Malpractice Consult

By Lee J. Johnson, JD

Your liability when you recommend a private duty nurse

Answers to your questions

Q: I'm worried that a nursing shortage at my hospital could compromise my patients' care. What are my options, and what's my liability if I recommend a private duty nurse?

A: You're right to be worried. Since you're aware of the nursing shortage and its ramifications for patient care, you can't ignore the problem and hope it will go away. You have an obligation to protect your patients' welfare.

If you have privileges at more than one hospital, consider admitting patients to another facility with fewer staffing problems, if possible.

You and your physician colleagues should make sure the hospital administration is aware of the situation and the dangers it may pose to patients. Remember, though, that what you say in writing could be discoverable in a lawsuit, and you could be creating liability for both the hospital and yourself.

If you're convinced that a patient needs a higher level of nursing care than the hospital can provide, you could leave yourself open to a lawsuit if you don't inform him.

You're responsible for using your best judgment given the resources available to you. Tell the patient about the documented national shortage of qualified nursing personnel. Discuss the various available hospitals, if there's a choice. Suggest the possibility of private duty nursing. Make sure that the patient is aware of the potential dangers if nurses don't monitor him carefully and intervene appropriately. Discuss the costs of private duty nurses and available insurance coverage. The bill should never come as a surprise.

By discussing these issues, you'll help insulate yourself from a lawsuit even if the patient doesn't accept your suggestions. The patient always has the right to refuse a recommendation as long as he's been informed of the risks of that refusal.

If the patient opts for a private duty nurse, refer him to the hospital nursing office, which will have a list of agencies that are approved by the facility and have met the recommended JCAHO standards. What if the patient prefers a particular nurse or service that isn't on the hospital's list? The hospital will have to grant permission, and may ask the patient to sign a hold-harmless agreement.

You could be liable if you have reason to know that a particular nurse or service is incompetent or irresponsible but you fail to warn the patient against that choice. In general, however, the nurse, nursing service, and supervising nursing staff have liability for their own actions.

In one case I defended some years ago, a private duty nurse was sound asleep when the patient, a stroke victim, fell out of bed. The hospital nurses didn't check on him during the night because they assumed the private duty nurse was responsible. The hospital was sued because its nurses had failed to monitor the patient, and the private nurse was named for falling asleep.

The patient's physician was dismissed from the case. He'd have had liability only if he had recommended a nurse he knew to be incompetent or to have a history of sleeping on the job.

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

2001;19:96.