. In other hospitals, there must be provisions for providing care when the attending physician is absent or abandons the patient.

The most common problem is that of the attending physician being called away on legitimate business. It is not unreasonable to tell a patient that patient's physician is temporarily absent because of an emergency. The patient will have no reason to be upset by this and should readily consent to being cared for temporarily by a different physician. If the absent physician has designated another physician to care for the patient and the patient was forewarned of the delegation, there is no legal need for a new consent. If the patient was not forewarned, it is better to get a separate consent for treatment.

The abandoned patient is more difficult to deal with. A patient has been abandoned when that patient's physician ceases to provide medical care. The hospital then must arrange for another physician to evaluate the abandoned patient. If the patient who requires additional care must accept the care of another member of the medical staff or transfer to another facility. However, a patient cannot be transferred unwillingly; neither may a patient be transferred to a facility that will not accept the patient. The hospital must not attempt to transfer a patient without the authorization of the receiving facility. If the patient refuses treatment from a substitute physician and a satisfactory transfer cannot be arranged, then legal help must be obtained. The hospital must ask a court to determine if the patient should be treated against the patient's will or if the hospital should abide by the patient's wishes and withhold care.

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