Reduced Resources and Liability Risks


By Pat McLean, Executive Director

Cost-containment strategies have meant the loss of many registered nurse positions in health care facilities across Canada. Nurses are concerned about whether there will be enough adequately prepared professional health care staff to ensure safe, competent care consistent with professional nursing standards. Fears have arisen that substituting unregulated health care workers for nurses may pose a risk to the public that will lead to more lawsuits against nurses.

These are legitimate concerns. As one author points out, it is anticipated that hospitals, physicians and various levels of government will all be exposed to liability when cost-cutting measures result in a reduction of the quality or quantity of patient care, but those health care providers closest to the patient will initially bear the brunt of any legal liability resulting from inadequate resources. 1

This prospect raises two questions: to what extent will nurses be held legally accountable for outcomes that are the result of cost-cutting measures over which they have little or no control; and what, if anything, can nurses do to reduce the likelihood of becoming the targets in litigation arising out of reduced resources?

While nurses bear a professional, legal and ethical responsibility for patient safety, the ultimate legal responsibility for patient safety rests with their employers. Institutions also bear the risk of direct liability for their own negligence as corporate entities. Among other things, health care facilities have a duty of care to the patients in their facilities with regard to safety - including the selection, training, supervising and monitoring of staff. Where patient injury can be linked to institutional resource rationing, hospitals may be held responsible. 2

In Jinks v. Cardwell, a psychiatric patient drowned in the bathtub as a result of a hypotensive response to his medication. The trial judge found the hospital directly negligent because it fell below its duty of care to safeguard a patient in several ways, including inadequate staffing. "There were only two nurses, one RN and one RNA, on duty to handle 33 mentally ill patients. At shift change time, 07:00 to 07:30, one of these nurses was required to be, and was, in an inner office preparing reports, and was unable to involve herself in patient care or supervision." 3

Cost-containment strategies are now a fact of life. The challenge is risk containment: how to strike a balance between cutting costs and avoiding unsafe situations that could result in harm to patients and potential litigation. Can nurses realistically do anything to reduce the risk of harm? The answer is yes. Implementation of risk-management strategies depends almost entirely on RNs. These strategies include: patient assessment, communication of patient assessment, identification of risk, notifying management of resource-related risks, notifying physicians of treatment-related risks, planning and co-ordinating care including delegation of tasks to other workers, determining appropriate orientation and education for new staff and support workers, and providing appropriate supervision in conformity with professional standards and institutional policies.

To be effective, all these risk-management strategies require excellent communication with patients, management, physicians, colleagues, and co-workers. Once a risk is identified, it is the RN's responsibility through the exercise of his or her professional knowledge and judgment, to determine who should be alerted to address the situation. The most important way for a nurse to reduce liability is to ensure risk information is promptly reported to the appropriate person(s).

The situation may be addressed by nurses alone by reallocating existing resources such as shifting workload priorities, altering patient assignments, changing a care plan, or implementing other nursing or safety measures. Whatever the nursing decision, it needs to be documented and conveyed to all parties concerned including the physician and the patient or the patient's family.

When the identified risk relates to medical treatment it must be reported to the appropriate physician immediately. Failure or delay in reporting could leave the nurse liable. All relevant information should be thoroughly documented on the patient's chart--including which physician was notified and when. The physician's response should also be documented and conveyed to all relevant staff.

When the identified risk can only be addressed by facility management, such as equipment malfunction, inadequate equipment or staffing, the nurse must notify facility management of the problem. This may be done verbally or through established incident reporting mechanisms. Documentation of such reporting may protect a nurse in the event of a lawsuit by shifting the legal responsibility to the facility.

It should be noted that reporting safety risks does not reduce or absolve the nurse from the legal responsibility to carry out nursing duties to the best of his or her ability. In an Alberta labor relations case where nurses had submitted "professional responsibility forms" to the employer indicating unsafe situations for which the nurses disclaimed responsibility, the tribunal ruled that it is the duty of any professional, including a nurse, to do the best she / he can in the circumstances. A nurse's perception of unsafe conditions does not create a right to refuse instructions or disclaim responsibility for patient care. 4

The risk management challenge is heightened when experienced colleagues are replaced by nurses who are floated or bumped into areas where they have little or no experience, or by casual or relief nurses who lack the relevant experience. However, the safety risks in these scenarios are short-term and can be managed by providing adequate orientation in keeping with institutional policies.

While there is an onus on the employer to help the staff member become competent in the newly assigned areas, nurses, as professionals, also have a responsibility to upgrade their skills to ensure competency in a new situation by taking courses, taking advantage of continuing education opportunities and doing whatever is necessary to become knowledgeable in that area of practice.

The reduction of RNs is being offset in many agencies by an increase in auxiliary health care workers, both regulated and unregulated. Employers are insisting that many nursing services be delegated to these auxiliary workers. Again, patient safety is a concern when these workers lack the educational preparation necessary to fully comprehend all aspects of the nursing interventions they are being asked to carry out.

As physicians, dentists, pharmacists and others may delegate some of their responsibilities to nurses, so nurses may delegate nursing functions to others. Delegation is a legal necessity because of provincial/territorial legislation under which professionals are licensed. It serves to protect those to whom tasks are delegated from being accused of practising without a licence. The process of delegation should be governed by policies within a health care agency, and by guidelines established by nurses' professional licensing bodies. Not all functions are delegable. When in doubt, nurses should consult their professional practice advisors.

The person who is delegated a nursing function must receive appropriate training or education to ensure the function is performed competently. Supervision should continue until the delegating nurse is satisfied the person can perform the task safely without further instruction. The procedure should be charted on the patient's record by the person who carries it out, regardless of that person's professional status.

Conversely, registered nurses may be hired as auxiliary health care workers. In that event, the RN is obligated to follow the employing agency's policies and procedures for auxiliary health care workers in terms of the scope of functions performed. If the RN is prepared to assume that role, it is not legally prohibited but it could eventually lead to the loss of the nurse's licence to practice if the work is not recognized as nursing by the nurse's registering body. Situations may also arise that create conflict between the employer's expectations and the RN's legal and ethical obligations to a patient.

When an RN is hired in an auxiliary capacity, he or she remains an RN, regardless of the name given to the employment position. An employer cannot change a person's professional status. This means an RN working in an auxiliary capacity retains the legal and ethical responsibilities of an RN toward a patient. If this RN has concerns about a patient, something goes wrong or an emergency situation arises, he or she will be expected to meet the legal standard of care applicable to RNs; to respond to the situation as would a reasonable, prudent registered nurse.

Similarly, to avoid a lawsuit and/or the loss of licence to practise as a nurse, the ethical conduct of an RN in an auxiliary capacity must comply with the ethical standards established by the nurse's licensing body. If an employer requires an RN to act in a manner that is inconsistent with these legal and ethical standards, the nurse may have no option but to quit the job to protect his or her licence to practise as a registered nurse.

If you have concerns about the scope of your practice or delegation of nursing functions, you should consult your provincial or territorial practice advisor. For concerns about your legal liability, the Canadian Nurses Protective Society offers free, confidential consultation with a nurse lawyer.

References:

  1. Kryworuk, Peter W., Butler, Brian T., and Otten, Allyson L., "Potential Legal Liability in the Allocation of Scarce Health Care Resources," Health Law in Canada, Vol. 14, No. 4, p. 96.
  2. Rosenblatt, Rand E., "Redefining Administrative Liability," HMQ First Quarter 1990, p. 12.
  3. Jinks v. Cardwell, (1987), 39 C.C.L.T. 168 (Ontario High Court); (1989), O.J. No. 1492 (C.A.).
  4. Re Foothills Provincial General Hospital and United Nurses of Alberta, Local 115, (1989), 7 L.A.C. (4th) 359.

Note: This article has been reprinted with permission from Canadian Nurse, November 1995.

All articles appearing in this section are for information purposes only and should not be construed as legal advice. Readers should consult legal counsel for specific advice.

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