Professional Malpractice Nursing Negligence Primer Mary Jo Newhouse Schwabe, Williamson & Wyatt

1. Professional MalpracticeNursing Negligence PrimerMary Jo NewhouseSchwabe, Williamson & Wyatt

2. Outline • Background • Standards of Practice • Statutory Definitions • Elements of a malpractice action • Roadmap of lawsuit • Practical Comments

3. Background • Graduated BSN Wayne State University 1980 • PICU CHMC 1980 – 1983 • JD 1986 UPS Law School (Seattle University) • Medical Malpractice Defense/Health Care • Partner Schwabe, Williamson & Wyatt

4. Standards of Practice • RCW 18.79.260 – Registered Nurses • Perform for compensation nursing care, as the term is usually understood, to individuals with illnesses, injuries or disabilities • Under direction of other providers, within their scope of practice, administer medications, treatments, tests, inoculations • May delegate tasks of nursing care

5. Delegation RCW 18.79.260 • Determine competency of individual to perform the tasks • Evaluate appropriateness of delegation • Supervise • Delegate only those tasks within the registered nurses scope of practice

6. Standards of Practice 246-840-700 • Violations of standards of nursing conduct or practice WAC 246-840-710 • Mandatory Reporting WAC 246-840-730 • Purpose protect the public health and safety through discovery of unsafe or substandard nursing practice or conduct • List

7. Nursing Negligence • No award shall be made in any action or arbitration for damages for injury occurring as the result of health care which is provided after June 25, 1976, unless the plaintiff establishes one or more of the following propositions:     (1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;     (2) That a health care provider promised the patient or his representative that the injury suffered would not occur;     (3) That injury resulted from health care to which the patient or his representative did not consent.     Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by a preponderance of the evidence. • RCW 7.70.030 • RCW 7.70.020 Defines nurse as a health care provder

8. Tort - personal injury • Breach of a Civil Duty, other than contract • Failing to meet the duty of a health care provider is referred to as negligence or malpractice, e.g. medical, nursing, etc. • Negligence as opposed to an intentional act

9. Elements of Proof • The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:     (1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;     (2) Such failure was a proximate cause of the injury complained of. • RCW 7.70.040

10. Elements • Duty • Breach • Causation • Damages

11. Reasonably prudent health care provider • Standard of Care • Did the health care provider meet the standard of care • Define the standard of care • Requires expert testimony • Except if ordinary negligence that does not require expert testimony

12. Define the Standard of Care • Determine whether the HCP met the standard of care • Usually experts on both sides • Who can be an expert • Jury (or fact finder) decides

13. Damages • Must exist or there is no claim

14. Causation • Proximate Cause • Requires expert testimony • Usually medical

15. A bad outcome does not mean the standard of care was breached

16. Something Happens • Mistake or Injury • Incident Report (records) • Investigation – quality assurance/peer review • Contacted by Risk Management • Facility/Organization – attorneys represent employees

17. Fact Witness • Usually (not always) nurses not listed as defendants • Typically the employer or institution is the defendant • Deep Pockets • Insurance

18. Road map of Case • Request records • File lawsuit • Written Discovery • Depositions • Trial

19. Attorney Contact • If an attorney or someone from make sure they clearly identify who they are working with • You do not have to speak to the attorney • You should contact your facility or employer if you are contacted by someone who is not working on behalf of your employer • Confirm someone has authority to contact you

20. Deposition • Expect an interview by defense counsel • Preparation for deposition by defense counsel • Subpoena • What to expect at a deposition

21. Resolution • Arbitration • Mediation • Trial

22. Best Support • Charting • Do not chart in anticipation • It can undermine all your testimony and entries • Be accurate • Corrections and late entries • The purpose of charting is communication

23. Delegation • Supervise • Case – DOH investigate

24. Policies and Procedure • Know them • Read them • Take them seriously • Case study – wheel chair • Case study – discharge after procedure

25. Other Statutes • Mandatory Reporting of Suspected Child Abuse - RCW 26.44 • Abuse of the Vulnerable Adult - RCW 74.34 • Good Samaritan