Legal Issues in Neonatal Nursing: Considerations for Staff Nurses Advanced Practice Nurses

Legal Issues in Neonatal Nursing: Co-nsiderations for Staff Nurses 2nd Advanced Practice Nurses Mary I. Enzman Hagedorn, RN, PhD, CNS, CPNP, Sandra L. Gardner, RN, MS, CNS, P N P

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neonatal nurse is a professional with special training, skill, and knowledge in the care of newborns and their families. The neonatal nurse is accountable to the patient, profession, and employer. Failure of the neonatal nurse to meet these obligations can result in liability in the profession, liability in the employment, a civil suit, or a criminal conviction. Regardless of the health care setting, professional nurses, whether at the bedside or in advanced practice, are morally, ethically, and legally accountable for their nursing judgments and actions. Although most nurses assume they will never be named in a lawsuit, and it is true that few are, their professional actions can be the focus of a suit. An overview of the legal implications found within neonatal nursing practice is presented. Two recent legal cases are presented and discussed to illustrate neonatal nursing and advanced practice liability. JOGNN, 28, 320-330; 1999. Accepted: December 1998

Neonatal nursing is a specialized area of practice within maternal-child nursing and focuses on care of low-risk (healthy) newborns, highrisk neonates, and their families. Neonatal nursing practice requires additional educatiodexperience beyond the basic nursing program (Nurses Association of the American College of Obstetricians and Gynecologists [NAACOG], 1990). This includes content related to the period from before conception through infancy and includes: biologic, physiologic, and cultural events that influence the pregnant woman and her family, the developing fetus, and the newborn (NAACOG, 1990).

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NAACOG (1990) stated that educational preparation might be obtained informally through inservices or continuing education programs. In addition, formal education may be obtained through academic degree granting programs that are affiliated with institutions of higher learning, such as masters degree programs. Three distinct yet overlapping roles exist in neonatal care: the neonatal nurse, the advanced practice nurse (APN), and the certified nurse midwife (CNM). An emerging trend is to use the term APN when referring to clinical nurse specialists (CNSs) and neonatal nurse practitioners (NNPs) (Association of Women’s Health, Obstetric and Neonatal Nurses and National Association of Neonatal Nurses [AWHONN & NANN], 1997). Each of these roles begins with basic nursing education and progresses with specialized education. “A neonatal nurse is a professional nurse who provides skilled nursing care for low-risk, high-risk, and critically ill neonates; high-risk infants; and their families. The neonatal nurse has specialized knowledge and develops and maintains clinical competence through standardized practice and continuing education” (AWHONN & NANN, 1997, p. 8). “In addition to providing basic neonatal care, neonatal nurses may focus in one or more areas of expertise, such as intensive or critical neonatal care, transport, lactation, grief [extracorporeal membrane oxygenation] ECMO, or developmental care”(AWH0NN & NANN, 1997, p. 8-9). The specialized education in these areas may be obtained through formal and informal continuing education. Specialized knowledge also can be validated by national certification. Neonatal nurses participate in research, implement research findVolume 28, Number 3

ings, provide education and collaboration on the multidisciplinary team (AWHONN & NANN, 1997). “The goals of neonatal nursing care are: (a) to assess, diagnose, and manage actual or potential problems of the neonate/high-risk infant and family that are amenable to nursing interventions and to evaluate those interventions; (b) to promote maximum growth and development in the neonate/high-risk infant; (c) to maximize health potential of the neonate/high-risk infant; (d) to provide compassionate physical and psychosocial care to neonatedhigh-risk infants with conditions compromising quality of life or causing death and to participate in the bereavement care of the family; (e) to participate in resolving ethical dilemmas; (f) to facilitate and support integration of the neonate/high risk infant into the family; (g) to promote research-based neonatal nursing practice; and (h) to collaborate with other health care disciplines to improve outcomes for all neonatedinfants and their families” (AWHONN & NANN, 1997, p. 8). The nursing process is the structure for professional nursing practice and the standard of practice for nursing. The scope and depth of the use of this process are determined in part by the knowledge base of the nurse and the focus of care to be provided (AWHONN & NAAN, 1997). The responsibilities within neonatal practice include: a) providing direct nursing care to infants and families using the nursing process; b) collaborating with other members of the health care team in the care of infants and families and the development of policies and procedures within their institutions/organizations; c) teaching the family about care and development of the infant; d) applying research findings to clinical practice; e) facilitating and participating in research; f ) participating in the education of nursing students and staff; g) initiating appropriate referrals for follow-up and home care; h) transporting high-risk infants as necessary; i) keeping current through continuing education and review of current literature; j ) identifying and developing strategies to solve problems; k) belonging to and participating in professional organizations at local, state, and national levels; 1) maintaining quality individual practice; and m) practicing in accordance with national professional guidelines (NAACOG, 1990).

Neonatal Advanced Practice Nursing In 1993, the National Council of State Boards of Nursing defined APNs as nurses in advanced clinical practice with a graduate degree with a major in nursing or a “concentration in an advanced nursing practice category, which includes both didactic and clinical components, advanced knowledge in nursing theory, physical and psycho-social assessment, appropriate interventions, and management of healthcare” (p. 3). The skills and abilities of APNs are outlined in Table 1. May/’une

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The American Nurses Association (ANA, 1993) states that APNs conduct comprehensive health assessments and demonstrate a high level of autonomy and expert skill in the diagnosis and treatment of the complex responses of individuals, families, and communities to actual or potential health problems. They formulate clinical decisions to manage acute and chronic illness and promote wellness. Nurses in advanced practice integrate education, research, management, leadership, and consultation into their clinical role and function in collegial relationships with nursing peers, physicians, and others who influence the health environment. The ANA defined four principle groups within advanced practice: a) nurse practitioners, b) certified nurse-midwives, c) clinical nurse specialists, and d ) certified nurse anesthetists. Neonatal nurse practitioners (NNP) are a common type of advanced practice nurses working in tertiary care settings (Maguire, Carr, & Beal, 1995). The evolution of the NNP role was attributable in part to a medical staff shortage in neonatal intensive care units (NICUs). In the 1970s, as nurses were successfully expanding their role in NICUs, the N N P “emerged as one kind of primary care provider for neonates” (Zukowsky & Coburn, 1991, p. 128). In 1974, the NNP was described as a nurse with postgraduate training in neonatology who assumed, for

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Skills and Abilities Essential for an Advanced Practice Registered Nurse

Assessing clients, synthesizing and analyzing data, and understanding and applying nursing principles at an advanced practice level Providing expert guidance and teaching Working effectively with clients, families, and other members of the health care team Managing clients’ physical and psycho-social health-illness status Utilizing research skills Analyzing multiple sources of data, identifying alternative possibilities as to the nature of a health care problem and selecting appropriate treatment Making independent decisions in solving complex client care problems Performing acts of diagnosis and prescribing therapeutic measures consistent with the area of practice Recognizing limits of knowledge and experience, planning for situations beyond expertise, and consulting with or referring clients to other health care providers as appropriate From: National Council of State Boards of Nursing. (1993). National Council position paper on the regulation of advanced musing ptadice. Chicago: Author. Reprinted with permission.

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the neonate, responsibility for routine evaluation and immediate care, as well as some maternal counseling (Slovis & Comerci, 1974). Initially, several titles were given to nurses fulfilling the N N P role, including neonatal nurse clinician and neonatal critical care nurse practitioner (Barnett & Sellers, 1979; Zukowsky & Coburn, 1991). In 1983, certification for NNPs began. The examination was developed and is still offered by the National Certification Corporation (NCC) for obstetric, gynecologic, and neonatal nurses (Perez-Woods, 1989). Neonatal nurse practitioners continue to receive certification through the NCC. As of the year 2000, NCC will require a masters degree for certification (AWHONN & N U N , 1997). An APN is a “professional registered nurse who has obtained advanced education in the field of neonatal nursing. The APN may provide direct patient care, staff or patient education, or act as a neonatal case manager” (AWHONN & NANN, 1997, p. 9). The AI” often works in the same settings as a neonatal nurse but has a greater depth of knowledge and advanced technical and clinical skills (see Table 1). “The neonatal nurse practitioner (NNP) is a professional registered nurse with clinical experience in neonatal nursing who has recieved formal education with supervised clinical experience in the management of sick neonates and their families” (AWHONN & NANN, 1997, p. 9). Through consultation, collaboration, and supervision by a physician, the NNP manages a caseload of neonatedhigh-risk infants. A NNP provides care using independent judgment, the nursing process and medical management and procedures reflective of the state nurse practice acdlaws, institutional guidelines, education, and experience. The NNP is involved in education, research, and consultation. “Neonatal nurse practitioners should have a graduate degree in the specialty area of practice for entry into practice by the year 2000, as well as specialty certification (AWHONN & NANN, 1997, p. 9). The neonatal CNS is a “professional registered nurse with a master’s degree in nursing who, through study and supervised practice at the graduate level, is an expert in the theory and practice of neonatal care. The CNS provides continuity of care for high-risk neonatedinfants and their families through direct patient and nursing case management” (AWHONN & NANN, 1997 p. 9.). A neonatal CNS provides care, consultation, and education to families and staff, initiates and conducts research, and implements clinical research findings (AWHONN & NANN), 1997).

Liability Both the legal system and the health care consumer are largely unaware of the changes occurring in nursing practice that have expanded the role of nursing into spe322 JOGNN

cialty care (such as the care of the neonate) and the resultant medical treatment. These expanded roles have placed nurses in a new arena for liability and litigation. “The public expects too little from nurses because it knows too little about them” (Eccart & Gainor, 1993, p. 305). In addition, many nurses and physicians are unaware of the legal liability that the expansion of nursing roles poses. Skills once defined as medical are now part of everyday nursing care (such as placement of lines [peripheral intravenous lines (IVs)] and initiation of protocols to treat hypoglycemia). In addition, NNPs routinely intubate, place central lines and chest tubes, prescribe medications, and order medical treatments and diagnostic testing for premature infants. With the expansion of nursing roles comes increased liability. Case law demonstrates that although many courts view nursing in its traditional dependent role to medicine and thus impose nursing liability in limited cases (such as falls, failure to carry out physician orders, and negligent care), changes are occurring that carry with them profound implications for nursing liability in patient care. The legal evaluation of the adequacy and quality of nursing care is becoming more sophisticated, and increased liability within nursing care is being discovered (Eccart & Gainor, 1993). Liability is defined as “legally bound or responsible” (Websters New World Dictionary, 1993). In addition, professional liability involves responsibility as defined by professional standards, educational preparation, and certification (Meissner-Cutler & Gardner, 1997). To determine whether a nurse should be held liable for care provided, three questions must be asked: What is the nature of the act? What are the qualifications of the nurse who performed the act? Where was the care provided and under what conditions?

In considering the first question, a court must determine the nature of the care being provided and the necessary skills and education needed to provide the care. If liability is attached because the care provided did not meet expected standards of nursing care, the qualifications, expertise, and certification (if applicable) of the nurse must be reviewed. If the care required specialized knowledge, it must be determined if the nurse had that training/education. Finally, the liability question must be answered: “Where was the care provided and under what conditions?” Neonatal nursing care is provided in one of three areas: the newborn nursery, the Level I1 nursery, or the Volume 28, Number 3

Level 111 nursery (often referred to as the NICU). Neonatal nurses practicing in Level I1 and I11 facilities require advanced education in the care of sick newborns who have specialized care needs. The neonatal nurse working in a Level 111 nursery must demonstrate knowledge in the care of high-risk, premature infants and in the care of newborns with complex conditions (such as persistent pulmonary hypertension, seizures, or congenital heart defects) (NAACOG, 1990). Liability also includes questions about

B o t h the legal system and the health care consumer are largely unaware of the changes occurring in nursing practice that have expanded the role of nursing into specialty care (such as the care of the neonate) and the resultant medical treatment.

the setting in which the care was provided. Was the care provided in the appropriate unit (Level I, 11, or I11 nursery)? Was appropriate, qualified staff available? Was the care provided in a timely fashion? Nursing liability is evaluated on these criteria. In addition, expert witnesses provide the evidence concerning the issues related to nursing qualifications, care, and causation. Expert witnesses must be nurses with education and skills in the care of newborns.

Statute of Limitations States have laws and legislation that set forth time limits for filing lawsuits regarding injury or harm attributed to professional negligence. These time frames are referred to as the statute of limitations. Time limits differ from state to state but for adults generally range from 1 to 6 years from the date of the alleged negligent act. In the case of a minor (a child younger than 18 years) the statute of limitations begins after the child reaches the age of majority (18 or 21 years, depending on the state law) (Meissner-Cutler & Gardner, 1997).After this time expires, no additional legal action can be taken.

Nursing and the Law The scope of practice for a neonatal nurse is determined by education, laws, regulations, standards of practice, training, and experience (Meissner-Cutler & Gardner, 1997). Neonatal nursing is considered a specialty area of practice (NAACOG, 1990), and certificaMaylJune 1999

tion for neonatal nurses is available through specialty organizations (NCC, NANN, Critical Care Registered Nurse, National Association of Pediatric Nurse Associates and Practitioners) at the staff nurse and advanced practice levels. To provide quality patient care, the nurse must “understand the law and standards by which nursing care is measured” (McRae, 1993, p. 411). Neonatal nurses can be found liable for care based on civil (tort) law or criminal law. A tort is a legal wrong, not involving a breach of contract, that causes injury to another. Civil lawsuits are covered under tort law. A civil action is brought forth by the patient or patient’s representative (parents, guardian, or state) for the purpose of obtaining monetary compensation for injury or harm resulting from a negligent act or failure to act. Criminal lawsuits are crimes against a victim brought forth by the government. Criminal lawsuits are brought forth for the purpose of punishment for the person committing wrong, and to act as a deterrent for additional wrongdoing. For criminal liability to be established, a gross deviation from the standard of care must exist and the nurse must fail to perceive a substantial and unjustifiable risk. In legal terms, this is referred to as a conscious disregard or “reckless act,” for which the nurse knows at some level that there is risk, yet disregards that risk (Colorado Revised Statute [CRS] 18-1-501; Meissner-Cutler & Gardner, 1997). In the case of civil negligence, the nurse does not know the risk. Failure to perceive a risk in itself is not criminal, but if the nurse fails to perceive risk through gross deviation from the standard of care that a reasonable nurse would expect, the act becomes criminal negligence. Criminal and civil actions are conducted in different courts, before different juries, and with different standards of proof. A nurse committing the wrong can be held liable for damages in either a civil or criminal lawsuit (Meissner-Cutler & Gardner, 1997).

Professional Negligence Professional negligence is the legal wrong that most often results in damages to the patient and exposure of the neonatal nurse to liability. For a patient to be successful in a lawsuit based on professional negligence, the patient must prove each of four elements: a) duty, b) breach of duty, c) harm or injury, and d ) causation. Malpractice is professional negligence (misconduct of the professional) (Meissner-Cutler & Gardner, 1997).

Duty

When a neonatal nurse establishes a relationship with the patient (a pregnant woman and her fetus or newborn), she owes the patient due care in diagnosis and treatment of the patient’s health condition. The special nature of this relationship transforms the reason-

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able person rule (the obligation to act as a reasonably prudent person would act in the same situation). Thus, the neonatal nurse is required to possess the same degree of skill and knowledge that any other neonatal nurse practicing in the same area would do in the same or similar circumstances. A nurse can be found liable for negligence when she or he: a) fails to have the requisite skill and knowledge (for example, the nurse is unaware that benzathine penicillin is administered only by the intramuscular route), b) fails to exercise reasonable care (failure to perform appropriate and timely glucose screening on an infant whose mother has diabetes), and c) fails to use her or his best judgment (for example, the nurse fails to follow the “five Rs” of drug administration-right route, right dose, right drug, right patient, right time). The neonatal nurse also must use experience and knowledge to question orders or

T h e scope of practice for a neonatal nurse i s determined by education, laws,

link between the patient’s injury/harm and the nurse’s failure to act or negligent act. Causation must be established to a reasonable degree of medical probability or certainty (defined legally as a greater than 50% chance) by an expert witness who is competent and qualified to render this opinion (usually an expert or advanced practice nurse).

Accountability The neonatal nurse is duty-bound to the patient, public, employer, and nursing profession (ANA, 1985; Meissner-Cutler & Gardner, 1997). Specialty organizations assist in defining the individual nurse’s accountability in these areas. Accountability includes not only responsibility, but also the necessity of offering answers and explanations to others (Leddy & Pepper, 1998). Accountability in the nursing profession is multidimensional and includes five domains: a) self, b) profession, c) patient, d) employer, and e) society (Hagedorn & Gardner, 1997). In the legal arena these domains have been compressed into three areas of duty: a) patient, b) profession, and c) employer (Meissner-Cutler & Gardner, 1997).

regulations, standards of practice, training, and experience.

practices that may be harmful to the patient (ANA, 1985; NAACOG, 1990).

Breach of Duty Based on educational preparation, knowledge, skill, and experience, neonatal nurses are expected to perceive and advocate for a patient’s needs and risks. The degree to which the process of advocacy occurs determines the issue of duty to the patient. If the nurse does not perform an appropriate assessment or have the skill to intervene, the nurse may be liable for lack of duty to the patient. In legal terms, this is referred to as breach of duty to the patient. A breach of duty can result in civil or criminal liability for any subsequent harm.

Hamhjury Before a neonatal nurse can be found liable for professional negligence, the plaintiff’s (patient’s) attorney must prove that the negligent act or failure to act (act of omission or commission) actually caused harm to the patient.

Causation Causation is established by the opinion of an expert nurse in that specialty. Causation establishes the

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Duty to Patient The nurse first has the duty to provide patient care that is based on knowledge and skill derived through nursing education. During a patient encounter, the nurse must first develop a caring relationship with the patient and family. Poor relationships between the nurse and patient can prompt patients and families to file malpractice suits (Hagedorn & Gardner, 1997). Patients and families who sue for malpractice are not always those who have been harmed the most. Often the patients and families who sue are those who are angry and believe they have been treated in a curt, uncaring manner. Nurses also must take action when a patient’s condition deteriorates. The standards of clinical nursing practice mandate that a nurse must take immediate action to safeguard the patient (ANA, 1983, 1991). A major area of potential litigation results from failure to properly assess patients and communicate all untoward changes immediately. In addition, the nurse must clearly document these untoward changes and physician’s orders and instructions. The chain of command within the institution may need to be instituted in the event of failure of response by any member of the health care team.

Duty to Profession Along with duty to the patient, the nurse has a duty to the profession. Nurses must maintain clinical

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competence. Today nurses practice in a highly technical and complex patient care environment. Nurses must maintain competence through professional reading, continuing education offerings, and participation in institutional in-service programs. Lack of knowledge does not excuse the nurse from accountability and responsibility for patient safety and knowledgeable care. Nursing, as a profession, requires lifelong learning. Nurses must continuously update their skills and knowledge to provide competent, safe care. State nurse practice acts legally define nursing practice and mandate skills and responsibilities of the profession. Nurses must know and clearly understand their legal responsibilities defined in such laws and in the rules of the state board of nursing. In every state, the lawful practice of professional nursing requires a valid nursing license. A state board of nursing issues nursing licenses and has the power to modify or suspend the nurse’s license to practice. Action can be taken against a nurse’s license by means of a grievance procedure, an administrative action, or a legal decision. The board has the power to revoke, suspend, or limit the nurse’s ability to practice. Action against a license can be the result of a) negligence, b) reckless practice, c) physical or mental disabilities, d ) false procurement of license, e) ethical violations, or f ) criminal conduct (Meissner-Cutler & Gardner, 1997).

specialty practice such as neonatal nursing, standards of practice are established by the specialty organization (such as ANA, AWHONN, NANN). Association publications offer recommendations and general guidelines, rather than strict rules of practice, and are intended for adaptation for specific practice situations. Standards of practice are additionally defined by each state nurse practice act. Standards of practice also are delineated in hospital policies, procedures, and protocols. The neonatal nurse’s deviation from the usual and customary standard of care is based on the care a nurse practicing in the same specialty under the same circumstances would give. Professional nursing practice encompasses the performance of activities within the scope of nursing practice, including independent, interdependent, and dependent functions (see Table 2). Professional nursing includes the prevention, diagnosis, and treatment of health conditions within the parameters of the nurse practice act and standards of care. Nursing care is framed within the nursing process: a) assessment, b) TABLE 2

Scope of Professionnl Ntrrsirtg Practice Functions

Del;nitim

Independent

Aspects of nursing practice con-

Duty of Employer Neonatal nurses are responsible for negligent acts of omission and commission. The employer (hospital, clinic, freestanding birthing center) may be called upon to answer for the nurse’s conduct. This concept of derivative liability is termed in the legal arena “vicarious liability.” Legally, the employer may be held accountable for negligent acts of employees. The employer has a duty to screen, select, and retain only qualified and competent staff. For instance, a hospital may be found liable in a civil case for hiring an inadequately trained nurse to work in the newborn nursery. A hospital also could be found liable for not having a supervising nurse adequately trained and capable of determining if an emergency situation exists and warrants the notification of a physician. Both nurses and the employer need to define appropriate assignments. Work assignments must be consistent with job descriptions and expertise of nursing staff.

Scope and Standards of Practice A professional requirement exists that nurses remain competent and continually updated in the standards of care for their profession and specialty (ANA, 1985, 1991; AWHONN & NANN, 1997). In areas of

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Interdependent

Dependent

tained in state nurse practice acts that require no supervision or direction. Formulation of nursing diagnosis and application of the nursing process are independent nursing functions required by statute of the licensed professional nurse. Aspects of nursing practice performed in collaboration with other health care professionals. Collaborativelywritten institutional protocols delineate the conditions and treatments the nurse is permitted to administer. Aspects of nursing practice dependent on the written order of another professional. The physician prescribes medications; the nurse administers the prescribed medication. The nurse is also responsible for independent actions: a) knowing the proper medication, dosage, and route; b) safe administration; c) monitoring effects and adverse responses; and d) advocating for the patient regarding proper medication, dosage, and route.

From: Meissncr-Cutler, S., & Gardner, S. (1997). Maternakhild nursing and the law. In S. Cardnu & M. Hagexlorn (Eds.), Legul aspects of maternal child nursing practice (pp. 40). Menlo Park, CA: Addicon Wesley Longman, Inc. Reprinted with permission.

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TABLE 3

Most Common Allegations in Ntrrsing Malpractice Nursing procwS Assessment

Diagnosis

Plan Implementation

Evaluation

Nursing E m Failure to take appropriate steps to gather information Failure to recognize the significance of information gathered Failure to communicatddocument Failure to identify the correct nursing diagnosis Overdiagnosis or diagnosis of a nonexistent health care problem Incomplete cart+omission Inappropriate commission of care Patient identification Patient safety (e.g., falls, unsafe environment, failure to follow policy/procedure) Failure to respond to patiendfamily requesdinput Medication errors Equipment failure Failure to review, revise, and alter the plan of care

From:Meissuer-Cutler,S., & Gprdner, S. (1997).Matemal-child nursing and the law. In S. Gardner & M. I-hgedorn (Eds.), k g d aspects of maternal child nursing practice (pp. 34). Menlo Park, CA: Addison Wesley Longman, Inc. Reprinted with permission.

diagnosis, c) plan, d) implementation, and e) evaluation. Opportunity for error exists in each step of the nursing process (see Table 3).

Legal Negligence in Neonatal Nursing Practice When does a mistake by a neonatal nurse constitute professional negligence at a staff or advanced practice level? This is a question being asked by attorneys litigating cases around the country involving nurses. To assist neonatal nurses in understanding their liability in caring for patients, two recent cases are reviewed to illustrate civil and criminal negligence in nursing care. The authors have served as expert witnesses for these cases.

Case 1 Case History A male neonate was born by emergency cesarean section, which was performed because of fetal distress (late decelerations and poor variability per fetal moni-

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toring); the neonate was born in the operating room of a community hospital to a mother who had insulindependent diabetes. Upon arrival to the nursery, the neonate was noted to have tremors, and the result of his first Chemstrip BG (CS) was a “light 40” (the eyeball method of determining the level was used, according to the nurse’s deposition). The infant was fed 3/4 ounce of 10% dextrose in water (DlOW), and a second CS was performed in 30 minutes; the result of that test was “0.” A STAT blood glucose test was done, and the nurse was ordered by the physician to feed 1 ounce of DlOW. Thirty minutes later, another CS was performed; the result was “25.” Fifteen minutes later, the STAT blood glucose result was reported to be 16 mg/dl; the time elapsed since request of the STAT blood glucose test was 1 hour 15 minutes. An IV of DlOW was started in his left arm, and a bolus of 8 ml of DlOW was given during a period of 15 minutes. The result of a subsequent CS was “50,” but the infant continued to have fine tremors of the hands and feet. His IV was ordered to run at 16 ml/hour, and 1 hour later, a CS result was 30 mg/dl. Another STAT serum glucose was ordered, obtained, and sent to the laboratory. The result came back an hour later and was 30 mg/dl. Another 8 ml bolus of DlOW IV was given. One hour later, the CS was “35,” and tremors were still noted. An audible heart murmur was documented at that time. Eight hours later, after several chart notations were made of tremulous extremities throughout the night, a serum calcium level was obtained and reported as 7.2 mg/dl. Later in the day, another serum calcium level was obtained and reported as 7.0 mg/dl. Late in the afternoon, calcium was added to the IV solution. At the same time, a sepsis workup was performed for the infant’s symptoms of tachypnea and hypoglycemia, and the patient was allowed nothing by mouth. Antibiotic (ampicillin and gentamycin) therapy was started, and gentamycin peak and trough levels were ordered to be drawn before and after the third dose. During a 3-day stay in the nursery, the infant was intermittently monitored for hypoglycemia, had marginal glucose levels, and was IV glucose dependent to maintain a serum glucose level of 40 mg/dl. On the second day of the neonate’s hospital stay, the maternal-infant nurse assigned to care for the patient noted, during a laboratory draw for a gentamycin level, that the IV was infiltrated. At that time, she discontinued the IV. Two hours after discovering the infiltrated IV, the maternal-infant nurse notified the physician of the infiltrated IV when she called him about the gentamycin level. The physician ordered the nurse to restart the IV. After unsuccessful attempts by two registered nurses and the passage of 2 additional hours, the physician was notified of the nurses’ inability to restart the IV.

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The physician ordered a CS and gavage of the infant with 20 ml of 10% glucose water; the physician paged the surgeon for a cutdown. The CS was “0-20,” and a STAT serum glucose level was drawn. The result of the serum glucose test was obtained 1.5 hours later and was 8 mg/dl. The physician again ordered 20 ml of 10% glucose water to be gavaged and asked if the surgeon had arrived. When informed that the surgeon had not arrived, the nursing supervisor was called, and an emergent page was sent to the surgeon. The surgeon did not arrive in the unit to perform the cutdown until 1 hour 15 minutes later, stating that he had just received notification of the need for a cutdown. Once the cutdown was performed (almost 6 hours after the infiltration), the glucose level normalized during the next few hours with the addition of IV Solucortef. The primary physician provided all care for this infant by telephone, and when he arrived the next morning for rounds, transported the infant to a Level I11 center for management of intractable hypoglycemia. A civil lawsuit was filed against the physician, the hospital, and the maternal-infant nurse. The child is 7 years old and has spastic quadriplegia cerebral palsy and developmental disabilities, including cognitive, intellectual, and speech and language delays.

Case Analysis Mistakes rarely happen in isolation. There often is a combination of factors that result in tragic outcomes for neonates and children. The case was settled out of court. During the analysis of this case, multiple errors emerged: After the first few hours of care, it was obvious that this infant was not going to follow the course of a typical newborn and really should have been receiving care in a Level I1 nursery unit. Such care requires a nurse with enhanced knowledge in the care of high-risk infants (American Academy of Pediatrics [AAP] and The American College of Obstetricians and Gynecologists [ACOG]), 1997; NAACOG, 1990, 1991). This infant was being cared for in a Level I facility. There were no written protocols at this institution for care of an infant of a mother with diabetes, gestational aging of an infant, or care of an infant with hypoglycemia. Nurses caring for this infant had the legal and ethical duty to advocate for appropriate care of hypoglycemia based on national standards and institutional policies and procedures. The AAP and NANN (1994) guidelines state that institutions have the responsibility to design guidelines for the assessment and management of hypoglycemia in an infant of a mother with diabetes, small-for-gestational-age infants, and large-for-gestational age infants. Within the first 2 hours of life, this infant was hypoglycemic, with documented CS and serum glucose levels of less than 40 mg/dl. Once hypoMayl’une

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glycemia was documented, nurses should have followed a protocol for the care of an infant of a mother with diabetes, which requires frequent CS testing, formula feeding, and IV glucose if necessary (McGowan, Hagedorn, & Hay, 1998). When this infant required IV glucose to maintain a glucose level within normal limits, the nurse had the responsibility to maintain a peripheral venous line or advocate for the establishment of a central line. In an infant who is to receive nothing by mouth, it should not have taken almost 6 hours to establish intravenous access and a resultant glucose source for this infant. The chain of command was put into play far too long into the incident to prevent this tragedy. This maternal-infant nurse violated the national standards of care for a hypoglycemic child. She did not recognize the risk factors and the potentially life-threatening situation in this infant. The nurse not only failed to advocate for the infant, but also failed to notify the physician in a timely fashion about the inability to establish another IV access. A 6-hour delay to establish IV access in a hypoglycemic newborn is outside the standard of care. The maternal-infant nurse caring for this infant in a Level I nursery did not have adequate knowledge to care for a hypoglycemic infant. In the nurse’s deposition, she identified herself as a maternal-infant nurse with 5 years of obstetric and postpartum experience and minimal newborn experience beyond, as she said, “normal newborns.” Her personnel file indicated that she had received only newborn nursery orientation regarding ongoing care and feeding. No documentation was available to identify her proficiency to estimate gestational age or monitor glucose levels in the newborn. The hospital administration had the responsibility to provide staff who were knowledgeable in the care of high-risk infants (AWHONN & NAAN, 1997). In the event that this hospital was unable to provide the standard of care, the physician should have immediately transferred this infant to a center capable of providing this care. Hypoglycemia is a common complication of atrisk newborns. Nurses practicing in newborn nurseries must be knowledgeable, competent, and skilled in the identification and management of the complications of hypoglycemia (Hagedorn & Gardner, 1999).

Case 2 Case History This is a high-profile case involving three nurses in Denver (a maternal-infant nurse, a Level I1 nursery nurse, and a neonatal nurse practitionedpediatric nurse practitioner, all of whom had multiple years of experi-

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ence). These nurses were charged with criminally negligent homicide in the death of a healthy, full-term, Hispanic newborn. Many professionals in the system contributed to the outcomes in this case (a pharmacist, nurses, and a physician). The mother of this infant was a gravida 4 para 3003 Hispanic woman who presented to her obstetrician in her first trimester of pregnancy for prenatal care and was found to have a positive rapid plasma reagent (RPR) at the first prenatal visit and again at 18 weeks. At 29 weeks’ gestation, the RPR was mildly positive. The obstetrician elected to defer treatment. At 36 weeks, the antepartum records were sent to the delivering hospital; however, a fourth RPR at 38 weeks was completed and was negative. The mother had an uncomplicated vaginal birth at 40 weeks’ gestation. At the time of birth, the neonatologist read the antepartum record (which documented visits only to 36 weeks) and conferred with the Infectious Disease Specialist at the University Hospital and the State Health Department regarding the lack of treatment of a mother with a positive RPR during pregnancy. The neonatologist and the obstetrician did not confer on this case. Following the recommendations of the Centers for Disease Control, the neonatologist ordered bone x-rays, a lumbar puncture, and 150,000 units of benzathine penicillin G intramuscular (IM). Three nurses were involved in the process of administering the benzathine penicillin. The maternal-infant nurse was assigned to the couplet (mother and infant) for care. The Level I1 nurse was consulted because the maternal-infant nurse was not familiar with the ordered drug. The hospital pharmacist filled the physician order with 10 times the ordered dose. Benzathine penicillin was provided by the pharmacist in two, 2-ml prefilled syringes in a plastic bag labeled, “ 1,500,000 units Benzathine Penicillin to be given IM.” When the maternal-infant nurse looked up dosage information in the American Academy of Pediatrics (AAP) Red Book on infectious disease and realized that the dose sent up by the pharmacist would require five injections, she turned the administration over to the Level I1 nurse and the nurse practitioner. Not one of these three nurses recognized that the dose sent to the unit by the pharmacy was 10 times the dose ordered for this infant, nor did they call the pharmacy to verify the volume sent. Instead, the nurse practitioner and the Level I1 nursery nurse decided to investigate a different route for the administration of the drug. The NNP ordered a change in the route of benzathine penicillin administration to IV after consulting with the Neofax 95, which described the alternative treatment as aqueous penicillin G slow IV push. The NNP believed that “aqueous” and “benzathine” penicillin were the same drug and that benzathine was the brand name for aqueous penicillin, instead of realizing that benzathine indicates the type of solution in which

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the penicillin is suspended. These two nurses informed the maternal-infant nurse that they would spare the infant multiple IM injections and proceeded to administer an IM preparation of penicillin IV push. After 1.8 ml of the drug was administered, the infant experienced cardiac arrest; attempts at resuscitation lasted 3 hours, but the newborn died. The hospital terminated the NNP; the pharmacist was reported to the state board of pharmacy and allowed to resign; and the Level I1 nursery nurse was reassigned to non-nursing duties pending the nurse state board investigation. Because the errors resulted in the unexplained death of an infant, the case was investigated, a coroner’s autopsy was ordered (by the district attorney’s office), and a grand jury found “probable cause” for the death of this infant. Several months later, the three nurses were indicted in criminal court on charges of criminally negligent homicide (Plum, 1997). By being “criminally negligent,” according to Colorado Revised Statute (CRS) 18-1-501, these nurses were charged with “gross deviation from the standard of care that a reasonable person (nurse)would exercise and fail to perceive a substantial and unjustifiable risk” (pp. 298-299). Although the maternal-infant nurse relinquished the administration of the drug to the Level I1 nurse and the nurse practitioner, she was included in the criminal charges because of her responsibility to care and advocate for the couplet (mother and infant). Several days before the case was tried in criminal court, the nurse practitioner and the Level I1 nursery nurse accepted a plea bargain. They pled guilty and received a deferred sentence of 2 years’ probation and 24 hours of community service (teaching nursing students the danger of improper drug administration). The nurses’ records will be expunged of the conviction provided they avoid additional criminal litigation for a period of 2 years and adhere to the state board of nursing review of their licenses. This plea bargain removed the immediate possibility of a prison sentence or potential fines that could have been imposed by the criminal court. The maternal-infant nurse (plaintiff) chose to go to trial and was acquitted of any wrongdoing by a jury on January 30, 1998.

Case Analysis When this Denver case is analyzed from a legal perspective, multiple errors emerge: The main issue was the nurses’ failure to follow the five Rs of drug delivery. Clinical competence in medication administration (ANA, 1985; NAACOG, 1990,1991) requires the nurse to complete the five Rs of drug administration. This is basic nursing knowledge taught to the first year nursing student, and the process should be performed before any drug administration. Taking the order off the chart, the maternal-infant nurse should have validated the correct Volume 28, Number 3

dose and route of the drug before sending the order to the pharmacy. Once the drug arrived on the unit, this dose should have been revalidated and calculated by two registered nurses. This requires the astute reading of the order against the amount received in the syringe to validate concurrence of the order and the calculated dose. Although the indicated route on the syringe (IM only) was correct, the dose was 10 times the amount ordered. Had this verification step occurred, the rest of this unfortunate tragedy might have been avoided.

N u r s e s can decrease the risk of liability through proactive, preventive strategies.

No written protocols were available at this institution for NNPs. Thus, this institution was in violation of the national standard that mandates written protocols to be available to guide advance practice nurses in collaborative practice with physicians. Two of the nurses collaborated to change the ordered route and administered the drug by the wrong route (IV push, instead of IM). Had the nurses ensured they were administering the drug via the right route, they would have noted that benzathine penicillin is a milky white substance and is documented in every pharmacy reference “to be given IM only.” It is hoped such knowledge would have stopped them from proceeding to administer the drug by the wrong route. In addition, if these two nurses had verified they had the right drug and the right dose, they would have realized that they had the right drug but the wrong dose. This might have prevented them from moving to the ultimately fatal step of changing the route of a drug that has only one route of administration. The NNP believed she had the right to change the physician’s order, yet the physicians testified under oath that the NNP did not have the right to change a physician’s order without consulting with the physician. No written collaborative agreement existed between the NNP and a supervising physician. This violates the nurse practice act in Colorado that states all nurse practitioners and advance practice nurses must have on file a signed collaborative agreement with a physician to provide care. “Administering the correct dosage of a drug is a shared responsibility between the physician who orders the drug and the nurse who carries out the order” (Whaley & Wong, 1995, p. 1224). When an APN orders a drug, that nurse is responsible to do so safely, correctly, and within the standard of care. When a nurse administers a drug ordered by an APN, that nurse is

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responsible to do so safely, correctly, and within the standard of care. The nurse is not relieved of liability for that drug administration. The nurse still retains the dependent responsibility to carry out written orders, and she also retains the independent actions and responsibilities of medication administration. This tragic incident was not merely a medication error or a system’s failure, as has been portrayed in several nursing journals (Curtin, 1997; Kowalski & Horner, 1998; Pearson, 1998) and in the local and national media. This incident was the result of nurses failing to perform and choosing to ignore the five Rs.

Summary The practice of neonatal nursing is becoming more complex, and nurses are being placed in situations that if mismanaged can result in litigation. Nurses can decrease the risk of liability through proactive, preventive strategies. Several preventive strategies are essential in the care of the neonatal patient: a) establish a caring relationship with the family, b) know your legal and ethical responsibilities, c) define appropriate assignment, d) take action when an infant’s condition warrants, e) defensively document all patient care, and f) maintain clinical competence through frequent review of techniques and skills in practice and the basic knowledge required in practice (such as the five Rs of medication administration, use of the nursing process, ongoing evaluation, and revising plans of care) (Hagedorn & Gardner, 1997). The care of fragile infants is the mainstay of neonatal nursing practice. Professional nurses caring for these infants must constantly evaluate and re-evaluate the care they are providing within the framework of the nurse practice act, code of ethics, and standards of practice and care (Hagedorn, Gardner, Laux, & Gardner, 1997).

REFERENCES American Academy of Pediatrics (AAP) and The American College of Obstetricians and Gynecologists (ACOG). (1997). Guidelines for perinatal care (4th ed.) (pp. 17-19). Washington, DC: Author. American Nurses Association (ANA). (1983). Standards of

maternal child nursing practice. Washington, DC: Author. American Nurses Association (ANA). (1985). Code for nurses. Washington, DC: Author. American Nurses Association (ANA). (1991). Standards for clinical nursing practice. Washington, DC: Author. American Nurses Association (ANA). (1993). Capital notes. Washington, DC: Author. Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN)& National Association of Neonatal Nurses (NAAN). (1997). Neonatal nursing: Orientation and development for registered and advanced practice nurses in basic and intermediate care settings.

Washington, DC: Author.

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Barnett, S., & Sellers, P. (1979). Neonatal critical care nurse practitioner. American Journal of Diseases in Children, 228(3), 310-314. Colorado Nurse Practice Act, Colorado Revised Statutes (C.R.S.) Section 12-38-103(5 ) . Curtin, L. (1997). When negligence becomes homicide. Neonatal Network, 26(6), 5-6. Eccart, W., & Gainor, E. (1993). Legal ramifications for expanded practice. In M. Mezy & D. McGivern (Eds.), Nurses, nurse practitioners evolution to advanced practice (pp. 281-290). New York: Springer Publishing. Hagedorn, M., & Gardner, S. (1997). Accountability for professional nursing practice. In s. Gardner & M. Hagedorn (Eds.), Legal aspects of maternal--child nursing, (pp. 1-4). Menlo Park, CA: Addison Wesley Publishing. Hagedorn, M., & Gardner, S. (1999). Hypoglycemia in the newborn: Fertile ground for legal liability. Mother-Baby Journal, 4( l ) , 15-21. Hagedorn, M., Gardner, S., Laux, M., & Gardner, G. (1997).A model for professional practice. In S. Gardner & M. Hagedorn (Eds.), Legal aspects o f maternal-child nursing (pp. 67-94). Menlo Park, CA: Addison Wesley Publishing. Kowalski, K., & Horner, M. (1998). A legal nightmare Denver nurses indicted. Maternal Child Nursing, 23(3), 125-129. Leddy, S., & Pepper, J. (1998). Conceptual bases of professional nursing (4th ed.) (p. 329). Philadelphia: Lippincott Raven. Maguire, D., Carr, R., & Beal, J. (1995). Creating a successful environment for neonatal nurse practitioners. Journal of Perinatal and Neonatal Nursing, 9(3), 53-61. McRae, M. (1993). Litigation, electronic fetal monitoring and the obstetrical nurse. JOGNN, 22, 410-419. McGowan, J., Hagedorn, M., & Hay, W. (1998). Glucose homeostasis. In G. Merenstein & S. Gardner (Eds.), Handbook of neonatal intensive care (pp. 259-274). 4th ed. St. Louis: Mosby Yearbook. Meissner-Cutler, S., & Gardner, S. (1997).Maternal-child nursing and the law. In S. Gardner & M. Hagedorn (Eds.), Legal aspects of maternal child nursing practice (pp.

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25-50). Menlo Park, CA: Addison Wesley Longrnan, Inc. National Council of State Boards of Nursing. (1993). National Council position paper on the regulation of advanced nursing practice. Chicago: Author. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1990). Nurse providers of neonatal care. Washington, DC: Author. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1991). Standards for the nursing care o f women and newborns. Washington, DC: Author. Pearson, L. (1998). Analysis of an error. The Nurse Practitioner, 23(7), 8, 13. Perez-Woods, (1993). The anatomy of NCC certification examinations: The neonatal intensive care nursing examination. Neonatal Network, 7(6), 53-59. Plum, S. (1997). Nurses indicted: Three Denver nurses may face prison in case that bodes ill for the profession. Nursing 97, 23(7), 33. Slovis, T., & Comerci, G. (1974). The neonatal nurse practitioner. American Journal of Diseases in Children, 128(3),310-314. Laird, C. (ed.). (1993). Websters New World Dictionary (p. 347). New York: Warner Books. Whaley, L., & Wong, D. (1995). Nursing care of infants and children (pp. 1184-1246). 5th ed. St. Louis: Mosby Yearbook. Zukowsky, K., & Coburn, C. (1991). Neonatal nurse practitioners. Who are they? JOGNN, 20, 128-132.

Mary I. Enzman Hagedorn is an Associate Professor in the Beth El College of Nursing and Health Sciences at the University of Colorado and a Certified Pediatric Nurse Practitioner at Colorado Springs Health Partners in Colorado Springs, CO. Sandra L. Gardner is the Director of Professional Outreach Consultation in Aurora, C O . Address for correspondence: Mary I. Enzman Hagedorn, RN, PhD, CNS, CPNE 1250 Oak Hills Drive, Colorado Springs, C O 80919.

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