About Legal Issues and Terms for Nurse Practitioners

Carolyn Buppert, CRNP, JD is a health care attorney and very knowledgeable about NPs and legal issues. She is the author of nine books and has a great YouTube channel so she’s referenced a lot but adds so much value to becoming a better NP. According to Buppert, malpractice lawsuits against NPS are rare, and difficult to assess “incidents” due to a few reasons:

• A filed lawsuit means the patient believes he/she was harmed but it can be unfounded, placed on the wrong person, or even the definition of malpractice.
• Some suits are filed, not because the NP caused harm, but was a part of a team or the system of care providers involved with the patient care.
• Unless the insurance companies report the damage reward to the National Practitioner Data Bank, the information of the lawsuit may come to light or not at all if the case is unsuccessful.

Nevertheless, harm can occur but NP malpractice cases still remain extremely low at 2% of NPS being the primary defendant in the overall cases.

A Few Cases about Mishandling Medications

Becker’s Hospital Review is my number one place to go about the legal aspect of healthcare. Surprisingly, I was shocked at the massive amount of cases of insurance fraud! I simply just wasn’t aware of how much of a problem it is, but healthcare and money is a huge businesses…However, to keep this page focused, here are a few medical/legal cases that Buppert discussed in her textbook:

Example 1: A schizophrenic patient was becoming more paranoid and psychotic but had her antipsychotic dose decreased because she told the NP from community mental health how she didn’t like taking the medication. The NP did not review the patient’s history of violent behavior and the patient went to a clinic and brutally attacked the staff. The injured worker sued the community clinic and won a settlement.

• Lesson: If a patient is psychotic and refusing medications, their wishes should be respected but treatment is justification and most of the time necessary for the safety of the patient and others. A breach of the standard of care occurred when the NP decreased the dose without considering: the chances of psychotic relapse, particular discontinuation, withdrawal syndromes, and adverse events. Another lesson is to consider prior records before changing a regimen or at least wait till a rapport is more developed before changing medications.
• Personal Notes: This example did not specify if the NP specialized in psych or worked at a community mental health clinic as a different NP specialty. Some NPs are not trained in certain areas and just work there due to the demand and it reinforces the importance of an NP’s scope of practice. I wouldn’t work in OB or with kids if that wasn’t my experience but many care providers don’t understand the liabilities or try to get on-the-job training.

Example 2: A psych NP started a patient on lamotrigine and developed a rash after two weeks of treatment. The family NP, at the same clinic, prescribed antibiotics for the rash, and when it got worse, eventually referred them to the dermatologist that diagnosed her with Steven Johnson-Syndrome(SJS) and she was hospitalized for 3 weeks. The family NP was held liable for not recognizing SJS and stated how she didn’t think she was responsible for managing the side effects of meds prescribed by others, which was considered a damning testimony. The psych NP was not held liable or faulted due to not being notified of the complaint, though it was mentioned how the psych NP should’ve advised the patient about that risk and what to do if a rash develops.

• Lesson: Know about the risks and complications of treatment even if it’s rare.
• Personal Notes: I also believe, that if a patient is not getting better or the symptoms are getting worse, first assess as much as you can i.e. medication history, labs, vitals, get a second opinion…etc. Buppert did mention how severe SJS has distinct signs plus early-onset symptoms look benign and indistinguishable. Therefore, you can’t just look at one complaint (a rash) without seeing the bigger picture and finding out more information. Provide information on all the medications via a pharmacy or the clinic and DOCUMENT that risks/benefits were discussed.

Buppert included more examples but I just limited them to those pertaining to mental health. However, in the other cases, she discussed how the NP can be liable for a missed diagnosis, failure to refer (especially if the patient’s injury is severe), failure to provide preventive care, failure to perform routine screening, and the risks of telephone triage.

Preventing Lawsuits

• Practice under guidelines that are written for the job.
• Know the national and evidence-based guidelines.
• Document when need to deviate from the guideline.
• Be careful about patient-provider relationships. Once you give advice, you have established a relationship.
• Know the standard of care and practice within it.
• If practice guidelines or protocols have been adopted by the office or agency, follow them!
• When in doubt, take a conservative approach.
• Rule out the worst diagnoses early on and follow up.
• Know the limits of training and expertise.

What to do if Sued

• Call your malpractice insurance company to report the lawsuit.
• DO NOT TALK about the suit with anyone but the NP’s attorney. DO NOT talk to the plaintiff/patient or the plaintiff’s attorney
• Consider retaining your own lawyer if a group lawsuit.
• DO NOT CHANGE documentation after learning of the lawsuit.
• A disposition-a pretrial information-gathering session-is just as important as testifying in court. Think carefully before agreeing to settle. Settlement awards will appear on the NPDB record.

Quick Review of Legal Terms

Assault: an attempt or intentional act that produces an effect that the person believes they’re in imminent harm. If the victim is touched, the act is battery, not assault.

Battery: unlawful act of contact that results in bodily harm or injury. One can commit battery on an unconscious person, but not assault.

Causation of Injury: for malpractice to have occurred, a breach of the standard of care must have caused damage to the plaintiff.

Duty: a duty is established when a NP-patient relationship is established. NP giving professional advice or treatment in any setting can and constitute a “duty” if an individual is injured, the NP can be held liable if the person believed a duty was established whether the provider didn’t recognize it or not.

Liability: the legal responsibility an NP has for actions that fail to meet the standard of care.

Libel: a published false statement that is damaging to a person’s reputation; written defamation.

Malpractice: Failure to exercise that degree of skill and learning commonly applied by the average prudent, reputable member of the profession. 4 elements:

1. The NP owed the plaintiff a “duty of care”
2. The NP’s conduct fell below the standard of care
3. The NP’s conduct caused the plaintiff’s injury
4. The plaintiff was injured

Negligence: Predominant legal theory of malpractice liability. Failure to follow up, failure to refer when necessary, failure to disclose necessary information to a patient, and failure to give necessary care.

Slander: the action or crime of making a false spoken statement damaging to a person’s reputation.

References

• Buppert, C. (2018). Nurse Practitioner’s Business Practice and Legal Guide (6th Ed.). Boston, MA: Jones and Bartlett. ISBN 9781284117165
• Check out her website!