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Clinical contractual agreements: Liability or blessing?
Legal and Ethical Issues Clinical Contractual Agreements: Liability or Blessing? DURING A RECENT INTERVIEW, a candid a t e for a faculty position asked me the
following questions: "How many liability suits have the nursing students been involved in?" "What is the university's position regarding faculty and students carrying professional liability insurance?" "Does the university carry professional liability insurance for faculty and/or students?" As dean and as a member of a local hospital's quality assurance board, I grapple with liability issues regularly. Hospitals struggle to develop quality assurance programs and risk management departments, constantly questioning their impact on schools of nursing using hospitals in teaching clinical competencies. These questions and concerns reflect widespread professional and public concern about the liability crisis in which we currently teach and practice. Media coverage highlights the cost, in time and money, of malpractice. Ten thousand physicians appeared at the Michigan state capital to protest high malpractice and liability costs. Individuals claiming we are not in a liability crisis situation are either not knowledgeable of the situation, ignoring the insurmountable cost of insurance premiums and the high number of malpractice suits, or may be speaking out of self-interest. What is a school of nursing's protection? What protection does a university have if faced with a liability suit? I was confronted with these questions during a year-long process of updating and renegotiating clinical agency contractural agreements. My signature is on a multitude of contracts, contracts I wasn't sure I fully understood. The exploration I undertook to define contractual agreements taught me much about contract law, important lessons since the administrator of the nursing program must know the autonomy and rights of the university and the health care agency. Specifically, contract law is founded on four requirements: "1) the act to be contracted for must be legal, 2) the parties to the contract must be legal majority (of age) and competent to enter a legally binding agreement (free of mental impairment), 3) there must be an acceptance of the service to be contracted, that is, there must be a mutual agreement about the service to be contracted, and 4) there must be consideration or the promise of consideration."~ More simplistically, a contract is a legally enforceable promise between two or more persons to do (or not to do) something. As I further investigated the contractual responsibility of an institution, it became evident that the contractual agreement must be carefully thought through and clearly articulated among all parties to facilitate compliance, not prepare for litigation. When a contractual agreement is entered into with potential 138
litigation as its basis, an adversarial mindset has been established. "Liability for patient injury is seldom based on contractual obligation. Rather liability is generally based on the failure of the health care agency or its staff to meet the standard of care due to the particular patient:" What are the implications of this knowledge for nursing students placed in a clinical facility or the faculty member responsible for supervising eight to ten students? The primary fact which must be retained by students and faculty alike is that the hospital holds final responsibility for patient care. The hospital is legally responsible to the patient, and hospital sraffcan override student and faculty decisions about patient selection, patient care procedures, and the nursing care plan. Some legal experts maintain that when students give patient care they are, for legal purposes, considered employees of the hospital. Thus, students may be held liable with the hospital for their own negligence//'patient injury occurs. 3 Other experts disagree and maintain that a student is placed with an agency as part of their academic curriculum with nursing care being given under supervision and not as an employee. However, there is common agreement that faculty supervising students are particularly liable if negligence occurs while the student is performing a task that the student is not yet capable of performing consistently according to professional standards of care. Therefore, the nursing student is held to the standard of a competent professional nurse in the performance of nursing duties) Faculty must know whether or not a clinical contractual agreement exists between thek institution and the health facility. And, faculty must understand that they are responsible to the patient, the hospital and to the university for their students' conduct. This responsibility extends through all situations, even coffee breaks. In the final analysis, nursing faculty are expected to assure appropriate student performance while the contract between the clinical agency and academic institution protects and assures safe and competent care to all patients, within a legal framework of shared responsibility for all. ANDREAR. LINDELL,DNSC, RN
Dean and Professor School of Nursing Oakland University Rochester, MI 48063 References 1. Fenner KM: Ethics and Law itl Nursing. New Yozk, D. Van Nostrand, 1980, pp 94-95. 2. Hemelt MD, Mackert ME: Dynamicsof Lawin Nursing and Health Care, 2nd ed. Reston, VA, Rest, 1982, p 63 3. KellyI.~ Dimensions of Professional Nursing, 4th ed. New York Macmillan. 1981, p 487
JOURNAL OF PROFESSIONAL NURSING
MAY-JUNE 1986
following questions: "How many liability suits have the nursing students been involved in?" "What is the university's position regarding faculty and students carrying professional liability insurance?" "Does the university carry professional liability insurance for faculty and/or students?" As dean and as a member of a local hospital's quality assurance board, I grapple with liability issues regularly. Hospitals struggle to develop quality assurance programs and risk management departments, constantly questioning their impact on schools of nursing using hospitals in teaching clinical competencies. These questions and concerns reflect widespread professional and public concern about the liability crisis in which we currently teach and practice. Media coverage highlights the cost, in time and money, of malpractice. Ten thousand physicians appeared at the Michigan state capital to protest high malpractice and liability costs. Individuals claiming we are not in a liability crisis situation are either not knowledgeable of the situation, ignoring the insurmountable cost of insurance premiums and the high number of malpractice suits, or may be speaking out of self-interest. What is a school of nursing's protection? What protection does a university have if faced with a liability suit? I was confronted with these questions during a year-long process of updating and renegotiating clinical agency contractural agreements. My signature is on a multitude of contracts, contracts I wasn't sure I fully understood. The exploration I undertook to define contractual agreements taught me much about contract law, important lessons since the administrator of the nursing program must know the autonomy and rights of the university and the health care agency. Specifically, contract law is founded on four requirements: "1) the act to be contracted for must be legal, 2) the parties to the contract must be legal majority (of age) and competent to enter a legally binding agreement (free of mental impairment), 3) there must be an acceptance of the service to be contracted, that is, there must be a mutual agreement about the service to be contracted, and 4) there must be consideration or the promise of consideration."~ More simplistically, a contract is a legally enforceable promise between two or more persons to do (or not to do) something. As I further investigated the contractual responsibility of an institution, it became evident that the contractual agreement must be carefully thought through and clearly articulated among all parties to facilitate compliance, not prepare for litigation. When a contractual agreement is entered into with potential 138
litigation as its basis, an adversarial mindset has been established. "Liability for patient injury is seldom based on contractual obligation. Rather liability is generally based on the failure of the health care agency or its staff to meet the standard of care due to the particular patient:" What are the implications of this knowledge for nursing students placed in a clinical facility or the faculty member responsible for supervising eight to ten students? The primary fact which must be retained by students and faculty alike is that the hospital holds final responsibility for patient care. The hospital is legally responsible to the patient, and hospital sraffcan override student and faculty decisions about patient selection, patient care procedures, and the nursing care plan. Some legal experts maintain that when students give patient care they are, for legal purposes, considered employees of the hospital. Thus, students may be held liable with the hospital for their own negligence//'patient injury occurs. 3 Other experts disagree and maintain that a student is placed with an agency as part of their academic curriculum with nursing care being given under supervision and not as an employee. However, there is common agreement that faculty supervising students are particularly liable if negligence occurs while the student is performing a task that the student is not yet capable of performing consistently according to professional standards of care. Therefore, the nursing student is held to the standard of a competent professional nurse in the performance of nursing duties) Faculty must know whether or not a clinical contractual agreement exists between thek institution and the health facility. And, faculty must understand that they are responsible to the patient, the hospital and to the university for their students' conduct. This responsibility extends through all situations, even coffee breaks. In the final analysis, nursing faculty are expected to assure appropriate student performance while the contract between the clinical agency and academic institution protects and assures safe and competent care to all patients, within a legal framework of shared responsibility for all. ANDREAR. LINDELL,DNSC, RN
Dean and Professor School of Nursing Oakland University Rochester, MI 48063 References 1. Fenner KM: Ethics and Law itl Nursing. New Yozk, D. Van Nostrand, 1980, pp 94-95. 2. Hemelt MD, Mackert ME: Dynamicsof Lawin Nursing and Health Care, 2nd ed. Reston, VA, Rest, 1982, p 63 3. KellyI.~ Dimensions of Professional Nursing, 4th ed. New York Macmillan. 1981, p 487
JOURNAL OF PROFESSIONAL NURSING
MAY-JUNE 1986