Documentation: Legal risks for nurse managers

Nurse Manager Website, August 1, 2007

The risks for anyone in nursing management are similar. Although the staff members you supervise are held accountable to their own nursing practices, your scope of responsibilities includes monitoring their compliance with organizational policies, ensuring safe staffing levels, and enforcing contemporary nursing practice.

There are several potential sources of liability for malpractice against you as the nurse manager. These causes of action include:

  • Negligent hiring
  • Negligent retention of incompetent or impaired employees
  • Failure to supervise and train staff members
  • Inappropriate assigning of staff members (Connor 2006)

    Therefore, you will be held accountable for providing the staff members with appropriate management, supervision, resources, and support to carry out their duties. If an adverse event occurs, and the case becomes an allegation of malpractice, the hospital risk manager, your organization's attorney, and the attorney(s) for the plaintiff may call you in during preparation and ask you to demonstrate your level of competence as the nursing-management representative, your reputation for having sound management style, and a consistent, proactive approach to ensuring safe patient care.

    If a case of malpractice does occur, all aspects surrounding the case will be examined:

  • Could this event have been prevented?
  • Were patient safety practices enforced?
  • What was the competency level of the staff nurses involved?
  • Did the staff have adequate staffing, supplies, and knowledge to prevent the event?
  • How was the case managed once the event was discovered?
  • Did everyone meet the standards of care when rendering services?
  • What led up to the adverse event?
  • What was your role in the event, both expected and completed?

    Negligent supervision

    As a director, nurse manager, or supervisor, you must ensure that patients have appropriate care and that the staff members providing the care have appropriate supervision. Therefore, if a patient is injured and suspects that staff members were not adequately supervised, he or she will allege that your supervision was negligent.

    Your liability for negligent supervision will be based upon any of the following:

  • Your delegation of patient care to a nurse who was unable to perform the care
  • Your failure to personally supervise the nurse when you knew or should have known that supervision was necessary
  • Your failure to take the necessary steps to avoid patient injury when you were present and able to intervene
  • Inadequate staffing of the unit (perceived as negligent judgment in the nurse manager role)

    When negligent supervision is alleged, you will be held to the "ordinary, reasonable, and prudent" standard. That is, you will be measured against what other nurse managers would have done in a similar situation (Brent 2001).

    Imputed liability

    You also could be held accountable for a nurse's actions by the definition of imputed liability. Imputed (or vicarious) liability states that you may be liable because you hired a nurse to provide nursing services on behalf of you and the organization. When your nurse is found guilty of providing negligent care, the hospital will likely be held responsible for the burden of compensation as it is in a better financial position than the nurse. However, it is your responsibility to ensure the hiring of competent staff members, as well as the comprehensive orientation and thorough supervision of all of your staff members, to reduce the organization's liability.

    Manage your risk

    In addition to what was done after the event, there will be questions raised about nursing management's responsibility with regard to maintaining staff competency, adequate work environment, etc. Your job description will be reviewed, in addition to the current standards of practice for anyone in nursing management. Your level of education, certification, and continuing competence will also be questioned.

    You must be able to defend your management competency by demonstrating your enforcement of all of the organization's education and training requirements, as well as ongoing enforcement of policies related to patient care. This would be self-evident in the rate of compliance with the completion of job orientation, annual competency and education requirements, and attendance or effective communication with all staff regarding unit and organization business and new policies/practices.

    Use the checklist below to help manage your risk when an adverse event occurs.

    Questions that could be asked during a deposition of a nurse manager include:

  • Did the nurse(s) successfully complete an orientation program before being assigned to provide care?
  • Was a preceptor used for the orientation and how long was the orientation?
  • Did this nurse and other staff nurses consistently follow the patient care policies and procedures?
  • What does the most recent performance appraisal demonstrate? If there were areas needing improvement, did you provide the necessary resources and reevaluate the nurse/staff members after your intervention?
  • Does the patient-care policy involved in this case reflect current, accepted practices?

    Source: This excerpt is adapted from HCPro's new book Managing Documentation Risk: A Guide for Nurse Managers, Second Edition, by Patricia A. Duclos-Miller, MS, RN, CAN, BC. For more information or to order a copy, visit www.hcmarketplace.com.