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Malpractice Consult: Your liability for a nurse's mistake


Your liability for a nurse's mistake


Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Your liability for a nurse's mistake

Q: I'm being sued because of a medication error. The plaintiff presented at the ED with a deep vein thrombosis and pulmonary embolus. I ordered an IV heparin drip over the phone after asking the nurse who called me what medications the patient was receiving. Subsequently, I learned that he was already on heparin, which the nurse had never mentioned. Although hospital policy prohibits two types of heparin at the same time, the violation wasn't caught by the pharmacy.

Am I likely to be held liable, even though the mistake wasn't mine? And what can I do to prevent a similar mishap from occurring in the future?

A: A breakdown in communications and failure to follow safety guidelines are two of the main causes of patient injury and litigation. While you're not responsible for the mistakes of others, you are expected to use your best judgment given the resources available to you. You could be held liable if you were aware of a serious problem but took no action to resolve it.

Make sure the hospital is aware of what happened. Discuss it with the nursing and pharmacy directors. After all, the failure of staff to follow the hospital's own internal policies creates liability for the institution.

But be careful about writing your complaints in a memo or letter, because they could become discoverable in litigation. And never make any accusations in the patient's chart. You can be sure the plaintiff's attorney will see a copy, and the finger-pointing could help him win his case.

When it comes to heading off future problems, you have to understand that there's a well-documented national nursing shortage, leaving overworked nurses with more patients to care for than they can sometimes safely handle. That creates greater responsibility for physicians to make sure that a nurse has checked all the bases when reporting on a patient and that their orders are being carried out.

When you communicate with the nursing or pharmacy staff, be as clear and concise as possible so there's less room for misunderstanding. Refer to hospital policy if applicable. But don't be confrontational or insulting. Demeaning hospital staff won't help your patients or reduce the chance of errors. It just creates an atmosphere of mistrust and hostility. Check in on the patient and with the nursing staff on a regular basis during critical periods.

Your documentation of nursing orders must always be clear, concise, detailed, and complete. Leave nothing open to interpretation or guesswork. Failure to document your phone conversation with a nurse could compromise your defense if you're ever sued again. Use a telephone message pad to note all phone conversations with nursing staff as well as patients, and place the notes in the office record and in the hospital progress note.

Finally, realize that it's your responsibility to order private duty nurses for conditions that need special attention. Involve the patient in the decision-making process. Informed consent deflects a lot of malpractice liability. Tell the patient about the nursing shortage and the possible dangers if nurses don't watch carefully or intervene appropriately. Discuss the costs of private duty nurses and what insurance coverage is available.


The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.


Lee Johnson. Malpractice Consult. Medical Economics 2002;17:115.

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