LOS ANGELES COUNTY DEPARTMENT OF HEALTH SERVICESLOS ANGELES COUNTY DEPARTMENT OF HEALTH SERVICES

NURSE RECONGITION 2010NURSE RECONGITION 2010

LEGAL ASPECTS OF NURSING PRACTICELEGAL ASPECTS OF NURSING PRACTICE

May 5, 2010May 5, 2010Bonnie Bilitch, RN, MSNBonnie Bilitch, RN, MSNDirector, Risk ManagementDirector, Risk Management

LAC+USC Healthcare NetworkLAC+USC Healthcare NetworkFor use by LA County Departments Use OnlyFor use by LA County Departments Use Only

OBJECTIVES:1. Describe how a nurse can incorporate risk

management principles into practice2. State the four steps to be taken after an

adverse event3. List three reasons for disclosing adverse

events to patients/surrogates4. Identify members of the legal team5. List three basic elements of professional

negligence6. Define key legal concepts involved with

patient/visitor falls7. Identify a nurse’s legal exposure in the

development of pressure ulcers8. List three aspects of the California privacy

regulations that affect nursing practice

RISK MANAGEMENT

• PURPOSE OF RISK MANAGEMENT• To identify risk factors to decrease potential risk

exposures related to the delivery of healthcare and to improve the quality of care provide by the organization.

• HOW RISKS ARE IDENTIFIED• An effective risk management program is based on

the ability of all staff to identify and report events.

YOU ARE A RISK MANAGER!

Interpersonal Skills

Interpersonal Skills

First impression is crucialFirst impression is crucialEstablish rapportEstablish rapportCommunicate effectivelyCommunicate effectivelyListenListenFollow through to fulfill Follow through to fulfill

expectationsexpectations

Documentation

Documentation

Date/Time/Signature/TitleDate/Time/Signature/TitleIdentification of Late EntriesIdentification of Late EntriesCorrections to entries and Corrections to entries and

audit trailsaudit trailsAvoiding CYA/Blame GameAvoiding CYA/Blame GameConfidential reporting Confidential reporting

systemssystems

Adverse Outcomes

"For a list of the State mandated reportable adverse events, "Never 28's",

Please contact your hospital's risk management department.

Adverse Events

Reportable Adverse Events – State Law• “Never 28”• Effective July 1, 2007• Hospital must report “adverse events”• State DHS will investigate• Information becomes public• Penalties for failing to report• Potential fines related to event

What do I do?

1. Take care of patient

2. Report to Risk Management

3. Assure there is disclosure with

patient/family and documentation

4. Enter event into Patient Safety Net

Why disclose?

“The hospital informs the patient or surrogate decision-maker about unanticipated outcomes of care, treatment, and services that relates to sentinel events considered reviewable by The Joint Commission.”

TJC – Rights and Responsibilities of the Individual

“The facility shall inform the patient or the party responsible for the patient of the adverse event by the time the report [adverse event report to State] is made.”

California Health and Safety Code - Section 1279

Why disclose?

Why disclose?

Benefits to Patient and Caregivers:

Trust/Forgiveness and timely, appropriate follow up and treatment

Do’s and Don’ts

• Don’t promise anything you can’t deliver• Do offer a sincere expression of

sorrow/regret for the harm experienced.• Don’t word the apology as an attribution or

acceptance of blame, nor as admission of liability.

• Do tell the truth.• Don’t blame others, especially if they are

not present in the discussion.

LITIGATION

Plaintiff Patient Family members

The patient’s survivors Witnesses to the patient’s injuries Loss of consortium

Defendant Provider Employer or principal

Basic Elements:1. Violation of Standard of

Care2. Causation3. Damages

Professional Negligence

* Medical service providers must exercise1. reasonable degree of skill2. reasonable degree of knowledge3. reasonable degree of care

* ordinarily possessed and exercised by members of their profession

* under similar circumstances

Standard of Care

To recover against a health care provider based on malpractice it is necessary to prove that an alleged failure to exercise the care and skill required under the circumstances was a proximate cause of the condition about which complaint is made.

In medical malpractice action, evidence must establish that in absence of defendant's negligence, there was reasonable medical probability that plaintiff would have obtained a better result.

Causation

-Must be actual & cannot be nominal-Special or Economic

Past Medical ExpensesFuture Medical ExpensesLoss of EarningsLoss of Earning Capacity

- General or Non-Economic (M.I.C.R.A.)Pain and Suffering

- Punitive

Damages

County Counsel

Sedgwick CMS(Third Party Administrator)

Defense Attorney

Risk Management

Legal Team

-Incident/PSN report-Claim against the County-Lawsuit is Filed with the Court-Assignment of Case to Defense Counsel-Discovery and Investigation by Counsel-Round Table and Facility Litigation

Review

Procedural steps

Defend the case and proceed with trial

File motions in the Court to terminate the case

Settle the case

Round Table/Facility Litigation Reviews

FALL

Case Study:

82 y.o. female speaks no English to hospital for chest pain, vomiting, HTN. Pt admitted to hospital. Assessed at 0620 by RN. Resting comfortably. RN warned pt not to get out of bed without assistance and to use call light for assistance. At approximately 0630, pt fell and injured hip.

FALL

Key concepts relating to falls:

1. Dangerous condition

2. Negligence

FALL

Issues identified upon expert review

Failure to respond to patient’s call for assistance

Failure to ensure patient’s comprehension of instructions for using call light.

Failure to check patient according to falls protocol

FALL

SKIN

Reportable event to StateA Stage 3 or 4 ulcer, acquired after admission, excluding

progression from Stage 2 to Stage 3, if Stage 2 was recognized upon admission.

An unstageable ulcer is a full thickness tissue loss in which the base of the ulcer is covered by slough (yellow, tan, gray, green or brown) and/or eschar (tan, brown or black) in the wound bed. Until enough slough and/or eschar is removed to expose the base of the wound, the true depth, and therefore, stage cannot be determined.

Litigation on the increase Elderly/Dependent Adult Abuse claims

SKIN

Initial Assessment Upon Admission

Identification of High Risk Patients

Implementation of Nursing Protocols

Documentation, Documentation, Documentation

SKIN

PATIENT PRIVACY

Privacy of Health Information Laws

Existing laws: Federal Health Insurance Portability and Accountability

Act (HIPAA) California Confidentiality of Medical Information Act

(CMIA)

CMIA: Providers of healthcare may not disclose patient medical information without the patient’s written authorization, unless the disclosure is permitted or required, through exceptions specified by CMIA.

New Privacy of Health Information Laws

SB 541 and AB 211

Intent: To hold providers accountable for maintaining the confidentiality of patient medical information

Effective January 1, 2009 Facilities must self-report Creates Office of Health Information Integrity Establishes new fines – facility and individuals

New Privacy of Health Information Laws

Reporting Requirements (SB 541)

Any unlawful or unauthorized access/use/disclosure of patient medical information to CDPH and the patient within 5 days of detection

Obligation applies to acute/psychiatric hospitals, SNF’s, licensed clinics, home health, hospice

New Privacy of Health Information Laws

Penalties (SB 541)

$100 per day for failure to report Up to $25,000 per patient Up to $17,500 per subsequent violation of that

patient’s medical information Maximum total of $250,000 per reported event

New Privacy of Health Information Laws

New State Agency (AB 211)

Office of Health Information Integrity to enforce CMIA

OHII will levy penalties for unauthorized access/use/disclosure of patient medical information by individuals (not facilities covered by SB 541)

New Privacy of Health Information Laws

Individual Penalties (AB 211)

Up to $2,500 for negligent disclosure Up to $25,000 for knowing and willful access, disclosure or

use Up to $250,000 for knowing and willful access, or use for

financial gain. Up to $250,000 anyone not permitted to receive medical

info under CMIA who knowingly and willfully obtains, discloses or uses such info without patient’s authorization

Questions?Questions?