Chapter 5 PATIENT CARE CONCERNS

Chapter 5 PATIENT CARE CONCERNS

INTRODUCTION 5:1

REFUSAL OF CARE BY A PATIENT AND OTHER CONSENT ISSUES 5:2

Informed Consent 5:3

Implied Consent 5:5

Minors and Consent 5:5

The Nurses’ Role 5:6

PHYSICAL RESTRAINTS 5:8

LANGUAGE DIFFERENCES 5:11

MEDICATION ERRORS 5:13

“Five Rights” and “Three Checks” Safeguards 5:15

Dosage Errors 5:15

Wrong Medication 5:18

Wrong Route 5:19

CONCLUSION 5:20

Statutes and Regulations

INTRODUCTION

In general, nurses are required to perform their duties to the best of their abilities and in a manner consistent with the prevailing level of skill and good judgment under the circumstances. The health care field has become more complex and along with these many developments, the nurse’s job has also grown tremendously in its scope of duties and specialties and the need for diverse professional skills. In Nevada, nursing is regulated by the State Board of Nursing which oversees licensing and discipline of practitioners within the state. In 1995, the state legislature declared that “the practice of nursing is a learned profession affecting the safety, health, and welfare of the public and is subject to regulation to protect the public from the practice of nursing by unqualified and unlicenced persons and from unprofessional conduct by persons licensed to practice nursing.” NRS 632.005. As a learned profession, nurses should also self-regulate, and can safeguard themselves and diminish their exposure to professional liability by becoming informed of relevant law. This chapter will explore current legal issues in patient care concerns in light of the expansive demands placed on today’s nurse.

REFUSAL OF CARE BY A PATIENT AND OTHER CONSENT ISSUES

It would seem intuitively reasonable to expect that patients who seek medical care and assistance will accept and comply with the recommendations of their physician and the interdisciplinary health care team. But, for a variety of reasons many patients do indeed refuse care and often make their objections known through protestations and even violent confrontation. Of course, the principle of patient autonomy holds that patients may refuse treatment at any time and walk out of a care facility if they so wish.

Under Nevada law, the general standards for the practice of nursing include certain duties that could conflict with the principle of patient autonomy under certain circumstances. The registered nurse is required by law to identify the immediate and long-term health care goals for the care of patients, and to provide and encourage an environment conducive to the safety and health of patients. NAC 632.218. Moreover, Nevada law delegates tremendous independent care discretion and judgment to the registered nurse and therewith grave responsibilities: the RN must make judgments and decisions regarding the status of a patient and the modification of the patient’s care as needed, and in situations which threaten the life of a patient, the RN must undertake action necessary to stabilize the patient’s condition and prevent more serious complications. NAC 632.216. But, what if the patient refusing care is delusional, intoxicated, suicidal, or incapable of understanding or knowing the consequences of his actions? Must the nurse follow his or her own care determinations and judgment as mandated by law, if the nurse feels it is in the patient’s best interests?

The Nevada legislature has embraced a Patient’s Bill of Rights that empowers patients and codifies in the statutes various obligations of a health care delivery system. NRS 449.700 - NRS 449.760. This Bill of Rights provides that the patient has the right to refuse treatment and be informed of the consequences of that refusal. NRS 449.720(2). Additionally, the patient has the right to receive all information necessary in order to give informed consent to any proposed treatment or procedure, including a description of the significant medical risks involved, any information on alternatives to the treatment or procedure, and the costs of the proposed and alternative treatments. NRS 449.710.

Informed Consent

The law recognizes the prevailing public policy preference for obtaining the patient’s informed consent in writing before rendering any care, and absolutely requires it in most cases; but the law also makes accommodations for certain exigent situations where consent is not necessary or feasible. But what exactly is “informed consent” and how does the practitioner know when it has been freely and affirmatively given.

Nevada law defines informed consent slightly differently depending on the context. The Patients Bill of Rights requires that the patient receive from his physician the information necessary to give informed consent, including a description of significant medical risks and other alternative procedures. But the Bill of Rights does not require that a physician obtain informed consent in writing before performing a procedure.

However, some procedures are considered so significant, irreversible, or risky that the law does require prior consent from the patient in writing. For example, a physician is absolutely required to document a patient’s informed consent before inserting a breast implant. NRS 449.740. This statute states that informed consent is obtained when the patient acknowledges in writing her consent to the procedure. The patient must also acknowledge in writing the receipt of the current explanation form regarding the procedure, prepared and published by the Nevada Health Department, or alternatively, the patient must acknowledge in writing her consent to the procedure and that the physician has adequately discussed the nature and consequences of the procedure, the reasonable risks, possible side effects, benefits, and purposes of the procedure, and any alternative procedures available.

A physician must obtain the informed consent and also the marital status and age of a woman before performing an abortion, and must certify this information. NRS 442.252. The law does not specify whether the physician must then obtain the husband’s informed consent if the inquiry determines that the woman is married. Although the basic notice elements discussed above are sufficient to constitute informed consent for an abortion, the physician must also be certain that the patient understands the emotional as well as the physical implications of having an abortion. Nonetheless, Nevada law requires only that the physician explain the emotional and physical ramifications to the patient; whether the patient fully understands the implications may be determined according to whether a similarly situated individual under the same circumstances would comprehend the physician’s explanation and, based on that information, come to an informed understanding.

By comparison, for purposes of adjudicating medical malpractice claims under Nevada law, informed consent is considered conclusively obtained if the physician has:

(1) explained to the patient in general terms without specific details, the procedure to be undertaken;

(2) explained to the patient alternative methods of treatment, if any, and their general nature;

(3) explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks; and

(4) obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment and risks involved, as provided in this section.

The concept of informed consent in the preceding examples illustrates a subtle phenomenon common in many questions of law. The first three examples set forth standards for informed consent in the Patient’s Bill of Rights, and breast implant and abortion procedures, and these standards are normative and aspirational. The standards set out what is supposed to occur in ideal circumstances. The statute provision related to medical malpractice actions examines the elements of informed consent in hindsight: if the physician substantially complied with all the elements, then informed consent was obtained.

Nevada courts have held that informed consent, when required, is established when the essential elements discussed above are substantially fulfilled and when the physician has disclosed information that a reasonable practitioner in the same field of practice would disclose. This is known as the “professional standard.” By comparison, when a physician uses a “boilerplate” form to comply with the statutory requirements, and the form requires that the patient indicate their consent by signature, courts have found that the form failed to satisfy all the statutory requirements because it did not contain an adequate explanation of the procedure and alternative methods of treatment. Allen v. Levy, 109 Nev. 46 (1993).

In each of the Nevada statutes discussed previously, informed consent from the patient is explicitly held to be the physician’s responsibility. Still, Nevada law requires that the registered nurse initiate acts which are necessary to provide adequate care to a patient. This directive implicitly mandates some responsibility to ensure that prior informed consent had been obtained. Also, nurses are invariably involved at least collaterally in the process through offering further explanation, having the patient sign forms, and administering medications and other care. Nurses are obligated to inform the physician, and even advocate on the patient’s behalf, if the patient refuses care or if the nurse believes the patient does not fully understand the care decision.

Implied Consent

The doctrine of “implied consent” recognizes that there are certain circumstances where obtaining written informed consent is too laborious and costly compared to other factors and, in the interest of expediency, the patient is deemed to have given implied consent to a procedure or treatment. Consent is commonly implied where the procedure or treatment carries only marginal risks, or consent is considered obvious and implicit when the patient presents for treatment, or if in an emergency obtaining prior consent would jeopardize the patient’s welfare. Nevada has codified the implied consent doctrine as law in respect to legal actions for medical malpractice. NRS 41A.120. Under circumstances where a patient is not able to give informed consent and there is no other person authorized to give consent for the patient, consent is implied for any medical, surgical, or dental procedure that is reasonably necessary, and where any delay in performing such a procedure could reasonably be expected to result in death, disfigurement, impairment of faculties, or serious bodily harm. Otherwise, if a patient voluntarily presents for basic routine care or simple common procedures such as x-rays or vital signs, consent is implied from the patient’s own actions unless there is some reason to believe the particular patient would refuse the treatment.

Minors and Consent

A minor - generally anyone under 18 years of age - may not independently consent to medical treatment or procedures in most cases. NRS 129.010. Instead, their parent(s) or legal guardian(s) must give consent conforming to the requirements for informed consent discussed earlier in this chapter. For public policy reasons, Nevada law includes some exceptions that allow a minor to consent to certain treatments or procedures without consent from, or notice to, parent(s) or guardian(s).

First, a minor is considered emancipated, and therefore free to consent to treatment, if he is living apart from his parents or legal guardian and has done so for a period of at least four months. A minor is also considered emancipated if married or previously married, a mother, or in a physician’s judgment is in danger of suffering a serious health hazard if health care services are not provided.

Under the doctrine of in loco parentis, or “in place of the parent,” consent is deemed given for treatment of a minor in emergency cases requiring immediate hospitalization, medical attention or surgery, if after reasonable efforts the parent(s) or other legal guardian(s) cannot be located. NRS 129.040. The public policy reasons for this exception are self-evident and the law generally is reluctant to impose liability upon a health care professional who renders lifesaving emergency treatment to a minor under these circumstances. But, it is important to note that reasonable efforts to locate the parent(s) or guardian(s) must be made, and obtaining the informed consent of the minor, although not legally binding, is advisable as well.

A minor who is under the influence of, or suspected of being under the influence of a controlled substance may give express consent for treatment for the abuse of drugs or related illnesses. NRS 129.050. If the minor is unable to give express consent due to intoxication, consent is implied. But, while the consent of parent or guardian is not required by law to authorize such treatment, the health care professional must make every reasonable effort to report the treatment to the parent or guardian within a reasonable time after the treatment. In addition, the law grants immunity from civil or criminal liability for the health care professional who renders treatment under these circumstances. Similarly, parental consent is not required to treat a minor who requests examination or treatment for any sexually transmitted disease. NRS 129.060.

The Nurse’s Role

Even though consent to treatment is the physician’s responsibility, the nurse is integrally involved with the entire process of treatment and therefore also in informing the patient, assisting the patient in making decisions, and administering and supervising treatment once those decisions are made. The nurse may be caught between conflicting loyalties and obligations, especially if the patient’s decisions do not conform to recommendations of the health delivery team. In the most extreme cases, a patient may even leave the hospital against medical advice (“AMA”).

If a patient leaves or attempts to leave a facility AMA, the nurse may be the only personnel present to contend with the situation. The nurse should make every attempt to convince the patient to wait until his supervising physician can be summoned to discuss the situation. If this is not possible, the nurse should try to determine whether the patient’s decision is truly informed and voluntary, and if not, inform the patient of the risks associated with leaving the facility’s care. Although the nurse cannot make a legal determination as to the patient’s competency, the patient’s mental status should be considered and noted. If the patient is mentally ill, intoxicated, or under the influence of narcotics, the decision to leave the hospital AMA may not be an exercise of the patient’s rights. Nonetheless, the patient is presumed to be competent to accept or refuse treatment unless reasonable indicators suggest otherwise, and any action taken in contravention of a patient’s stated wishes should first be carefully considered.

The nurse should contact the patient’s physician as well as social services and the hospital administration. The patient’s spiritual advisor or the hospital chaplain may be of assistance as well. If possible, the nurse should ask the patient for permission to contact a relative or loved-one who might assist in further discussion.

Maintaining accurate and thorough documentation is essential throughout the duration of care for a patient. It is especially important when the patient refuses recommended treatment. In the event that a patient refuses treatment or leaves the premises AMA, the nurse should document in clear and plain language not only the events that occurred and what was said by whom, but all observations that might be relevant.

Forcibly detaining a patient or using restraints should be reserved as a last resort and only when absolutely necessary for the patient’s well-being. Most hospitals have developed clear guidelines regarding the use of restraints or physical intervention under certain circumstances. Nurses should consult with the institution’s administration to determine when these measures are appropriate and what must be done when restraints are used. The use of restraints is discussed in greater detail in the next section of this chapter.

When a patient refuses treatment or leaves the facility AMA, the nurse should at least attempt to persuade the patient to sign an AMA form acknowledging that his action is freely chosen after having been informed of the implications and that he wishes to proceed against medical advice. This type of document is typically required by most hospitals, but it will not provide an unassailable defense in the event of subsequent legal action. It will have to be independently demonstrated that the patient was acting voluntarily after being informed of the implications of his actions.

Again, the nurse should supplement an AMA form with narrative documentation describing all statements and observations to bolster evidence that the patient was indeed informed. This narrative should include at the very least what was said by all parties using quotations and precise transcription whenever possible, a description of the patient’s demeanor as perceived by the nurse using neutral and objective terminology, a statement describing the patient’s mental condition, and who was notified and when. For example, “patient seemed out of it and angry,” although obviously comprehensible, is neither professional or helpful in the event the patient pursues legal action. A more sophisticated and objective description might be phrased as follows: “patient appeared disoriented, hostile and agitated; exhibiting poor motor control.” Obviously, confrontational interactions can be upsetting and maintaining objectivity is difficult when the nurse must also record these observations contemporaneously.

Whenever possible, the nurse should also provide patients with special discharge instructions stating the patient’s current diagnostic evaluation and recommended course of treatment. These instructions should also tell the patient what signs or symptoms warrant immediate attention and transportation by ambulance.

PHYSICAL RESTRAINTS

Physical restraints are used by nurses when necessary to safeguard the patient from falling or moving out of bed, or from removing IV lines and other invasive devices. Unfortunately, physical restraints are associated with an estimated 200 deaths and many more injuries every year. Most of these incidents involve elderly patients. Obviously, the use of physical restraints is not a routine occurrence. Most injuries related to restraints are sustained because the wrong restraint was used, or the restraint was used incorrectly or for too long a period of time.

Most hospitals, nursing homes, and other health care delivery systems have in place procedures and protocols for the use of physical restraints. Nurses should thoroughly familiarize themselves with their employer’s directives and strictly comply with those instructions when ordering or applying restraints on a patient or resident. If possible, communicate with the patient in advance and explain the rationale and necessity of the restraints. Naturally, the use of restraints is a frightening experience and most patients will approach them with considerable trepidation and reluctance. In other cases, the patient may not be conscious or coherent, but upon regaining senses, the patient will be disturbed to find his mobility curtailed. It is important to explain the situation quickly in these circumstances.

Nevada provides criminal penalties for “false imprisonment” and “battery.” NRS 200.460; 200.481. False imprisonment is an unlawful violation of the personal liberty of another, and consists of confinement or detention without sufficient legal authority. A nurse who restrains a patient without authorization or justifiable cause could be subject to criminal prosecution for this crime or a civil suit for the tort of wrongful imprisonment. Battery is defined as the willful and unlawful use of force or violence upon the person of another. Again, a nurse who applies physical restraints with authorization or justifiable cause may be prosecuted for the crime of battery, or sued under the tort of battery. The use of force is unlawful when it is against the patient’s wishes and without prior consent. Some hospital admission forms or general consent forms contain provisions that restraints may be used if necessary. When signed by the patient, these forms may properly authorize the use of restraints, but the circumstances must still independently justify their use.

The use of restraints in nursing homes and long-term care facilities has been regulated by the federal government since 1987. 42 U.S.C. 1395i-3; 1396r. The relevant legislation was part of a national nursing home law which required substantial improvements by facilities, and imposed duties on state and federal authorities to improve the new environment for the long-term resident population.

A national Resident’s Bill of Rights was established to ensure that nursing homes protect residents’ natural rights guaranteed by the Constitution, such as the right to vote. The Bill of Rights also embraced the principle of patient autonomy and specifically stated that residents have the right to be free of restraints, physical or chemical. Furthermore, restraints may not be used for discipline, or for convenience, but are only appropriate when used for a specific medical condition. When restraints are used, the duration of use must be strictly limited, and use must be continually reviewed with an emphasis on reducing long-term use.

Nevada law similarly addresses the use of restraints in hospitals, nursing homes, extended care facilities, and long-term care facilities. NAC 449.331. This provision mandates that, other than rooms approved by the Health Division for detention of psychiatric patients, all rooms for patients must not be kept locked when occupied. Furthermore, the confinement of patients in locked rooms and other physical restraints may not be used, except when necessary to prevent injury to the patient or others, and only when alternative measures are not sufficient to accomplish the purpose. A patient may only be confined pursuant to a signed written order by the patient’s physician. Otherwise, in clear-cut cases of emergency, the physician may give an order to confine by telephone, but the physician must sign a written confinement order on the next visit. In applying restraints, careful consideration must be given to the methods by which they can be speedily removed for the safety of the patient.

Obviously, the law considers the use of restraints a serious potential infringement of individual liberty, permissible only when absolutely necessary in the patient’s best interests. Therefore every alternative should be considered and attempted before using them. These alternatives include using pillows between the patient and the sides of the wheelchair in order to immobilize the patient, and using lap trays to provide support and stability and keep patients in place when necessary.

Changing a patient’s environment in recognition of his particular ailment may diminish the need for restraints. For example, patients with “sundown syndrome,” the tendency to become disoriented in darkness, are often confused, disoriented, and prone to wandering. These patients may benefit from company until achieving sleep, or the use of music or a nightlight may soothe their fears. Many nursing homes have incorporated the use of environmental restraints; carefully engineering the furniture and architecture of the facility to organize patient movement in specific patterns. Many patients, especially long-term care residents, benefit greatly from personalizing their surroundings so that their environment becomes more home-like.

Communication with a patient is perhaps the most essential and effective alternative to restraints, and is absolutely necessary when restraints are actually used. If a patient understands that bed rails must be raised to prevent him from falling out, he will most likely agree to their use and thus avoid more drastic alternatives such as straps. Any restraint that is applied should be removed as soon as possible. During use of a restraint, the patient should be closely monitored to ensure that he is repositioned regularly. Protracted immobility leads to or aggravates many conditions including bedsores, dehydration, depression, infection, and incontinence.

Nurses most often make the determination that restraints are necessary even though a physician’s order is required. Choosing the appropriate restraint is a judgment call, and the nurse should always utilize the least restrictive restraint available. But, just as there is liability for wrongful use of restraint, failure to use restraints when they are medically necessary may also result in liability if the decision is determined to deviate from the prevailing standard of care.

The United States Food and Drug Administration (FDA) has published a report warning against the overuse of restraints and recommending certain guidelines for judicious use. First, the nurse should select the appropriate device for the patient’s condition. Check the patient’s weight and height to be sure that the device used is the right size. Next check the positioning of the restraint, particularly in the front and back of the body. Knots should be tied in such a manner that they may be easily accessed and released. Finally, bed restraints should be secured to the bed springs or frame, not to the mattress or side rails. If the bed is adjustable, prevent constriction by securing the restraints to parts of the bed that move with the patient. If the restraints are secured to the parts of the frame that do not move, the patient may be suffocated or otherwise injured when the bed position is manipulated.

Documentation is always important, and especially so with patients who may require restraints. The nurse should memorialize every attempt to use alternative methods. If restraints are used, the conditions that justify such use should be carefully noted. It is also critically important to record the duration of each use. So, if a restraint is applied episodically over an extended period of time, each episode - no matter how short - should be documented separately.

Language differences encountered by nurses are manifest in many imaginable contexts, including interactions between the nurse and colleagues, or with patients who do not share a native tongue. According to the United States Immigration and Naturalization Service (INS), as of 1990 there were almost 20 million foreign-born citizens living in the U.S., representing approximately 8% of the total population. Moreover, this country is rich with regional variations of dialect and accent that may often give the sense of communicating with someone of non-native origin. A Louisiana cadence may sound as foreign in a California ICU as the Maine twang will in a South Florida operating room.

The legal dilemmas posed by language differences in the workplace may also include a recognition that nursing, and the broader medical care field, naturally utilizes terminology and acronyms that taken together approximates a foreign tongue. Speaking in “medicalese” may unintentionally ostracize and alienate patients and lay-people. As such, medical jargon can be just as disruptive, or cumbersome in patient and patient-family interaction, as other language differences.

But this section is more concerned with issues arising from interactions between individuals, one or more of whom is not a native English speaker. Language differences of any variety can imperil a patient’s safety or produce destructive tension in the workplace. Effective communication requires not only that the nurse be clear and comprehensible, but also requires some affirmation that comprehension has been achieved. In short, the nurse must satisfy herself that she has been understood and that communication from others is understood by the nurse.

Language differences present many possible problems depending on the circumstances of each given scenario. For instance, many physicians practicing in the United States are nationals of other countries, or were raised and educated in other countries, and English is their second language. To what extent must the nurse facilitate communication between patient and doctor? What is the institution’s responsibility to provide a translator when a patient doesn’t speak English at all? Or even, do health care co-workers have the right to speak with each other in a shared native tongue? Many foreign-born nurses immigrate to the United States each year, and these skilled professionals can and do contribute tremendously to the field. According to the United State Immigration and Naturalization Service, over 8,200 nurse immigrated to the United States in 1996 alone. These nurses are doubly valuable in that they can often facilitate treatment of patients who are not proficient in English.

The law remains unsettled on these issues, but clearly non-native speakers may not be subjected to discrimination in the workplace on the basis of their nationality. But the law does not provide absolute protection to non-native speakers or require that others accommodate linguistic deficiencies or heavy accents if they interfere with a bonafide job requirement.

Can an employer institute “English only” rules for communication among co-workers in the workplace? Probably not, under the federal anti-discrimination legislation Title VII of the Civil Rights Act of 1965, unless the workplace regulation is an objectively implemented measure that is reasonably designed to accomplish a legitimate business-related goal. Title VII broadly prohibits employment discrimination based on national origin, and a person’s native language has been held to be closely related to one’s national origin and identity. But, co-workers who speak languages other than English may alienate others and create tensions that erode a unit’s efficiency and cohesion.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that administers Title VII. The EEOC broadly defines national origin discrimination as including "the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." But the agency has determined that in very limited circumstances, English-only rules may be permissible if the employer can demonstrate that the rule is predicated on genuine business necessity that supercedes any disparate impact caused by the rule. Legitimate reasons that may justify English-only rules include: promoting employee efficiency, productivity, and safety; or maintaining order and discipline.

Communication difficulties among co-workers can have serious detrimental implications for patient safety. Consider a physician speaking with a thick foreign accent who gives elaborate verbal orders: a nurse who must ask the doctor to repeat orders may provoke the doctor to irritability or create an impression of incompetence. But, the danger of misunderstanding a dosage or other order is very real and imperils the patient’s safety and right to competent care.

Much mis-communication can be avoided by simply regulating communication more carefully in the first place. A nurse who has trouble understanding a physician or co-worker’s heavily accented English should repeat an order or other instruction so the other party can confirm that comprehension has been achieved. Other circumstances permit and even favor the use of technology. Many facilities have computerized networks so that electronic communication is possible, and sometimes even required, within and beyond the network. Care orders and instructions may be e-mailed from physician to nurse, or phone orders can be confirmed in writing through facsimile transmission.

Administering medication is one of the most frequent functions of the nurse, and it is also the area of nursing care that involves the greatest risk. The American Nurses Association (ANA) found in a 1996 survey that approximately 2% of the total medication doses delivered to hospital patients was administered in error. Even the most skilled and vigilant nurse practitioner will at some point in her career administer the wrong medication, or administer the proper medication in the wrong dosage or out of cycle. Other common errors include lapses in policy or practice by shortcutting procedural safeguards. Often these errors occur simply because a mistake is compounded or passed along in the chain of administration: the order originates with a physician and is transferred through several channels before medication is actually delivered to the patient. As the individual responsible for introducing medication into the patient’s system, the nurse has the responsibility to check and double-check counter-indications, allergies, and dosage. The nurse must monitor for physicians’ errors and the errors of nurse colleagues. In short, the nurse is responsible to ensure that the correct mode, route, site, or technique for administering medications is used in order to avoid liability.

Regrettably, each year medication errors result in grave injuries and malpractice actions against hospitals, physicians, and nurses. Liability insurers collect substantial premiums to defend against potential malpractice claims, but medication errors with or without malpractice lawsuits may also result in disciplinary action by the Board, even if a court determines that the claim is without merit. Misconduct, if formally determined, can result in employment termination and loss of unemployment benefits. True negligence may even result in criminal punishment. A thorough discussion of liability issues in medication errors can sound quite polemic, but as with most issues discussed in this volume, professional conduct at or above the standard of care coupled with meticulous documentation will significantly limit the likelihood of error and bolster a legal defense in the event of a lawsuit.

There is much public pressure on hospitals to take greater responsibility in accounting for the conduct of staff, including nurses. In April of 1996, “The Patient Safety Act of 1996" (HR 3355) was introduced to make hospital data accessible to the public. This revolutionary bill, endorsed by the ANA, requires public disclosure by hospitals of staffing levels and outcomes and calls for “whistle blower” protections for nurses who expose deficiencies that imperil patient care.

Nurses are frequently held responsible for medication errors, despite primary responsibility for medication decisions resting with the physician. Nurses are no longer seen as passive functionaries fulfilling a physician’s instructions, but rather as an active and responsible component in the complex health care delivery system. Nursing is an advanced, sophisticated, specialized and increasingly independent profession. Recently, the federal government has begun to relax standards by which authority to prescribe medications is administered. Many states, including Nevada, have granted some authority to advanced practice nurses (APNs) to prescribe pharmacological agents. For example, prescriptive authority with a physician’s collaboration is granted in Alabama, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, and West Virginia. Most commentators characterize the increasing leniency in delegating prescriptive authority as responsiveness to pervasive problems of access to the health care system, particularly in rural communities, poor urban areas, and institutional settings. The trend is also seen as a cost-effective part of the solution to the national problem of cost-containment in health care. Under Nevada law, an APN may be authorized to issue written prescriptions for poisons, dangerous drugs and devices if authorized by the Board pursuant to a written application to the Board upon award of a certificate of recognition in advanced nursing practice, after having completed an academic program that includes an advanced course in pharmacotherapeutics. NAC 632.257.

Each hospital develops its own particular set of policies and procedures designed to safeguard against medication errors. The “five rights” and “three checks” doctrines are long-standing shorthand for routines of practice to protect against medication errors. The “five rights” require that the right drug is administered to the right patient, at the right time, in the right dosage, and by the right route. The “three checks” require that the nurse check the medication before removing it from its container, check the medication before administering it, and then double check the medication once again after it is administered, including monitoring the patient for adverse reactions.

In a recent case, three Colorado nurses were indicted on criminal homicide charges in the death of an infant boy due to administration of an overdosage of penicillin. In 1997, two of the three nurses charged pleaded guilty to criminally negligent homicide while the third nurse, who was the baby’s primary nurse and did not administer the medication, was acquitted after trial.

This unfortunate incident began when a pharmacist, who was not charged, filled a penicillin order in a much larger dosage than was ordered by the baby’s physician. When the staff nurse received the syringes, she noted the larger dosage and consulted a neonatal nurse practitioner. The nurse practitioner decided to change the method of delivery from intramuscular, as originally specified by the physician, to intravenous. As a result, the baby died despite efforts to resuscitate him.

The Colorado State Board of Nursing found that the nurses’ actions warranted disciplinary action and suspended their professional licenses for one year. In addition, the Board imposed rather extraordinary sanctions, ordering all three nurses to attend extensive counseling and formal re-education in neonatal pharmacology. In addition, the Adams County district attorney decided to pursue criminal charges perhaps in response to public outrage and demand for action. The case is significant because it indicates that the level of malpractice was perceived to be so egregious that professional censure was considered inadequate punishment and an extraordinary imposition of criminal sanctions was felt to be necessary. Although the Colorado Nurses Association (CNA) and the American Nurses Association (ANA) both expressed reservations about the use of criminal punishment in response to a problem traditionally sanctioned by the state board of nursing, the CNA Executive Director acknowledged that “Registered nurses, like other licensed professionals, are accountable to the public for their actions.”

Pursuant to the plea agreement, the staff nurse who administered the injection and the NP who changed the route of administration did not receive jail time, but instead received a suspended sentence, two years of probation, and were required to perform 24 hours of public service educating nursing students about the incident. Although criminal charges are rare, nurses must be cognizant of the potential for this form of punishment.

Dosage errors are most often the result of haste and miscalculations in mathematical formulas such as flow rates. All calculations should be checked and double-checked, and if doubt still remains, a colleague should be enlisted to review the process. A common error involves the placement of decimal points; any fractional dosage should be recorded with a “0" preceding the decimal point so that the decimal point is not inadvertently overlooked.

Dosage errors may occur through no fault of the nurse, but the nurse who administers the medication is nonetheless responsible. Remember, a nurse is responsible to advocate on behalf of patients and should question any medication order that seems questionable or inappropriate.

Often questionable dosage orders can be remedied by a simple request for clarification and confirmation rather than by antagonistic critique of physician judgment.

Many seemingly innocuous clerical errors can also lead to catastrophic results, but can just as readily be easily avoided. Nurse practitioners should pay close attention to labels, especially where large dosages are involved. Similarly, special care is needed when administering medications to patients with acute sensitivities or particularly vulnerable systems, such as neonatal patients, infants, or the elderly. If dosage or other instructions on a label are confusing or unclear, a nurse should not hesitate to request that the pharmacist prepare a more comprehensible label. Each unit should develop and implement medication storage procedures that minimize the opportunities to confuse similar medications. Finally, special apparatus such as multiple IV lines and infusion pumps should be carefully and regularly monitored to ensure that the equipment is properly functioning and delivering the appropriate dosage.

Another illustrative case from the Nevada Supreme Court demonstrates the judicial migration in malpractice actions away from the traditional “locality” rule, which held practitioners responsible for the level of care comparable to other local practitioners, to a “national” rule, which compares the allegedly negligent care to a national standard as defined by qualified experts. In Wickliffe v. Sunrise Hospital, Inc., the parents of a teen-age girl sued a Nevada hospital for the wrongful death of their daughter who suffered respiratory arrest following successful surgery and died twelve days later. 101 Nev. 542 (1985). The case is significant because it held that a hospital is required to employ the degree of skill and care expected of a reasonably competent hospital in the same or similar circumstances, but without regard to the hospital’s geographic locality.

In December of 1978, thirteen-year-old Angela Wickliffe underwent an operation at a Hospital to correct spinal curvature caused by scoliosis. The patient presented as otherwise normal and healthy, and the operation, known as a Harrington rod procedure, achieved successful results. Upon completion of the operation, Angela was given Narcan to reverse the effects of anesthesia. About ten minutes later, she exhibited symptoms of delirium and began thrashing about. The anesthesiologist gave the recovery room nurse verbal orders to administer two milligrams of Morphine to sedate Angela. The anesthesiologist observed the patient until satisfied that she was responding favorably to the morphine and then he left to assist another procedure without giving the recovery room nurse further instructions. The nurse continued to administer Morphine, delivering a total of 12 milligrams over the next 20 minutes. The nurse consulted the anesthesiologist and he approved administration of one milligram of Valium because Angela continued to be restless. About two hours later Angela went into cardiac arrest and was revived to a comatose state. She never regained consciousness and died from brain damage due to lack of oxygen.

At trial, the Wickliffes introduced evidence that, in addition to violating hospital procedures concerning monitoring post-operative patients’ vital signs, the nursing staff failed to give Angela appropriate care under the circumstances in comparison to a national standard. The Wickliffes sought to establish the national standard of care through testimony of an expert witness on nursing procedures. The trial court excluded the expert’s testimony, but the Supreme Court of Nevada reversed and remanded the case, holding that the local rule no longer applied. As such, the Wickliffes should have been permitted to show through their expert witness that the Sunrise Hospital nurses failed to render competent care. The level of care to which a hospital must conform is no longer subject to narrow geographic limitations but is instead a nationwide standard. Thus, an expert witness who is familiar with the standard of care of a reasonably competent hospital in similar circumstances wherever located may testify in a negligence action against a hospital or its employees.

Wickliffe offers a cautionary tale with several important aspects: nurses are charged with greater responsibility but with that expansive role comes even more accountability. The index by which this accountability is measured is now a national standard that may be quite strict indeed.

In another case involving nurses, an elderly man was admitted to a University Medical Center in Texas, complaining of pain in his legs which was subsequently determined to be caused by blood clots. During his stay in the hospital, a nurse administered the wrong medication -- a sleeping pill that had not been prescribed for him. The error was discovered by the patient’s wife who became extremely nervous and upset. In turn, the patient became anxious and experienced great distress including profound sweating and shortness of breath. Although the patient did not experience any adverse reaction to the drug itself, he subsequently required oxygen and further medication to calm him. His physician also ordered an electrocardiogram performed to rule out cardiac distress. However, on the same day that the sedative was erroneously administered, the patient suffered an episode of unrelated congestive heart failure or volume overload. The patient sued the hospital originally alleging that the nurse’s medication error caused his heart attack. The lawsuit was later amended to claim that the hospital’s negligence caused him to suffer anxiety, shortness of breath, and emotional distress and damages in excess of $100,000.00. The Texas Court of Appeals affirmed the jury verdict in favor of the patient, holding that the hospital was directly responsible for the patient’s very real emotional and psychological injuries. University of Texas Medical Branch v. Danesi, 1999 WL 164444 (1999) (unpublished decision).

Under Nevada law, a nurse is required to have completed basic training in pharmacology and is responsible for the verification of an order given for the care of a patient to ensure that it is appropriate and properly authorized, and that there are no documented contraindications in carrying out the order. NAC 632.220. If a nurse is unclear whether an order calls for digoxin or digitoxin, phenobarbital or pentobarbital, or quinine versus quinidine, the order should be confirmed according to the “five rights” and “three checks” protocols. The perils of administering the wrong substance, and the ease with which this type of mistake might be made, can be appreciated when one considers that not only do various drugs sound alike but often the indications are similar.

Fortunately, hospitals utilize “environmental” safeguards to minimize the opportunities for human error. Dangerous and poisonous drugs are stored in entirely different locations, with access restricted, than drugs that are not commonly associated with medication errors. The patient is also often aware of what medications are appropriate and may object to consuming pills that are not recognized. Whenever possible, a nurse should attempt to educate patients in their own care by stating what a particular pill or injection is by name, the dosage being administered, and the purpose of the drug.

Medication errors also occur when a nurse administers a drug via the wrong route, such as an intravenous (IV) injection when an order calls for intramuscular injection. These errors can occur because a doctor’s orders are misread or misinterpreted, or because the nurse confuses a feeding line and IV line. Most errors in medication routing can be avoided by carefully confirming orders and following established procedures for each route of administration. Moreover, before introducing medication into a line, the tube should be followed both to its origin and its local site to confirm that it is the intended route.

In a Kansas case, a nurse was found responsible after a patient developed fat necrosis at an injection site in her buttocks due to injection of Dramamine into the subcutaneous tissue. After a hemorrhoidectomy, the patient’s treating physician placed an order over the phone that the patient should receive Dramamine hypodermically, without specifying whether subcutaneously or intramuscularly. The Supreme Court of Kansas found that nurses are familiar with how different drugs are administered, and that nursing judgment is used to determine whether an injection should be given subcutaneously or intramuscularly when the method is not specified by the physician. Barnes v. St. Francis Hospital and School of Nursing, 211 Kan. 315 (1973). In short, the court held that the nurse should have known how to properly inject Dramamine, because a reasonable nurse under similar circumstances would have known. Furthermore, if the nurse had any doubts on proper procedure, she should have consulted the treating physician or her colleagues.

In the leisure of hindsight, it is deceptively easy to identify how medication errors occur and to attribute blame for various failures. But prevention is essential and studying errors improves policy and procedure so that particular types of errors do not repeat themselves. The nurse should always adhere to the routines articulated by the “five rights” and “three checks” doctrines.