If a nurse believes that orders given her by a physician do not follow hospital policy, how can she resolve the conflict? This question was posed recently on the website, Medscape, by Carolyn Buppert, a healthcare attorney who holds a MSN (Master of Science in Nursing) and has known many nurses who have had to make such choices.
If there are two valid arguments for two different ways of treating a patient and the attending physician orders one way and the nurse believes it should be done another way, the physician wins, according to the experts. The nurse may voice his or her opinion and try to persuade the physician, but only if an action is clearly erroneous or potentially dangerous, should he or she refuse to follow the order.
Many recommend the nurse page or call the doctor and tell the doctor why they feel they cannot follow the order. If the doctor is present, and he or she is the attending physician supervising the nurse, the physician could be liable for anything that could become an issue of negligence.
If the personal notification to the doctor does not persuade him, the nurse should contact the charge nurse or her supervisor. The hospital policy may need to be rethought, or perhaps the hospital has more justification for the order than the physician. Or, it is possible the doctor may not realize there is another position on the issue. If the nurse speaks to the supervisor, there is someone to back up how the nurse responded to the order and why.
Any refusal to follow a physician’s order must be based on evidence and standard of care, not just opinion. A nurse needs to know the Board of Nursing standard of care for nurses in her state.
Sometimes the conflict comes into play with a simple order from the doctor, such as, “Enter my order into the computer.” The hospital may want the physician to enter his own orders on the premise that patient safety is better protected if the doctor enters his own orders. The nurse who follows the doctor’s order and enters the information risks making a mistake from inadequate communication, being accused of exceeding his or her scope of practice, and violating hospital policy.
Nurses are sometimes asked to perform procedures on the patient such as removing a chest tube when hospital policy requires a physician or advanced practice provider to perform these procedures. The nurse should decline the physician’s order but should also let her supervisor know about the request and why she turned it down.
The California Court of Appeals considered a case in 2008 where a nurse refused to intubate (put a tube into a patient to open an airway) because the patient was not in the Intensive Care Unit (ICU). Hospital policy required patient intubation in the ICU. An intern who had been practicing for two weeks ordered the patient be intubated in his room. The nurse, who had 20 years of experience, told the intern that the patient needed to be taken to intensive care to have the procedure performed.
She took the conscious patient to the ICU, five minutes away, and the intubation was done there. The man died about 30 minutes after the procedure was completed. The physician reported the nurse for countermanding a physician’s order. The hospital fired her and the California Board of Nursing charged her with unprofessional conduct and incompetence.
After losing in a Board of Nursing review of the matter, the nurse sued asking the trial court to reverse. She argued that the ICU was a safer location to intubate because more resources are available than in a patient’s room. The trial court affirmed the Board’s decision and an appeals court affirmed the lower court holding that a nurse must follow a physician’s order unless the order is erroneous or dangerous. In this case the physician’s order was reasonable, the court ruled. (Finnerty v. Board of Registered Nursing, http://caselaw.findlaw.com/ca-court-of-appeal/1042767.html).
Although physicians remain the main targets of medical malpractice lawsuits, malpractice suits against nurses are on the rise. From 2000 to 2009, about two in every 100 medical malpractice claims were against a nurse either specifically or as an employee of a hospital.
According to the Journal of Patient Safety between 210,000 and 440,000 people suffer some kind of preventable harm in a hospital each year. Nurses are being sued for:
· failure to follow standards of care
· failure to assess and monitor
· failure to communicate
· failure to document
· failure to act as patient advocate or follow the chain of command
· negligent or inappropriate delegation and supervision
· failure to use equipment responsibly
· working while impaired (by fatigue or use of controlled substances), and
· medication errors.
Nursing responsibilities have expanded as physicians spend less time with patients and rely more on nurses to follow through on changes in the patient’s condition.
In a 2010 decision regarding a nurse’s fiduciary relationship with a hospital, Ohio Supreme Court Justice Maureen O’Connor described nurses in Ohio as “persons of superior knowledge and skill.” (State v. Massien, 125 Ohio St. 3d. 204, 2010-Ohio-1864).
In general, a standard of ‘reasonable’ conduct implies a minimum standard of care. But, if a condition by its nature requires the application of knowledge and skill superior to that of the ordinary person, one who possesses that superior knowledge and skill and who fails to employ it for the benefit of another when their relation requires it, will he held liable for injuries proximately resulting from the failure. Such persons must use the care and skill reasonable in the light of their superior learning and experience, not simply a minimum standard of care. For those persons the relevant standard of conduct is ‘good practice.’ (Prosser & Keeton on Torts (5 Ed. 1984) at 185, 189, Section 32).
Doing or saying nothing when action is required may be the worst offense of a nurse on duty. Rita Kae Restrepo, a legal nurse consultant in California, says even when a physician decides to take no action, if the nurse knows something is wrong, he or she must request help from the charge nurse or the nursing supervisor and keep asking for help until the patient receives proper care.
Similarly if a nurse is monitoring a patient’s condition and notices something of concern, or should have noticed it, then the nurse could be liable for malpractice if he or she does not notify the attending doctor.
Laura Malmeister, an RN and risk management consultant in San Francisco, urges nurses to assume control. “Nurses who feel in control will call a physician repeatedly, even when they think the physician might get angry. Nurses who take control will tell a supervisor they can’t work a double because they feel exhausted or let it be known they cannot be interrupted when dispensing medications.
This article was written by Attorney James W. Slater of the Akron, Ohio law firm of Slater & Zurz LLP.
** This blog is written by a private citizen who has no connection to the Akron Beacon Journal or Ohio.com. In no way does what they write reflect the opinion or views of the Akron Beacon Journal or Ohio.com. We do not edit or censor these blogs. The views and opinions belong to the author of this blog. We invite you to comment on their postings.