Tell your friends about this page!   On-Site Training Seminars Challenging Patient Situations Book Video Training Programs Healthcare Workplace Issues Ask Mary Rau-Foster's Advice Events Calendar Our Services Articles and White Papers Avoiding the Malpractice Blues About Us Contact Us Home     Want help on general workplace issues like conflict resolution, employee motivation and communication? Visit our sister site workplaceissues.com	Articles and White Papers Concerning Healthcare Workplace Issues   Avoiding the Malpractice Blues by Mary Rau-Foster, RN BS ARM JD   "Contemporary Dialysis & Nephrology" magazine, October 1999   The possibility of being sued for medical malpractice or negligence is a constant reality for all healthcare providers. Certainly, dialysis facilities and its staff, are not exempt from this prospect. Litigation has become a way of life in our current sue-conscious culture. Therefore, the more healthcare providers are armed with the knowledge of how to avoid such actions, the better.   When pressed, healthcare providers have a list of endless questions, like, for "what reasons can we be sued?" Another is, "can I be personally named in a lawsuit?" Another, easily the most commonly asked question, is "how such lawsuits can be avoided?" This is not the question we should be focusing on. The real concern is how we can consistently deliver safe, efficient and appropriate dialysis treatments. When this issues is sufficiently addressed - and resolved - litigation targeted at the dialysis medical community just may become a distant memory.   Errors in Judgement Dialysis has been described by dialysis staff as being 90 percent boredom (due to the routine and chronic nature of the treatment process) and 10 percent sheer terror (when something goes wrong). There are pitfalls for health providers in becoming complacent when rendering treatments, and having a "get them on so we can get them off" mentality, so we can get the next group "on.". When this is the case, there's no mistaking the fact that there is danger in making mistakes or serious errors in judgment.   Legal Terminology To fully comprehend the issues, it's important to understand the exact meaning behind the "legalese," as it pertains to the medical community.      Negligence: The failure to perform an act or treatment that a reasonable person ­ guided by those considerations which ordinarily regulate human affairs ­ would do. Alternatively, implementing a treatment that a prudent and reasonable person would not do.    Non-dialysis example: An individual driving while intoxicated.      Standard of Care: What qualities do all healthcare professionals owe to patients? A duty to possess a high degree of learning and skill ordinarily possessed by healthcare professionals in good standing. This accepted standard of care is used to measure both the health care professional's competence and conduct.    Example: Performing a pre-dialysis assessment of the patient (including pre-dialysis vital signs) to ensure that the patient's condition is stable enough to initiate dialysis      Malpractice: The failure of one not rendering what is commonly accepted as professional healthcare services, and the failure to exercise a degree of skill and learning by an average, prudent and reputable member of the profession. When such act(s) result in injury, loss or damage to the recipient of those services or to those entitled to rely upon them, it is considered to be acts of malpractice.    Example: Failure to monitor the patient's vital signs during the dialysis treatment, which can result in failure to recognize and treat severe hypotension.      Intentional Acts: Intentional acts require a specific state of mind and are carried out with an intention to commit a wrongful act. Intentional acts include assault, battery, slander, false imprisonment, defamation and invasion of privacy. An intentional act can expose the healthcare professional to criminal or civil liability and loss of license.    Example: An adult patient, who is competent and understands the consequences of his decision, insists upon having his dialysis discontinued after only one hour of treatment. The staff refuses to do so because they know that he needs to finish his treatment, and they are going to make sure that he stays in that chair until that is accomplished. The patient again insists that he be "taken off the machine right now." Again, the staff refuses to do so. The patient now claims that because he had withdrawn consent for treatment, the staff had committed battery (the touching of one person by another without his or her consent). The patient additionally claims that he was held against his will, and therefore he was subjected to "false imprisonment" by the staff, because he was not allowed to leave.   More details concerning these and other issues can be found in the chart, "Professional Negligence is Malpractice." This chart fully describes what a plaintiff must prove in a medical malpractice and/or negligence lawsuit. The burden of proof is on the patient or the person bringing the lawsuit (as the plaintiff) to demonstrate each of these elements. This chart also effectively demonstrates that certain omissions in the rendering of care can be considered malpractice or negligence.   Knowing the Issues Other examples of negligence and/or malpractice in the dialysis setting include, but are not limited to the following issues.    1. Failure to monitor and assist an unstable patient, which results in a fall.    2. Medication errors, i.e., omission, wrong dose, wrong route, not ordered, wrong patient.    3. Failure to follow a physician's orders, or following orders which the healthcare professional knew or should have known were wrong.    4. Failures to properly inspect, maintain, repair or use equipment.    5. Failure to check the settings, alarms and functioning of a dialysis machine prior to the initiation of a dialysis treatment.    6. Failure to monitor a patient's condition and to respond in an appropriate and timely manner.   The Malpractice Blues How can dialysis healthcare professionals and facilities avoid singing the malpractice blues? By using common sense and judgment, and acting in accordance with standards of care and the (appropriate) training which he or she has received. Following are some guidelines.   • Use common sense to prevent injury to patients.   • If you don't know how to perform a given task, ask someone who does.   • Short cuts can lead to a "short circuiting" your career. Don't take them unless they are approved and in compliance with the standard of care.   • Treat the patient with care, concern, respect and dignity. The absence of these courtesies will make a patient less forgiving when you do make a mistake.   • Act in a reasonable manner at all times. Ask yourself: "Is this the reasonable thing to do under the circumstance?" This is the most frequently asked question in every malpractice and negligence case.   • Understand that you will make mistakes. Determine why you made the mistake and what you can do to prevent it from occurring again.   Always remember that dialysis carries with it the inherent possibility of being dangerous to a patient, and should be regarded as both a life-saving and a life-threatening procedure. Respect the process for what it is and be aware at all time of the possibilities for crisis.   Mary Rau-Foster, RN BS ARM JD     "If your actions are questioned, lawyers, judges and juries will review all written evidence. If you are sued, written evidence is you “defense camp,” and can be your best friend or your worst enemy."    In conclusion, document, document, document - your daily responsibilities connected with dialysis treatment and exchanges with patients. If your actions are questioned, lawyers, judges, and juries will review all written evidence. If you are sued, written evidence (your documentation) is your "defense camp," and can be your best friend or your worst enemy. Remember the old adage, "If it is not written, it was not done." Professional Negligence is Malpractice Elements of Liability Explanation Example 1. Duty to use due care (defined by the standard of care). The care which should be given under the circumstances (what the reasonable, prudent health care professional would have done). A dialysis professional should check the dialysis machine, settings and alarms before initiating a patient treatment. 2. Failure to meet the standard of care (breach of duty/negligence). Not giving the care that should be given under the circumstances. A dialysis professional fails to check the machine, settings and alarms. 3. Foreseeability of harm. Knowledge that not meeting the standard of care will cause harm to the patient. Failure to ensure that machine, settings and alarms are properly functioning may fail to alert the staff to the patient's changing condition or machine malfunction. 4. Failure to meet standard of care causes injury (proximate cause). Patient is harmed because proper care is not given. Failure to recognize and respond in a timely manner to patient or machine problems results in patient injury or death. 5. Injury (damage). Actual harm results to patient. The patient is injured or dies as a result of inadequate and timely response to the emergency situation. Mary Rau-Foster is president and founder of Foster Seminars and Communications LLC in Brentwood, TN. Rau-Foster, a former nephrology nurse, attorney, author, and a nationally known speaker, has an extensive background in medical malpractice. Mary has written and produced a video based training program on documentation in the dialysis setting. For information on this topic contact Mary.   © 1999, 2000 Mary Rau-Foster. Reprinted by permission of "Contemporary Dialysis & Nephrology" magazine.     More Articles and White Papers
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