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Strategies for Reducing the Risk of Malpractice Litigation in Perinatal Nursing
Strategies for Reducing the Risk Of Malpractice Litigation in Perinatal Nursing Deborah Koniak-Griffin, RNC, EdD, FAAN
Perinatal nurses are involved in malpractice litigation most often as employees of a hospital being sued. Contemporary case examples from malpractice claims provide the foundation for examining how perinatal nurses can become the focus of such litigation. Increasing demand for individual nurse accountability, cost containment strategies that require nurses to broaden their scope of practice and to supervise unlicensed assistive personnel, increasing use of medical technologies, and the reality of compromised newborns and unexplained outcomes place perinatal nurses at risk for continued malpractice vulnerability. Specific strategies for risk reduction can be used by the individual nurse and the institution in relation to hospital policies and procedures, application of the nursing process, documentation, birth videos, and delegation of tasks to unlicensed assistive personnel.
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28,291 -299; 1999.
Accepted: December 1998
During the past 2 decades the number of malpractice cases involving childbirth issues has risen dramatically. Obstetric care was involved in 61.5% of claims reported for the survey period of 1992 to 1995 by the American College of Obstetricians and Gynecologists (ACOG) (Griffin, Heland, Esser, & Jones, 1998). Findings of this survey revealed that in 1992, obstetricians/gynecologists were second only to surgeons in the number of professional liability claims filed against them. The large settlements associated with these cases have gained the attention of health care professionals and the public. Most obstetric claims involve alleged injury to the fetus, neonate, or mother during the process of labor and delivery. Although most of these cases are Mayl'une 1999
directed primarily at physicians and hospitals, the professional actions of nurses are increasingly becoming a focus in malpractice litigation, most frequently in civil lawsuits classified as torts (wrongs committed by an individual, intentionally or unintentionally, against another person or the property of another). The involvement of nurses in obstetric malpractice litigation occurs most often because they are employees of the hospital being sued. The hospital is vicariously liable for any breach of duties by its employees working within the scope of their employment. Vicarious liability is almost an automatic accountability, whereby if a nurse is found negligent, the hospital is held liable for its employee's actions (Fiesta, 1988). Nurses, although they may be named as individual defendants, are much less frequently targeted in malpractice suits than are physicians and hospitals. However, the courts recognize nursing as an autonomous profession responsible for its own practice and possessing a unique body of knowledge. This article describes some of the clinical challenges faced by nurses employed in hospital obstetric settings, using examples of malpractice litigation to illustrate key points. Common nursing issues involved in obstetric malpractice cases are reviewed, and specific strategies for risk reduction are recommended. As background for the discussion, data on obstetric claims are presented, and the four elements of malpractice are reviewed.
Background Consumers of health care have increasingly become aware of advances in technology and the
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specialized training of clinicians. Childbearing families enter the hospital expecting to have a healthy child and trusting the staff will make this dream a reality. When a bad outcome occurs, some parents may believe that a mistake has been made and attribute the problem to the care provided by one or more members of the health care team. Their despair over a sick newborn or a fetal demise may provide the impetus for a future malpractice claim. Medical malpractice lawsuits are based on the assumption that the health care provider failed to meet the professional standard of care, and as a result, the patient experienced an injury. A definition of the standard of care for nurses has been established by the courts:
TABLE 1
Four Elements of Successful Malpractice Claims 1. The existence of a duty by the professional within the context of a relationship (e.g., nurse-patient, physician-patient) 2. The applicable standard of care and its violation (breach of duty) 3. A compensable injury to the patient 4. A causal connection between the violation of the standard of care and the patient’s injury
M e d i c a l malpractice lawsuits are based on the assumption that the health care provider failed to meet the professional standard of care, and as a result, the patient experienced an injury.
It is the duty of one who undertakes to perform the services of a trained or graduate nurse to have the knowledge and skill ordinarily possessed, then to exercise the care and skill ordinarily used in like situations, by trained and skilled members of the nursing profession practicing their profession in the same or similar circumstances (Fraijo u. Harland Hospital, 1979). Materials that may be used as evidence in malpractice cases to support expert opinions about standard-of-care issues include hospital bylaws, procedures, and nursing policies; guidelines published by professional organizations such as Association of Women’s Health, Obstetric, and Neonatal Nurses (AWHONN) (formerly Nurses Association of the American College of Obstetricians and Gynecologists [NAACOG]); state nurse practice acts; and publications of other groups, such as the Joint Commission on Accreditation of Healthcare Organizations. In medical malpractice litigation, negligence is the predominant theory of liability. Nurses may be accused of negligence when they fail to demonstrate reasonable and prudent behavior in their practice. To establish a verdict of malpractice, the patient’s (plaintiff‘s) attorney must establish four elements (see Table 1). Breach of duty occurs when the nurse fails to provide care as described by nursing practice standards. Disputes over whether a case of medical treatment was negligent and
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what injuries the patient experienced as a result are ultimately resolvable in a civil trial before a jury. However, in practice approximately 90% of such claims are settled through voluntary negotiation before going to trial (Weiler et al., 1993). Plaintiff verdicts can be obtained only if jurors believe that substandard care led to the injuries (causation).Expert witnesses argue on the side of both the plaintiff and the defense (hospital, physicians, nurses) regarding whether or not the standard of care was violated and if the alleged violations caused harm or injury to the patient. An examination of 1987 to 1995 malpractice claims by the Controlled Risk Insurance Company (CRICO) (for Harvard-affiliated medical institutions and their employees) shows that obstetrics/gynecology is among the specialties named most often in such claims. Within this area, the most common allegations involve treatment of fetal distress, peripartum care, and prenatal care (Bentley-Lewis, 1996). In many cases, delay in the treatment of fetal distress allegedly was the cause of a birth-related injury, such as cerebral palsy. The chief evidence used by many plaintiff attorneys is fetal heart rate tracings, which are subject to interpretation by experts. Of the obstetrics/gynecology CRICO claims in 1994, 32% represent actual or potential losses of $500,000 or more (Volk, 1995). Data from the 1996 ACOG Professional Liability Survey showed that 73 % of obstetricians/gynecologists have had at least one professional liability claim filed against them during their careers, with a career average of 2.31 claims (Griffin et al., 1998). The primary allegation in many of these claims against obstetricians/gynecologists was birth of a “neurologically impaired infant,” which accounts for a large percentage of payments. Most of the reported cases ended in favor of the obstetriciadgynecologist by way of a jury defense or court verdict (78%)or through the lawsuit being dropped or the plaintiff settling without payment. A variety of professional actions by the nurse may be focused on in malpractice lawsuits. McMullen (1990) identified five major omissions of labor and
Volume 28, Number 3
delivery nurses in liability cases: 1) failure to monitor appropriately the client’s and fetus’s status; 2) inappropriate oxytocin monitoring or use; 3 ) failure to notify the physician in a timely manner; 4) initiation of procedures without adequate client information or consent; and 5 ) improper sponge or instrument counts during cesarean section. Another common allegation is failure to diagnose properly (e.g., maternal hemorrhage, infection, macrosomia). Maternal and fetal death suits may involve issues of undiagnosed hemorrhage, whereas many birth trauma cases involve shoulder dystocia, resulting in neonatal conditions such as Erb’s palsy. Malpractice claims against nurses are reported to state boards of nursing. Any written demand that results in a payment on behalf of a registered nurse or nurse practitioner must be reported by the insurer to the National Practitioner Data Base (NPDB). Reported payments for nurses are relatively rare, accounting for 1.7% of all payments throughout the history of the NPDB. Two-thirds of nurse payments were for nonspecialized registered nurses and 24% for nurse anesthetists, in contrast to 5.9% for midwives and 3.8% for nurse practitioners (NPDB, 1998). The NPDB data reveal that monitoring, treatment, and medication problems account for most payments for nonspecialized nurses, but obstetric and surgery-related problems also are responsible for a significant number of payments. In the next century, nurses may expect to continue to be implicated in malpractice cases for four major reasons. First, increased demands for individual accountability are being created by the expanding scope of nursing practice and changes in the health care system. Familycentered care has created the need for nurses with knowledge and skills in all phases of childbearing and newborn care, and many hospitals are cross-training nurses to provide services in all obstetric areas. Although insufficient cross training of nurses may increase the potential for liability, the holistic approach that guides family-centered care may in many cases reduces such a potential. Second, cost containment strategies have resulted in shortened hospital stays, downsizing of nursing staff, and increased use of unlicensed assistive personnel (UAPs). Employing UAPs to lower costs has the potential of weakening the “intricate web of safe, high-quality health care” (Phillips, 1995, p. 55). Nurses are responsible for other staff who assume nursing tasks through delegation. Liability risks may be associated with these individuals if they are not competent or have been inappropriately assigned to tasks. Claims of negligence also may include issues related to inadequate staffing. Third, the use of technologies such as electronic fetal monitoring results in higher patient expectations of perfect outcomes, increasing the chances for litigation (Stolte, Myers, & Owen, 1994).
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Finally, liability risks exist as a result of the reality that there continue to be compromised newborns and unexplained events involved (Holder, 1997). In addition, there are some cases in which mistakes are made, and hospitals, physicians, and nurses are liable.
Examples of Nursing Issues in Malpractice Claims Communication In malpractice claims involving communication issues, allegations often relate to interactions (direct or indirect) between nurses or patients and other members of the health care team, such as physicians. Questions addressed in legal proceedings frequently relate to 1) whether the nurse communicated relevant clinical information to the obstetrician; 2) use of the chain of command to protect the safety and well-being of the obstetric patient and unborn child; and 3 ) whether the patient was adequately advised of the risks and benefits of a treatment or procedure and provided informed consent. Research findings suggest an association between communication behaviors and malpractice claims (Hickson et al., 1994). Providing explanation before initiation of procedures, using humor, and spending more time with patients have been found to characterize primary care physicians who have never faced a malpractice suit in comparison to those who have been sued (Levinson, Roter, Mullooly, Dull, & Frankel, 1997). A malpractice lawsuit often can be prevented by prompt, deliberate, frank, and caring interaction with the perinatal team and the family (Holder, 1997). Communication of Clinical Findings. The case of Campbell v. Centinela Hospital Medical Center (1994) illustrates obstetric nurses’ accountability to communicate with the obstetrician about fetal distress and to notify the neonatologist in a timely manner. The plaintiff, an 18-year-old, was admitted to the hospital in labor at 6 a.m. Oxytocin augmentation was begun at noon. Although the fetal heart rate initially was normal, a deceleration to 60 bpm with a duration of 8 minutes was noted to begin at 6 p.m., when the obstetrician was in attendance; repeated severe variable and late decelerations were observed during the next 2 hours. Transfer to the delivery room occurred at 8 p.m. Fetal heart rate monitoring was not conducted for the 22-minute period preceding the vaginal birth because a monitor was unavailable in the delivery room. The infant’s initial Apgar score was 0, and the neonate required cardiopulmonary resuscitation by the respiratory therapist and nurses in the delivery room. The infant was first seen by the neonatologist at 9 p.m. The plaintiff’s attorney in this case contended that the defendant’s obstetric nurses failed to recognize fetal distress; failed to take actions that would have led to a
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cesarean section; failed to assess the fetal heart rate in the delivery room, which would have shown terminal bradycardia; and failed to call the neonatologist promptly, resulting in delayed treatment of the infant’s acidosis. The hospital defense was based on the contention that its obstetric nurses deferred to the obstetrician’s judgment and interpretation of the fetal monitor strip; that the obstetrician was in charge and the nurses could not independently intervene and order a cesarean section; and that delayed treatment of acidosis did not cause the infant’s injury. The obstetrician settled separately before trial for nearly $1 million, and the trial resulted in a plaintiff verdict against the hospital in excess of $10 million. The outcome of this case illustrates how the court viewed the nurse’s actions as a hospital employee: the nurse was not expected to defer all judgment to the physician, but was required to act independently to protect the well-being of the mother and unborn child and to communicate with the neonatologist in a timely manner. This case also demonstrates how fetal heart rate tracings are often key pieces of evidence in obstetric malpractice suits, despite recognition of the limitations of electronic monitoring in the professional literature (Freeman, 1990; Schifrin, 1995). Analyses of published reports on lawsuits frequently reveal that the tracings involved are of concern because of the presence of intermittent decelerations, increasingly severe decelerations over time, or decreased beat-to-beat variability (McRae, 1993). The courts frequently apply professional nursing standards in their decision-making process regarding quality of nursing care. To reduce hospital liability, assessment and documentation of nurses’ competence in antepartum and intrapartum fetal heart rate and uterine contraction monitoring must be performed as recommended by NAACOG (1991) or AWHONN (1993).The nurse must demonstrate competency in interpretation of the baseline fetal heart rate, periodic fetal heart rate changes, variability, and uterine activity (resting tone and contraction frequency, duration, and intensity). Chain of Command. The hospital’s duty to establish a mechanism for reporting and responding to any situation that is a threat to patient health and welfare and the nurse’s obligation to use this chain of command to notify administrators of a physician’s error were the major focus of a lawsuit occurring against an obstetrician and hospital in North Carolina. The case (Campbell u. Pitt County Memorial Hospital, Inc., 1987) involved a footling breech diagnosed by physicians several weeks before delivery. The patient told the admitting nurse that her physician had said the position of the fetus should be checked to see if it was still breech. A physical examination and pelvimetry confirmed the diagnosis of a footling breech, but this finding was not shared with the patient by the nurses or attending obstetrician. An electronic
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fetal ’monitor was used to assess the mother and fetus during labor. For several hours before delivery, changes in the fetal heart rate (FHR) pattern indicative of fetal distress were noted by the nurses. One nurse communicated this concern to the attending physician; however, she did not proceed to advise her supervisor or invoke an administrative chain-of-command action when the physician failed to respond to the information. The neonate was born by vaginal delivery approximately 2 hours later and subsequently had a diagnosis of brain damage, allegedly because of perinatal asphyxia from an entanglement of the umbilical cord with her legs. In this lawsuit, the plaintiffs claimed the hospital’s lack of an operational and effective mechanism to identify and respond to potentially harmful situations created a threat to the patient’s welfare that was a proximate cause of the child’s injuries (Trombly, 1990). The court noted that the hospital has “to make a reasonable effort to monitor and oversee the treatment which is prescribed and administered by physicians practicing at the facility” (Campbell v. Pitt County Memorial Hospital, Inc. [1987], citing Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391 [1980]). Having an effective mechanism for the prompt reporting and response to any situation that creates a threat to patient health and welfare was considered by the court to be part of that “reasonable effort.” In the previously cited case, a written policy for reporting situations posing a threat to the health of a mother or fetus would have guided the nurses and possibly reduced their risk of liability. This protocol should identify a hierarchy of communication (chain of command) for situations in which physicians do not respond to nursing concerns or in which differences in opinion exist between physicians and nurses. Informed Cortsent. One of the main functions of informed consent is to protect the patient’s right to selfdetermination about medical treatments. To make choices about treatment options, the patient must be sufficiently informed, in language she can reasonably be expected to understand, about the inherent risks and benefits of the medical procedure. Although the physician assumes legal responsibility for informing the patient of all of the inherent risks for medical procedures, many nurses review consent forms with patients, and some may actually obtain signatures on consent forms. A signed consent form is most likely to hold up in court when supported by documentation in the medical chart that the physician personally reviewed the information with the patient before signing (Schutte, 1995). In a recent suit involving the issue of liability for informed consent, the United States District Court for the Eastern District of Pennsylvania held that a hospital and its employee nurse had no duty to obtain informed consent. Although the case involved a patient undergo-
Volume 28, Number 3
ing a hysterectomy (Davis v. Hoffman, 972 F. Supp 308 [1997]), rather than an obstetric issue, it clearly illustrates how nursing responsibilities may become the focus of a suit. In this case, the court found the plaintiff's allegation that the nurse did not advise her of any alternative testing, treatment, or procedures, if proved, could support a finding that the nurse acted negligently. The court did not impose a duty to obtain informed consent on the nurse in this case; however, the prudent standard of care was applied in this suit (Tammelleo, 1997). Early Discharge. With the advent of early discharge programs in perinatal settings, nurses are assuming greater accountability for educating new mothers about infant care, signs and symptoms of neonatal illness, and arranging follow-up care. A recent California case involved the issue of early discharge of a full-term, postdate newborn who was returned to the hospital's emergency room at 6 days of age with differential diagnoses that included sepsis secondary to meningitis and intracerebral hemorrhage. Although the mother had a normal spontaneous vaginal delivery of the child after oxytocin induction, a cesarean section was considered as a delivery method at one point during labor because of the presence of deep variable decelerations and thick meconium on artificial rupture of the fetal membranes. During labor, an amnioinfusion was performed, and a urinalysis revealed 4+ bacteria per high power field. At birth the infant had Apgar scores of 7 and 8 but was noted to have the umbilical cord wrapped mice around his neck and bruising on the face. The infant was discharged home with the mother at approximately 18 hours of age, and the mother was advised to schedule a newborn appointment at a local clinic in 3 to 5 days. The nurses provided the mother with the telephone number of this facility; however, they did not schedule the appointment on the date specified in the physician's order sheet, allegedly because the hospital computer system was malfunctioning at the time of the discharge of the mother and child. No attempt was made to schedule the newborn's appointment by telephone. At the time of discharge, the mother was given a prescription for an antibiotic to treat her urinary tract infection. The mother testified that her infant had been feeding poorly in the hospital, showed facial bruising, and had an abnormal color. She claimed to have unsuccessfully attempted breastfeeding. Review of the neonatal medical record revealed axillary temperatures between 99.1" and 99.9" F and treatment of the infant with two gastric lavages. The nurse expert for the plaintiff in this case testified that the infant should have remained in the hospital for a longer observation period because of the maternal history and the newborn's physical findings. She claimed that although nurses are not responsible for discharging infants, they must be knowledgeable about Mayl'une
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the criteria for early discharge recommended by the American Academy of Pediatrics and ACOG (1992) and published in the nursing literature (Weekly & Neumann, 1997). Some of these criteria were not met (e.g., an uncomplicated vaginal delivery; infant normal by examination and able to feed without problems). In addition, the expert testified that the nurse failed to follow discharge guidelines of the hospital by 1) not informing the pediatrician about the mother's abnormal laboratory value on urine analysis before the infant's release; and 2) not arranging a well-baby appointment for the infant, including scheduling the date and time of the follow-up and documenting the information on the discharge form. A jury award favored the plaintiff in this case against a large county hospital.
Strategies for Risk Reduction in the Perinatal Setting Policies and Procedures Risk management in the perinatal setting requires the development and implementation of policies that ensure the nurse provider has the proper orientation, training, and credentials to give obstetric care (Gardner & Hagedorn, 1997). The Joint Commission on Accreditation of Healthcare Organizations (JCAHO, 1997) requires validation of these quality assurance processes. Completion of an orientation program should be a requirement of all new employees working in the perinatal setting, including professional nurses and UAPs. The hospital must maintain written records on the method of instruction and how nursing competencies are measured. A plan for continued competence evaluation also is needed. Professional accountability obligates nurses to be knowledgeable about hospital policies and procedures related to the setting and to follow written protocols. In birthing units that provide single-room maternity care, this necessitates competence in intraparturn, postpartum, and newborn nursing care. Knowledge and clinical skills in the latter two areas are similarly required for nurses working in maternal-infant units. The procedures and policies outlined in the hospital manuals must be clearly written and in accord with current local and national standards of care that provide guidelines for nursing practice (such as those by ACOG, AWHONN, JCAHO). Examples of important policies that should be contained in a procedure manual include nursing documentation in the medical record and on electronic fetal monitor (EFM) tracings; assessment of women in labor; oxytocin administration for induction and augmentation; FHR monitoring; care of women with nonreassuring FHR patterns; assessment of postpartum women and newborns; early discharge of postpartum women and infants, and the chain of command.
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In addition, there should be clear procedures and protocols for dealing with patients who do not speak English and for videotaping. Policies should address actions to be taken to ensure that patients who do not speak English understand communications from nurses and other health care professionals. When possible, translators should be available on site to assist in interpreting instructions and information and obtaining informed consent. Depending on other family members to ensure the patient understands communications is risky because the language skill level can not be assessed. If a large percentage of patients are from a particular background, nurses should be encouraged to learn the language, if possible; otherwise, all reasonable measures must be taken to promote patient understanding (such as the use of picture displays and demonstration). Before developing a hospital policy regarding videotaping, the institution must carefully weigh the benefits and risks associated with permitting families to videotape in the obstetric setting. Some hospitals have passed rules to limit video cameras in birthing areas because these recordings often are permissible evidence in malpractice cases. Eitel, Yankowitz, and Ely (1998) have made recommendations for reducing the potential liability of video recording (see Table 2). Hospital policies and procedures must be regularly reviewed and updated as necessary to ensure consistency with the established standards of the specialty organization. Concerns about specific policies (such as their accuracy and comprehensiveness) should be dis-
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TABLE 2
cussed with the nursing supervisor or appropriate member of the quality assurance team.
Documentation The medical record should provide a factual, complete, and objective account of how the nursing process (assessment, diagnosis, interventions, and evaluation) was implemented, including direct and indirect communications among health care professionals. Only clinically relevant information should be documented. Data contained in the record may assist other caregivers in formulating diagnoses, developing management strategies, evaluating patient outcomes, and providing information for risk-management purposes. Information not related to the patient’s care, such as the filing of incident reports or descriptions of conflicts between nursing staff and physicians regarding management issues or interpretations of FHR tracings, should be addressed through the appropriate institutional channels, rather than recorded on the patient’s medical record.
T h e medical record should provide a factual, complete, and objective account of how the nursing process (assessment, diagnosis, interventions, and evaluation) was implemented, including direct and indirect communications among health care professionals.
Steps to Reduce Liability Risks With Video Recording of Births By Parents I . Explain policies about videotaping in a predelivery
interview 2. (.)htain written conscnt from the patient as to whether the film can be o f the entire delivery or only specific: portions (c.g.. restricting time and place o f videotaping) 3 . Iriforrn the pntient that it m;iy be necessary t o discontinue the videotaping at the physician’s o r other health cart provider’s discretion 4. Enter into the nicdicnl record that the delivery is being photographed at the patient’s request 5. Consider rqtiiring that n o audio recording be done 6. Alcrt statf t o the prcscncc of the video camera arid remind thcm, as necessary, about guidelines for professional activity I:itcl. l),l<,, Y.inko\vitz, I., & El!, J. W, 19‘)X). 1.cg.d iniplicntions of birth m k o s . j o i i m i l ~ j f ’ F i ~ i 7 7 r l ~ h l d c ~ !46. . 2.5 1-2.56. Uwd with pcrniission.
N o f ~(:oinpilcJ : from (
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Nursing assessments (such as the status of the laboring woman and fetus) and the frequency of patient monitoring should be clearly recorded on the appropriate forms (e.g., intrapartum flow sheets or checklists, progress notes). National standards require that documentation for women receiving EFM include interpretation of baseline FHR, presence of accelerations, longterm variability, and periodic changes and the frequency and duration of uterine contractions and resting tone (NAACOG, 1980, 1990, 1991). The assessment of maternal and fetal status must be documented through the second stage of labor. If an internal fetal scalp electrode is applied, the nurse also must describe short-term FHR variability. During the hour of shift change, women should not be left unattended,. and documentation of monitoring must be continued. In the event that the EFM tracing suggests a compromised fetus, immediate nursing intervention is nec-
Volume 28, Number 3
essary, and the physician must be notified. A professional nurse who fails to recognize or ignores a progressively deteriorating or ominous tracing does not possess the required competencies required in the specialty field. In emergency situations in which time constraints prevent the nurse from maintaining a contemporaneous record of interventions and communications with the physician or patient, an entry should be made soon after the occurrence. The date and time are placed adjacent to the detailed note. This late entry is particularly important because in the event of a poor birth outcome, lack of documentation may be interpreted as a failure to meet the standard for nursing care in communication (such as reporting to a physician). When a specific technology is unavailable (such as EFM) and can not be used as ordered by the physician, the nurse is responsible for documenting this lack of equipment and exercising clinical judgment with regard to alternative treatment -strategies. The physician needs to be advised concerning the problem, with discussion focusing on what other actions may be taken to assess the patient (such as auscultation of fetal heart rate and palpation of uterine contractions) until the equipment becomes available. All procedures used in a vaginal delivery of singleton breech and shoulder dystocia should be carefully described in chronological order. Treatment often includes application of suprapubic pressure and use of the McRobert’s maneuver. The nurse should record the exact time the head and body were delivered and results of the newborn assessment (such as the condition of the involved arm or hand). When operative interventions are performed, recordings related to fetal status and station immediately before delivery may provide data to support the practitioner’s clinical decision. Another important area for documentation relates to oxytocin administration. The medication should be administered according to the hospital’s protocol for dosage and frequency of rate increases. The nurse must continuously observe for side effects of oxytocin administration and document these in the labor record. The drug is discontinued in the presence of abnormal uterine contraction patterns (such as tetanic contractions or coupling of contractions) or abnormal FHR patterns per hospital requirements. If a physician’s orders are contrary to hospital policy or national standards, the nurse should discuss the order with the physician and, if necessary, involve a supervisor. The chain of command may be invoked to protect the safety of the laboring woman and her unborn child if all other efforts fail. Analysis of medical malpractice claims demonstrates the importance of documenting communications related to informed consent and early discharge. Regardless of whether the nurse actually obtains the patient’s signature on an informed consent form, dis-
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cussions (e.g., risks, benefits, and alternatives considered) should be recorded in the medical record. If a patient refuses a treatment or procedure, the reasons for this decision should be described. Early discharge programs necessitate providing patients with time- and action-specific written instructions, which also are entered in the medical record (e.g., “If your newborn has a temperature above 101” F, call your pediatrician or the pediatric clinic immediately,’’ “Bring your infant to the pediatric clinic at [time] on [date]”). Before assuming patients can read written instructional materials, nurses should assess their level of literacy. Pictures should be used when possible for illustration purposes and to decrease the complexity of the information. Copies of checklists such as discharge instructions for the newborn that require a signature by the nurse and mother should be included in the chart.
When an Unfavorable Birth Outcome Occurs If an adverse maternal or fetal event occurs or if an infant is compromised at birth, the hospital quality assurance and risk management team should be notified immediately. Hospital protocols vary with regard to the requirements for completing incident reports. This document and other information collected as part of quality assurance review generally are not discoverable in malpractice cases. The risk manager or designated patient advocate should promptly advise the family that the entire incident is being reviewed and the results will be shared with them (Holder, 1997).The use of effective communication skills with families is essential; such skills include demonstration of empathy, honesty, and sincere concern. Families need to express their emotions, including anger and disappointment.
T h e use of effective communication skills with families is essential; such skills include demonstration of empathy, honesty, and sincere concern.
Delegation and Downsizing Cost containment strategies in hospitals may result in restructuring or downsizing of perinatal units. Employment of UAPs to replace nurses or to assist professional staff raises concerns about potential liability exposure. In these situations nurses remain personally liable for their own acts of negligence; however, the hospital is legally accountable to provide an adequate number of staff and to make certain that the staff (including
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UAPs) is qualified to assume the job (Fiesta, 1997). When concerns about patient safety and quality care in the perinatal setting arise because of downsizing or delegation, the professional nurse has the legal duty to communicate with administration about these concerns. Information about problems in the clinical area related to staffing must be continuously communicated with management. The administrator is responsible for solving problems within hidher level of control or to continue the line of communication up the chain of command until it reaches the highest levels of the organization (e.g., executive officers of the hospital, board of trustees) (Fiesta, 1997). Professional nurses responsible for supervising and determining the appropriate use of UAPs must possess a clear understanding of the legal and professional definitions of the concept of delegation. This knowledge will enable them to appropriately use UAPs for direct patient care in the perinatal setting. According to the American Nurses Association (1994, p. 10): Delegation is the transfer of responsibility for the performance of a task from one person to another. The delegation of an activity passes on the responsibility for task performance but not the accountability for the process or the outcome of the task.
Unlicensed assistive personnel assigned to a task assume legal responsibility for accepting the delegation and for their own actions in performing the task. In delegating tasks to UAPs, nurses must carefully differentiate between patient care activities that may be appropriately performed by an unlicensed staff member and those that require the specialized knowledge, clinical experience, and judgment of a professional nurse. For example, UAPs may assist in taking vital signs but should not perform an admission assessment, determine risk status, or interpret FHR patterns. To delegate comprehensive assessments and care planning would be inappropriate and a violation of the state nursing practice act and national practice standards (American Nurses Association, 1994). The nurse should determine what components of nursing care may be delegated based on several factors (see Table 3 ) . To decrease potential liability, hospitals should maintain personnel files that document the training or education of UAPs and their competencies in performing selected patient care activities. As with nurses, UAPs should be evaluated initially on employment and at periodic intervals for competencies. Hospital policies should clearly define which tasks may be performed by UAPs and which are limited to professional nurses, based on state laws and professional practice standards. Within specific clinical areas such as birthing centers, administrators and professional nurses may elect to establish additional guidelines for delegation of tasks and supervision of UAPs. 298 JOGNN
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TABLE 3
Factors to Consider in Delegating Tasks to Unlicensed Assistive Personnel 1. The capabilities, training, and clinical experiences
of the unlicensed assistive personnel 2 . The risk status of the childbearing woman 3. The phase and stage of labor of the childbearing woman 4. The complexity o f the task to he delegated 5. The amount of time available for nursing supervision of the unlicensed assistive pcrsonnel
Summary In this era of increasing malpractice claims, it is particularly important that perinatal nurses maintain the standard of care established by their employer, local community hospitals, professional organizations, state licensing boards, and their education. Hospitals must ensure that obstetric nurses possess and maintain competence in the clinical skills needed for delivering safe nursing care. Clearly defined hospital policies consistent with the standards of the profession are needed to guide nursing practice and to minimize nurses’ liability in claims of negligence. A variety of strategies have been described to promote quality assurance in perinatal settings and to decrease the potential threat of malpractice suits.
REFERENCES American Academy of Pediatrics and American College of Obstetricians and Gynecologists (ACOG). (1992). Guidelines for perinatal care (3rd ed.). Washington, DC: Author. American Nurses Association. (1994). Registered professional nurses and unlicensed assistive personnel. Washington, DC: American Nurses Publishing. Association of Women’s Health, Obstetric, and Neonatal Nurses (AWHONN). (1993). Didactic content and clinical skills verification for professional nurse providers of basic, high-risk and critical-care intraparturn nursing. Washington, DC: Author. Bentley-Lewis, R. (1996, August). Obstetrics-related claims. Forum [Online serial], 2 7 ( 3 ) , 1-4. Available: www.rmf.org/rmf/b4564.html. Campbell v. Centinela Hospital Medical Center. (1994, April 29). No: YC 0122-998. Jury Verdict Weekly, 38(17), 23-25. Campbell v. Pitt County Memorial Hospital, Inc., 352 S.E.2d 902 [N.C.App. 19871. Davis v. Hoffman, 972 F. Supp 308, 1997. Eitel, D. R., Yankowitz, J., & Ely, J. W. (1998). Legal implications of birth videos. The Journal of Family Practice, 46, 251-256. Fiesta, J. (1988). The law and liability: A guide for nurses (2nd ed.). New York: Wiley.
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Fiesta, J. (1997). Delegation, downsizing and liability. Nursing Management, 28, 14. Fraijo v. Harland Hospital, 160 Cal Rep 246 (1979). Freeman, R. (1990, Mar 1)Intrapartum fetal monitoring-a disappointing story [editorial; comment]. New England Journal of Medicine, 322, 624-626. Gardner, S. L., & Hagedorn, M. I. E. (1997). Legal aspects of maternal-child nursing practice. Menlo Park, CA: Addison-Wesley, 95-1 42. Griffin, L. P., Heland, K. V., Esser, L., & Jones, S. (1998, March/April). Overview of the 1996 professional liability survey. ACOG Clinical Review [Online serial], 3(2), 1-2, 13. Hickson, G. B., Clayton, E. W., Entman, S. S., Miller, C. S., Githens, P. B., Whetten-Goldstein, K., & Sloan, F. A. (1994). Obstetricians’ prior malpractice experience and patients’ satisfaction with care. Journal of the American Medical Association, 272, 1583-1587. Holder, W. L. (1997, October). Shark-proof your practice. How the law is every nurse’s best ally. Lifelines, 1(5), 53-57. Joint Commission on Accreditation of Healthcare Organizations. (1997).Accreditation manual for hospitals, Vol1. Standards. Oak Brook Terrace, IL: Author. Levinson, W., Roter, D. L., Mullooly, J. P., Dull, V. T., & Frankel, R. M. (1997). Physician-patient communication. Journal of the American Medical Association, 177, 553-559. McMullen, P. (1990).Liability in obstetrical nursing. Nursing Connections, 3, 61-64. McRae, M. J. (1993). Litigation, electronic fetal monitoring, and the obstetric nurse. JOGNN, 22, 410-418. National Practitioner Data Bank. (1998, April). 2997 annual report. Chantilly, VA: Author. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1981). The nurse’s role in electronic fetal monitoring. NAACOG Technical Bulletin, 7, 1-5. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1990). Fetal heart rate auscultation. Washington, DC: Author.
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Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1991). Nursing practice competencies and educational guidelines, antepartum surveillance and intrapartum fetal heart monitoring (2nd ed.). Washington, DC: Author. Phillips, J. (1995). Homeless nurses and feeling homeless in nursing. Nursing Science Quarterly, 8, 55-56. Schifrin, B. S. (1995). Medicolegal ramifications of electronic fetal monitoring during labor. Clinics in Perinatology, 22, 837-854. Stolte, K., Myers, S. T., & Owen, W. L. (1994). Changes in maternity care and the impact on nurses and nursing practice. ]ournal of Obstetric, Gynecologic, & Neonatal Nursing, 23, 603-608. Schutte, J. E. (1995). Preventing medical malpractice suits. Seattle: Hogrefe & Huber. Tammelleo, A. D. (1997). PA: No liability for informed consent: ‘Prudent nurse’ explanation standard applies. Regan Report on Nursing Law, 38, 3. Trombly, S. T. (April 1990). Legal forum: The duty to establish communication channels. Forum. [Online] Available: http:/www.rmf.org/www/rmf/b3664.htm. Volk, L. A. (October 1995). Overview of CRICO claims data. Forum, [Online] Available: http:/www. rmf.org/rmf/ b3430.html Weekly, S. J., & Neumann, M. L. (1997). Speaking up for baby: The case for individualized neonatal discharge plans. Lifelines, 1(l),24-29. Weiler, P. C., Hiatt, H. H., Newhouse, J. l?, Johnson, W. G., Brennan, T. A., & Leape, L. L. (1993).A measure of malpractice. Cambridge, MA: Harvard University Press.
Deborah Koniak-Griffin is a Professor in the UCLA School of Nursing in Los Angeles, CA.
Address for correspondence: Deborah Koniak-Griffin, EdD, RNC, FAAN, PO Box 956929, Factor Building, 5-232, Los Angeles, C A 90095-6919.
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Perinatal nurses are involved in malpractice litigation most often as employees of a hospital being sued. Contemporary case examples from malpractice claims provide the foundation for examining how perinatal nurses can become the focus of such litigation. Increasing demand for individual nurse accountability, cost containment strategies that require nurses to broaden their scope of practice and to supervise unlicensed assistive personnel, increasing use of medical technologies, and the reality of compromised newborns and unexplained outcomes place perinatal nurses at risk for continued malpractice vulnerability. Specific strategies for risk reduction can be used by the individual nurse and the institution in relation to hospital policies and procedures, application of the nursing process, documentation, birth videos, and delegation of tasks to unlicensed assistive personnel.
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28,291 -299; 1999.
Accepted: December 1998
During the past 2 decades the number of malpractice cases involving childbirth issues has risen dramatically. Obstetric care was involved in 61.5% of claims reported for the survey period of 1992 to 1995 by the American College of Obstetricians and Gynecologists (ACOG) (Griffin, Heland, Esser, & Jones, 1998). Findings of this survey revealed that in 1992, obstetricians/gynecologists were second only to surgeons in the number of professional liability claims filed against them. The large settlements associated with these cases have gained the attention of health care professionals and the public. Most obstetric claims involve alleged injury to the fetus, neonate, or mother during the process of labor and delivery. Although most of these cases are Mayl'une 1999
directed primarily at physicians and hospitals, the professional actions of nurses are increasingly becoming a focus in malpractice litigation, most frequently in civil lawsuits classified as torts (wrongs committed by an individual, intentionally or unintentionally, against another person or the property of another). The involvement of nurses in obstetric malpractice litigation occurs most often because they are employees of the hospital being sued. The hospital is vicariously liable for any breach of duties by its employees working within the scope of their employment. Vicarious liability is almost an automatic accountability, whereby if a nurse is found negligent, the hospital is held liable for its employee's actions (Fiesta, 1988). Nurses, although they may be named as individual defendants, are much less frequently targeted in malpractice suits than are physicians and hospitals. However, the courts recognize nursing as an autonomous profession responsible for its own practice and possessing a unique body of knowledge. This article describes some of the clinical challenges faced by nurses employed in hospital obstetric settings, using examples of malpractice litigation to illustrate key points. Common nursing issues involved in obstetric malpractice cases are reviewed, and specific strategies for risk reduction are recommended. As background for the discussion, data on obstetric claims are presented, and the four elements of malpractice are reviewed.
Background Consumers of health care have increasingly become aware of advances in technology and the
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specialized training of clinicians. Childbearing families enter the hospital expecting to have a healthy child and trusting the staff will make this dream a reality. When a bad outcome occurs, some parents may believe that a mistake has been made and attribute the problem to the care provided by one or more members of the health care team. Their despair over a sick newborn or a fetal demise may provide the impetus for a future malpractice claim. Medical malpractice lawsuits are based on the assumption that the health care provider failed to meet the professional standard of care, and as a result, the patient experienced an injury. A definition of the standard of care for nurses has been established by the courts:
TABLE 1
Four Elements of Successful Malpractice Claims 1. The existence of a duty by the professional within the context of a relationship (e.g., nurse-patient, physician-patient) 2. The applicable standard of care and its violation (breach of duty) 3. A compensable injury to the patient 4. A causal connection between the violation of the standard of care and the patient’s injury
M e d i c a l malpractice lawsuits are based on the assumption that the health care provider failed to meet the professional standard of care, and as a result, the patient experienced an injury.
It is the duty of one who undertakes to perform the services of a trained or graduate nurse to have the knowledge and skill ordinarily possessed, then to exercise the care and skill ordinarily used in like situations, by trained and skilled members of the nursing profession practicing their profession in the same or similar circumstances (Fraijo u. Harland Hospital, 1979). Materials that may be used as evidence in malpractice cases to support expert opinions about standard-of-care issues include hospital bylaws, procedures, and nursing policies; guidelines published by professional organizations such as Association of Women’s Health, Obstetric, and Neonatal Nurses (AWHONN) (formerly Nurses Association of the American College of Obstetricians and Gynecologists [NAACOG]); state nurse practice acts; and publications of other groups, such as the Joint Commission on Accreditation of Healthcare Organizations. In medical malpractice litigation, negligence is the predominant theory of liability. Nurses may be accused of negligence when they fail to demonstrate reasonable and prudent behavior in their practice. To establish a verdict of malpractice, the patient’s (plaintiff‘s) attorney must establish four elements (see Table 1). Breach of duty occurs when the nurse fails to provide care as described by nursing practice standards. Disputes over whether a case of medical treatment was negligent and
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what injuries the patient experienced as a result are ultimately resolvable in a civil trial before a jury. However, in practice approximately 90% of such claims are settled through voluntary negotiation before going to trial (Weiler et al., 1993). Plaintiff verdicts can be obtained only if jurors believe that substandard care led to the injuries (causation).Expert witnesses argue on the side of both the plaintiff and the defense (hospital, physicians, nurses) regarding whether or not the standard of care was violated and if the alleged violations caused harm or injury to the patient. An examination of 1987 to 1995 malpractice claims by the Controlled Risk Insurance Company (CRICO) (for Harvard-affiliated medical institutions and their employees) shows that obstetrics/gynecology is among the specialties named most often in such claims. Within this area, the most common allegations involve treatment of fetal distress, peripartum care, and prenatal care (Bentley-Lewis, 1996). In many cases, delay in the treatment of fetal distress allegedly was the cause of a birth-related injury, such as cerebral palsy. The chief evidence used by many plaintiff attorneys is fetal heart rate tracings, which are subject to interpretation by experts. Of the obstetrics/gynecology CRICO claims in 1994, 32% represent actual or potential losses of $500,000 or more (Volk, 1995). Data from the 1996 ACOG Professional Liability Survey showed that 73 % of obstetricians/gynecologists have had at least one professional liability claim filed against them during their careers, with a career average of 2.31 claims (Griffin et al., 1998). The primary allegation in many of these claims against obstetricians/gynecologists was birth of a “neurologically impaired infant,” which accounts for a large percentage of payments. Most of the reported cases ended in favor of the obstetriciadgynecologist by way of a jury defense or court verdict (78%)or through the lawsuit being dropped or the plaintiff settling without payment. A variety of professional actions by the nurse may be focused on in malpractice lawsuits. McMullen (1990) identified five major omissions of labor and
Volume 28, Number 3
delivery nurses in liability cases: 1) failure to monitor appropriately the client’s and fetus’s status; 2) inappropriate oxytocin monitoring or use; 3 ) failure to notify the physician in a timely manner; 4) initiation of procedures without adequate client information or consent; and 5 ) improper sponge or instrument counts during cesarean section. Another common allegation is failure to diagnose properly (e.g., maternal hemorrhage, infection, macrosomia). Maternal and fetal death suits may involve issues of undiagnosed hemorrhage, whereas many birth trauma cases involve shoulder dystocia, resulting in neonatal conditions such as Erb’s palsy. Malpractice claims against nurses are reported to state boards of nursing. Any written demand that results in a payment on behalf of a registered nurse or nurse practitioner must be reported by the insurer to the National Practitioner Data Base (NPDB). Reported payments for nurses are relatively rare, accounting for 1.7% of all payments throughout the history of the NPDB. Two-thirds of nurse payments were for nonspecialized registered nurses and 24% for nurse anesthetists, in contrast to 5.9% for midwives and 3.8% for nurse practitioners (NPDB, 1998). The NPDB data reveal that monitoring, treatment, and medication problems account for most payments for nonspecialized nurses, but obstetric and surgery-related problems also are responsible for a significant number of payments. In the next century, nurses may expect to continue to be implicated in malpractice cases for four major reasons. First, increased demands for individual accountability are being created by the expanding scope of nursing practice and changes in the health care system. Familycentered care has created the need for nurses with knowledge and skills in all phases of childbearing and newborn care, and many hospitals are cross-training nurses to provide services in all obstetric areas. Although insufficient cross training of nurses may increase the potential for liability, the holistic approach that guides family-centered care may in many cases reduces such a potential. Second, cost containment strategies have resulted in shortened hospital stays, downsizing of nursing staff, and increased use of unlicensed assistive personnel (UAPs). Employing UAPs to lower costs has the potential of weakening the “intricate web of safe, high-quality health care” (Phillips, 1995, p. 55). Nurses are responsible for other staff who assume nursing tasks through delegation. Liability risks may be associated with these individuals if they are not competent or have been inappropriately assigned to tasks. Claims of negligence also may include issues related to inadequate staffing. Third, the use of technologies such as electronic fetal monitoring results in higher patient expectations of perfect outcomes, increasing the chances for litigation (Stolte, Myers, & Owen, 1994).
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Finally, liability risks exist as a result of the reality that there continue to be compromised newborns and unexplained events involved (Holder, 1997). In addition, there are some cases in which mistakes are made, and hospitals, physicians, and nurses are liable.
Examples of Nursing Issues in Malpractice Claims Communication In malpractice claims involving communication issues, allegations often relate to interactions (direct or indirect) between nurses or patients and other members of the health care team, such as physicians. Questions addressed in legal proceedings frequently relate to 1) whether the nurse communicated relevant clinical information to the obstetrician; 2) use of the chain of command to protect the safety and well-being of the obstetric patient and unborn child; and 3 ) whether the patient was adequately advised of the risks and benefits of a treatment or procedure and provided informed consent. Research findings suggest an association between communication behaviors and malpractice claims (Hickson et al., 1994). Providing explanation before initiation of procedures, using humor, and spending more time with patients have been found to characterize primary care physicians who have never faced a malpractice suit in comparison to those who have been sued (Levinson, Roter, Mullooly, Dull, & Frankel, 1997). A malpractice lawsuit often can be prevented by prompt, deliberate, frank, and caring interaction with the perinatal team and the family (Holder, 1997). Communication of Clinical Findings. The case of Campbell v. Centinela Hospital Medical Center (1994) illustrates obstetric nurses’ accountability to communicate with the obstetrician about fetal distress and to notify the neonatologist in a timely manner. The plaintiff, an 18-year-old, was admitted to the hospital in labor at 6 a.m. Oxytocin augmentation was begun at noon. Although the fetal heart rate initially was normal, a deceleration to 60 bpm with a duration of 8 minutes was noted to begin at 6 p.m., when the obstetrician was in attendance; repeated severe variable and late decelerations were observed during the next 2 hours. Transfer to the delivery room occurred at 8 p.m. Fetal heart rate monitoring was not conducted for the 22-minute period preceding the vaginal birth because a monitor was unavailable in the delivery room. The infant’s initial Apgar score was 0, and the neonate required cardiopulmonary resuscitation by the respiratory therapist and nurses in the delivery room. The infant was first seen by the neonatologist at 9 p.m. The plaintiff’s attorney in this case contended that the defendant’s obstetric nurses failed to recognize fetal distress; failed to take actions that would have led to a
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cesarean section; failed to assess the fetal heart rate in the delivery room, which would have shown terminal bradycardia; and failed to call the neonatologist promptly, resulting in delayed treatment of the infant’s acidosis. The hospital defense was based on the contention that its obstetric nurses deferred to the obstetrician’s judgment and interpretation of the fetal monitor strip; that the obstetrician was in charge and the nurses could not independently intervene and order a cesarean section; and that delayed treatment of acidosis did not cause the infant’s injury. The obstetrician settled separately before trial for nearly $1 million, and the trial resulted in a plaintiff verdict against the hospital in excess of $10 million. The outcome of this case illustrates how the court viewed the nurse’s actions as a hospital employee: the nurse was not expected to defer all judgment to the physician, but was required to act independently to protect the well-being of the mother and unborn child and to communicate with the neonatologist in a timely manner. This case also demonstrates how fetal heart rate tracings are often key pieces of evidence in obstetric malpractice suits, despite recognition of the limitations of electronic monitoring in the professional literature (Freeman, 1990; Schifrin, 1995). Analyses of published reports on lawsuits frequently reveal that the tracings involved are of concern because of the presence of intermittent decelerations, increasingly severe decelerations over time, or decreased beat-to-beat variability (McRae, 1993). The courts frequently apply professional nursing standards in their decision-making process regarding quality of nursing care. To reduce hospital liability, assessment and documentation of nurses’ competence in antepartum and intrapartum fetal heart rate and uterine contraction monitoring must be performed as recommended by NAACOG (1991) or AWHONN (1993).The nurse must demonstrate competency in interpretation of the baseline fetal heart rate, periodic fetal heart rate changes, variability, and uterine activity (resting tone and contraction frequency, duration, and intensity). Chain of Command. The hospital’s duty to establish a mechanism for reporting and responding to any situation that is a threat to patient health and welfare and the nurse’s obligation to use this chain of command to notify administrators of a physician’s error were the major focus of a lawsuit occurring against an obstetrician and hospital in North Carolina. The case (Campbell u. Pitt County Memorial Hospital, Inc., 1987) involved a footling breech diagnosed by physicians several weeks before delivery. The patient told the admitting nurse that her physician had said the position of the fetus should be checked to see if it was still breech. A physical examination and pelvimetry confirmed the diagnosis of a footling breech, but this finding was not shared with the patient by the nurses or attending obstetrician. An electronic
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fetal ’monitor was used to assess the mother and fetus during labor. For several hours before delivery, changes in the fetal heart rate (FHR) pattern indicative of fetal distress were noted by the nurses. One nurse communicated this concern to the attending physician; however, she did not proceed to advise her supervisor or invoke an administrative chain-of-command action when the physician failed to respond to the information. The neonate was born by vaginal delivery approximately 2 hours later and subsequently had a diagnosis of brain damage, allegedly because of perinatal asphyxia from an entanglement of the umbilical cord with her legs. In this lawsuit, the plaintiffs claimed the hospital’s lack of an operational and effective mechanism to identify and respond to potentially harmful situations created a threat to the patient’s welfare that was a proximate cause of the child’s injuries (Trombly, 1990). The court noted that the hospital has “to make a reasonable effort to monitor and oversee the treatment which is prescribed and administered by physicians practicing at the facility” (Campbell v. Pitt County Memorial Hospital, Inc. [1987], citing Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391 [1980]). Having an effective mechanism for the prompt reporting and response to any situation that creates a threat to patient health and welfare was considered by the court to be part of that “reasonable effort.” In the previously cited case, a written policy for reporting situations posing a threat to the health of a mother or fetus would have guided the nurses and possibly reduced their risk of liability. This protocol should identify a hierarchy of communication (chain of command) for situations in which physicians do not respond to nursing concerns or in which differences in opinion exist between physicians and nurses. Informed Cortsent. One of the main functions of informed consent is to protect the patient’s right to selfdetermination about medical treatments. To make choices about treatment options, the patient must be sufficiently informed, in language she can reasonably be expected to understand, about the inherent risks and benefits of the medical procedure. Although the physician assumes legal responsibility for informing the patient of all of the inherent risks for medical procedures, many nurses review consent forms with patients, and some may actually obtain signatures on consent forms. A signed consent form is most likely to hold up in court when supported by documentation in the medical chart that the physician personally reviewed the information with the patient before signing (Schutte, 1995). In a recent suit involving the issue of liability for informed consent, the United States District Court for the Eastern District of Pennsylvania held that a hospital and its employee nurse had no duty to obtain informed consent. Although the case involved a patient undergo-
Volume 28, Number 3
ing a hysterectomy (Davis v. Hoffman, 972 F. Supp 308 [1997]), rather than an obstetric issue, it clearly illustrates how nursing responsibilities may become the focus of a suit. In this case, the court found the plaintiff's allegation that the nurse did not advise her of any alternative testing, treatment, or procedures, if proved, could support a finding that the nurse acted negligently. The court did not impose a duty to obtain informed consent on the nurse in this case; however, the prudent standard of care was applied in this suit (Tammelleo, 1997). Early Discharge. With the advent of early discharge programs in perinatal settings, nurses are assuming greater accountability for educating new mothers about infant care, signs and symptoms of neonatal illness, and arranging follow-up care. A recent California case involved the issue of early discharge of a full-term, postdate newborn who was returned to the hospital's emergency room at 6 days of age with differential diagnoses that included sepsis secondary to meningitis and intracerebral hemorrhage. Although the mother had a normal spontaneous vaginal delivery of the child after oxytocin induction, a cesarean section was considered as a delivery method at one point during labor because of the presence of deep variable decelerations and thick meconium on artificial rupture of the fetal membranes. During labor, an amnioinfusion was performed, and a urinalysis revealed 4+ bacteria per high power field. At birth the infant had Apgar scores of 7 and 8 but was noted to have the umbilical cord wrapped mice around his neck and bruising on the face. The infant was discharged home with the mother at approximately 18 hours of age, and the mother was advised to schedule a newborn appointment at a local clinic in 3 to 5 days. The nurses provided the mother with the telephone number of this facility; however, they did not schedule the appointment on the date specified in the physician's order sheet, allegedly because the hospital computer system was malfunctioning at the time of the discharge of the mother and child. No attempt was made to schedule the newborn's appointment by telephone. At the time of discharge, the mother was given a prescription for an antibiotic to treat her urinary tract infection. The mother testified that her infant had been feeding poorly in the hospital, showed facial bruising, and had an abnormal color. She claimed to have unsuccessfully attempted breastfeeding. Review of the neonatal medical record revealed axillary temperatures between 99.1" and 99.9" F and treatment of the infant with two gastric lavages. The nurse expert for the plaintiff in this case testified that the infant should have remained in the hospital for a longer observation period because of the maternal history and the newborn's physical findings. She claimed that although nurses are not responsible for discharging infants, they must be knowledgeable about Mayl'une
1999
the criteria for early discharge recommended by the American Academy of Pediatrics and ACOG (1992) and published in the nursing literature (Weekly & Neumann, 1997). Some of these criteria were not met (e.g., an uncomplicated vaginal delivery; infant normal by examination and able to feed without problems). In addition, the expert testified that the nurse failed to follow discharge guidelines of the hospital by 1) not informing the pediatrician about the mother's abnormal laboratory value on urine analysis before the infant's release; and 2) not arranging a well-baby appointment for the infant, including scheduling the date and time of the follow-up and documenting the information on the discharge form. A jury award favored the plaintiff in this case against a large county hospital.
Strategies for Risk Reduction in the Perinatal Setting Policies and Procedures Risk management in the perinatal setting requires the development and implementation of policies that ensure the nurse provider has the proper orientation, training, and credentials to give obstetric care (Gardner & Hagedorn, 1997). The Joint Commission on Accreditation of Healthcare Organizations (JCAHO, 1997) requires validation of these quality assurance processes. Completion of an orientation program should be a requirement of all new employees working in the perinatal setting, including professional nurses and UAPs. The hospital must maintain written records on the method of instruction and how nursing competencies are measured. A plan for continued competence evaluation also is needed. Professional accountability obligates nurses to be knowledgeable about hospital policies and procedures related to the setting and to follow written protocols. In birthing units that provide single-room maternity care, this necessitates competence in intraparturn, postpartum, and newborn nursing care. Knowledge and clinical skills in the latter two areas are similarly required for nurses working in maternal-infant units. The procedures and policies outlined in the hospital manuals must be clearly written and in accord with current local and national standards of care that provide guidelines for nursing practice (such as those by ACOG, AWHONN, JCAHO). Examples of important policies that should be contained in a procedure manual include nursing documentation in the medical record and on electronic fetal monitor (EFM) tracings; assessment of women in labor; oxytocin administration for induction and augmentation; FHR monitoring; care of women with nonreassuring FHR patterns; assessment of postpartum women and newborns; early discharge of postpartum women and infants, and the chain of command.
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In addition, there should be clear procedures and protocols for dealing with patients who do not speak English and for videotaping. Policies should address actions to be taken to ensure that patients who do not speak English understand communications from nurses and other health care professionals. When possible, translators should be available on site to assist in interpreting instructions and information and obtaining informed consent. Depending on other family members to ensure the patient understands communications is risky because the language skill level can not be assessed. If a large percentage of patients are from a particular background, nurses should be encouraged to learn the language, if possible; otherwise, all reasonable measures must be taken to promote patient understanding (such as the use of picture displays and demonstration). Before developing a hospital policy regarding videotaping, the institution must carefully weigh the benefits and risks associated with permitting families to videotape in the obstetric setting. Some hospitals have passed rules to limit video cameras in birthing areas because these recordings often are permissible evidence in malpractice cases. Eitel, Yankowitz, and Ely (1998) have made recommendations for reducing the potential liability of video recording (see Table 2). Hospital policies and procedures must be regularly reviewed and updated as necessary to ensure consistency with the established standards of the specialty organization. Concerns about specific policies (such as their accuracy and comprehensiveness) should be dis-
-
TABLE 2
cussed with the nursing supervisor or appropriate member of the quality assurance team.
Documentation The medical record should provide a factual, complete, and objective account of how the nursing process (assessment, diagnosis, interventions, and evaluation) was implemented, including direct and indirect communications among health care professionals. Only clinically relevant information should be documented. Data contained in the record may assist other caregivers in formulating diagnoses, developing management strategies, evaluating patient outcomes, and providing information for risk-management purposes. Information not related to the patient’s care, such as the filing of incident reports or descriptions of conflicts between nursing staff and physicians regarding management issues or interpretations of FHR tracings, should be addressed through the appropriate institutional channels, rather than recorded on the patient’s medical record.
T h e medical record should provide a factual, complete, and objective account of how the nursing process (assessment, diagnosis, interventions, and evaluation) was implemented, including direct and indirect communications among health care professionals.
Steps to Reduce Liability Risks With Video Recording of Births By Parents I . Explain policies about videotaping in a predelivery
interview 2. (.)htain written conscnt from the patient as to whether the film can be o f the entire delivery or only specific: portions (c.g.. restricting time and place o f videotaping) 3 . Iriforrn the pntient that it m;iy be necessary t o discontinue the videotaping at the physician’s o r other health cart provider’s discretion 4. Enter into the nicdicnl record that the delivery is being photographed at the patient’s request 5. Consider rqtiiring that n o audio recording be done 6. Alcrt statf t o the prcscncc of the video camera arid remind thcm, as necessary, about guidelines for professional activity I:itcl. l),l<,, Y.inko\vitz, I., & El!, J. W, 19‘)X). 1.cg.d iniplicntions of birth m k o s . j o i i m i l ~ j f ’ F i ~ i 7 7 r l ~ h l d c ~ !46. . 2.5 1-2.56. Uwd with pcrniission.
N o f ~(:oinpilcJ : from (
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Nursing assessments (such as the status of the laboring woman and fetus) and the frequency of patient monitoring should be clearly recorded on the appropriate forms (e.g., intrapartum flow sheets or checklists, progress notes). National standards require that documentation for women receiving EFM include interpretation of baseline FHR, presence of accelerations, longterm variability, and periodic changes and the frequency and duration of uterine contractions and resting tone (NAACOG, 1980, 1990, 1991). The assessment of maternal and fetal status must be documented through the second stage of labor. If an internal fetal scalp electrode is applied, the nurse also must describe short-term FHR variability. During the hour of shift change, women should not be left unattended,. and documentation of monitoring must be continued. In the event that the EFM tracing suggests a compromised fetus, immediate nursing intervention is nec-
Volume 28, Number 3
essary, and the physician must be notified. A professional nurse who fails to recognize or ignores a progressively deteriorating or ominous tracing does not possess the required competencies required in the specialty field. In emergency situations in which time constraints prevent the nurse from maintaining a contemporaneous record of interventions and communications with the physician or patient, an entry should be made soon after the occurrence. The date and time are placed adjacent to the detailed note. This late entry is particularly important because in the event of a poor birth outcome, lack of documentation may be interpreted as a failure to meet the standard for nursing care in communication (such as reporting to a physician). When a specific technology is unavailable (such as EFM) and can not be used as ordered by the physician, the nurse is responsible for documenting this lack of equipment and exercising clinical judgment with regard to alternative treatment -strategies. The physician needs to be advised concerning the problem, with discussion focusing on what other actions may be taken to assess the patient (such as auscultation of fetal heart rate and palpation of uterine contractions) until the equipment becomes available. All procedures used in a vaginal delivery of singleton breech and shoulder dystocia should be carefully described in chronological order. Treatment often includes application of suprapubic pressure and use of the McRobert’s maneuver. The nurse should record the exact time the head and body were delivered and results of the newborn assessment (such as the condition of the involved arm or hand). When operative interventions are performed, recordings related to fetal status and station immediately before delivery may provide data to support the practitioner’s clinical decision. Another important area for documentation relates to oxytocin administration. The medication should be administered according to the hospital’s protocol for dosage and frequency of rate increases. The nurse must continuously observe for side effects of oxytocin administration and document these in the labor record. The drug is discontinued in the presence of abnormal uterine contraction patterns (such as tetanic contractions or coupling of contractions) or abnormal FHR patterns per hospital requirements. If a physician’s orders are contrary to hospital policy or national standards, the nurse should discuss the order with the physician and, if necessary, involve a supervisor. The chain of command may be invoked to protect the safety of the laboring woman and her unborn child if all other efforts fail. Analysis of medical malpractice claims demonstrates the importance of documenting communications related to informed consent and early discharge. Regardless of whether the nurse actually obtains the patient’s signature on an informed consent form, dis-
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cussions (e.g., risks, benefits, and alternatives considered) should be recorded in the medical record. If a patient refuses a treatment or procedure, the reasons for this decision should be described. Early discharge programs necessitate providing patients with time- and action-specific written instructions, which also are entered in the medical record (e.g., “If your newborn has a temperature above 101” F, call your pediatrician or the pediatric clinic immediately,’’ “Bring your infant to the pediatric clinic at [time] on [date]”). Before assuming patients can read written instructional materials, nurses should assess their level of literacy. Pictures should be used when possible for illustration purposes and to decrease the complexity of the information. Copies of checklists such as discharge instructions for the newborn that require a signature by the nurse and mother should be included in the chart.
When an Unfavorable Birth Outcome Occurs If an adverse maternal or fetal event occurs or if an infant is compromised at birth, the hospital quality assurance and risk management team should be notified immediately. Hospital protocols vary with regard to the requirements for completing incident reports. This document and other information collected as part of quality assurance review generally are not discoverable in malpractice cases. The risk manager or designated patient advocate should promptly advise the family that the entire incident is being reviewed and the results will be shared with them (Holder, 1997).The use of effective communication skills with families is essential; such skills include demonstration of empathy, honesty, and sincere concern. Families need to express their emotions, including anger and disappointment.
T h e use of effective communication skills with families is essential; such skills include demonstration of empathy, honesty, and sincere concern.
Delegation and Downsizing Cost containment strategies in hospitals may result in restructuring or downsizing of perinatal units. Employment of UAPs to replace nurses or to assist professional staff raises concerns about potential liability exposure. In these situations nurses remain personally liable for their own acts of negligence; however, the hospital is legally accountable to provide an adequate number of staff and to make certain that the staff (including
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UAPs) is qualified to assume the job (Fiesta, 1997). When concerns about patient safety and quality care in the perinatal setting arise because of downsizing or delegation, the professional nurse has the legal duty to communicate with administration about these concerns. Information about problems in the clinical area related to staffing must be continuously communicated with management. The administrator is responsible for solving problems within hidher level of control or to continue the line of communication up the chain of command until it reaches the highest levels of the organization (e.g., executive officers of the hospital, board of trustees) (Fiesta, 1997). Professional nurses responsible for supervising and determining the appropriate use of UAPs must possess a clear understanding of the legal and professional definitions of the concept of delegation. This knowledge will enable them to appropriately use UAPs for direct patient care in the perinatal setting. According to the American Nurses Association (1994, p. 10): Delegation is the transfer of responsibility for the performance of a task from one person to another. The delegation of an activity passes on the responsibility for task performance but not the accountability for the process or the outcome of the task.
Unlicensed assistive personnel assigned to a task assume legal responsibility for accepting the delegation and for their own actions in performing the task. In delegating tasks to UAPs, nurses must carefully differentiate between patient care activities that may be appropriately performed by an unlicensed staff member and those that require the specialized knowledge, clinical experience, and judgment of a professional nurse. For example, UAPs may assist in taking vital signs but should not perform an admission assessment, determine risk status, or interpret FHR patterns. To delegate comprehensive assessments and care planning would be inappropriate and a violation of the state nursing practice act and national practice standards (American Nurses Association, 1994). The nurse should determine what components of nursing care may be delegated based on several factors (see Table 3 ) . To decrease potential liability, hospitals should maintain personnel files that document the training or education of UAPs and their competencies in performing selected patient care activities. As with nurses, UAPs should be evaluated initially on employment and at periodic intervals for competencies. Hospital policies should clearly define which tasks may be performed by UAPs and which are limited to professional nurses, based on state laws and professional practice standards. Within specific clinical areas such as birthing centers, administrators and professional nurses may elect to establish additional guidelines for delegation of tasks and supervision of UAPs. 298 JOGNN
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TABLE 3
Factors to Consider in Delegating Tasks to Unlicensed Assistive Personnel 1. The capabilities, training, and clinical experiences
of the unlicensed assistive personnel 2 . The risk status of the childbearing woman 3. The phase and stage of labor of the childbearing woman 4. The complexity o f the task to he delegated 5. The amount of time available for nursing supervision of the unlicensed assistive pcrsonnel
Summary In this era of increasing malpractice claims, it is particularly important that perinatal nurses maintain the standard of care established by their employer, local community hospitals, professional organizations, state licensing boards, and their education. Hospitals must ensure that obstetric nurses possess and maintain competence in the clinical skills needed for delivering safe nursing care. Clearly defined hospital policies consistent with the standards of the profession are needed to guide nursing practice and to minimize nurses’ liability in claims of negligence. A variety of strategies have been described to promote quality assurance in perinatal settings and to decrease the potential threat of malpractice suits.
REFERENCES American Academy of Pediatrics and American College of Obstetricians and Gynecologists (ACOG). (1992). Guidelines for perinatal care (3rd ed.). Washington, DC: Author. American Nurses Association. (1994). Registered professional nurses and unlicensed assistive personnel. Washington, DC: American Nurses Publishing. Association of Women’s Health, Obstetric, and Neonatal Nurses (AWHONN). (1993). Didactic content and clinical skills verification for professional nurse providers of basic, high-risk and critical-care intraparturn nursing. Washington, DC: Author. Bentley-Lewis, R. (1996, August). Obstetrics-related claims. Forum [Online serial], 2 7 ( 3 ) , 1-4. Available: www.rmf.org/rmf/b4564.html. Campbell v. Centinela Hospital Medical Center. (1994, April 29). No: YC 0122-998. Jury Verdict Weekly, 38(17), 23-25. Campbell v. Pitt County Memorial Hospital, Inc., 352 S.E.2d 902 [N.C.App. 19871. Davis v. Hoffman, 972 F. Supp 308, 1997. Eitel, D. R., Yankowitz, J., & Ely, J. W. (1998). Legal implications of birth videos. The Journal of Family Practice, 46, 251-256. Fiesta, J. (1988). The law and liability: A guide for nurses (2nd ed.). New York: Wiley.
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Fiesta, J. (1997). Delegation, downsizing and liability. Nursing Management, 28, 14. Fraijo v. Harland Hospital, 160 Cal Rep 246 (1979). Freeman, R. (1990, Mar 1)Intrapartum fetal monitoring-a disappointing story [editorial; comment]. New England Journal of Medicine, 322, 624-626. Gardner, S. L., & Hagedorn, M. I. E. (1997). Legal aspects of maternal-child nursing practice. Menlo Park, CA: Addison-Wesley, 95-1 42. Griffin, L. P., Heland, K. V., Esser, L., & Jones, S. (1998, March/April). Overview of the 1996 professional liability survey. ACOG Clinical Review [Online serial], 3(2), 1-2, 13. Hickson, G. B., Clayton, E. W., Entman, S. S., Miller, C. S., Githens, P. B., Whetten-Goldstein, K., & Sloan, F. A. (1994). Obstetricians’ prior malpractice experience and patients’ satisfaction with care. Journal of the American Medical Association, 272, 1583-1587. Holder, W. L. (1997, October). Shark-proof your practice. How the law is every nurse’s best ally. Lifelines, 1(5), 53-57. Joint Commission on Accreditation of Healthcare Organizations. (1997).Accreditation manual for hospitals, Vol1. Standards. Oak Brook Terrace, IL: Author. Levinson, W., Roter, D. L., Mullooly, J. P., Dull, V. T., & Frankel, R. M. (1997). Physician-patient communication. Journal of the American Medical Association, 177, 553-559. McMullen, P. (1990).Liability in obstetrical nursing. Nursing Connections, 3, 61-64. McRae, M. J. (1993). Litigation, electronic fetal monitoring, and the obstetric nurse. JOGNN, 22, 410-418. National Practitioner Data Bank. (1998, April). 2997 annual report. Chantilly, VA: Author. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1981). The nurse’s role in electronic fetal monitoring. NAACOG Technical Bulletin, 7, 1-5. Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1990). Fetal heart rate auscultation. Washington, DC: Author.
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Nurses Association of the American College of Obstetricians and Gynecologists (NAACOG). (1991). Nursing practice competencies and educational guidelines, antepartum surveillance and intrapartum fetal heart monitoring (2nd ed.). Washington, DC: Author. Phillips, J. (1995). Homeless nurses and feeling homeless in nursing. Nursing Science Quarterly, 8, 55-56. Schifrin, B. S. (1995). Medicolegal ramifications of electronic fetal monitoring during labor. Clinics in Perinatology, 22, 837-854. Stolte, K., Myers, S. T., & Owen, W. L. (1994). Changes in maternity care and the impact on nurses and nursing practice. ]ournal of Obstetric, Gynecologic, & Neonatal Nursing, 23, 603-608. Schutte, J. E. (1995). Preventing medical malpractice suits. Seattle: Hogrefe & Huber. Tammelleo, A. D. (1997). PA: No liability for informed consent: ‘Prudent nurse’ explanation standard applies. Regan Report on Nursing Law, 38, 3. Trombly, S. T. (April 1990). Legal forum: The duty to establish communication channels. Forum. [Online] Available: http:/www.rmf.org/www/rmf/b3664.htm. Volk, L. A. (October 1995). Overview of CRICO claims data. Forum, [Online] Available: http:/www. rmf.org/rmf/ b3430.html Weekly, S. J., & Neumann, M. L. (1997). Speaking up for baby: The case for individualized neonatal discharge plans. Lifelines, 1(l),24-29. Weiler, P. C., Hiatt, H. H., Newhouse, J. l?, Johnson, W. G., Brennan, T. A., & Leape, L. L. (1993).A measure of malpractice. Cambridge, MA: Harvard University Press.
Deborah Koniak-Griffin is a Professor in the UCLA School of Nursing in Los Angeles, CA.
Address for correspondence: Deborah Koniak-Griffin, EdD, RNC, FAAN, PO Box 956929, Factor Building, 5-232, Los Angeles, C A 90095-6919.
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