By Patty A. Hanks, R.N., is a Senior Claims Representative for the Risk Management Foundation.
"Information gathered during the investigation is weighed against the four elements of negligence to help the defense team determine how it will proceed with the case."
The natural fear of the unknown that many nurses experience after being contacted in relation to a medical malpractice claim can be significantly alleviated by understanding the process involved in resolving such claims. Understanding why and when nurses are contacted by an attorney or insurance claim representative can greatly relieve the anxiety those contacts are likely to generate.
The three most common reasons a nurse will be contacted by a claim representative or attorney are:
An essential element in a thorough claim investigation is the dependence on nurses as reporters of facts. This primarily focuses on documentation, but also includes discussions about the issues involved that may not be written in the nurse's progress notes. A nurse whose professional liability is covered though a CRICO-insured institution and who has been involved in an actual claim or named as a defendant in a lawsuit will be interviewed by a Risk Management Foundation (RMF) claim representative. If the claim has become a lawsuit, an attorney who has been retained on the nurse's behalf will also be involved in the investigation.
Occasionally, nurses receive deposition subpoenas (from a plaintiff's attorney) even though they have not been named directly in a lawsuit that may be pending against another health care defendant. If this occurs, the nurse should contact his or her institutional risk manager, who, in turn, will advise the insurer. Because health care providers should never attend a deposition related to a medical malpractice claim without proper legal representation, the Foundation will immediately assign an attorney for any non-defendant nurse who has been deposed in a case involving other health care providers.
Contact by an insurance claim representative does not indicate that an individual has been or will be identified as the responsible party in a claim or suit. The defense team understands that a complete investigation must include input from all individuals with knowledge of the patient care events.
Was it as primary nurse or another capacity?
The nurse will be asked when s/he first met this patient. What was the patient's status? Did the patient have any past medical history that is significant to the care or treatment being questioned?
Was there anything unusual or out of the ordinary concerning the patient on the day of the incident? When did the nurse first identify that there was a problem and who did s/he report it to?
Nurses not named in a claim are often asked to fill in gaps in the history of the patient's care. For example, nurses from other shifts who cared for a patient who fell from his bed will probably be contacted to determine whether or not restraints were indicated.
The investigators will want to determine if the nurse was familiar with the actions, side effects, and usual dosages of the drug. Did s/he refer to a standard reference such as the PDR, and did s/he follow appropriate procedures to verify the patient's name before administering the medication?
If the claim is presented with an allegation of improper treatment, the investigators will want to know the nurse's experience with that particular procedure.
If equipment was involved, was the nurse trained to use it by a manufacturer representative, through institutional in-service education, or via some other method?
The nurse will be asked if the patient understood the nurse's explanation of the procedure to be performed. Did the patient have any specific questions?
What was the institutional policy and procedure for this treatment, and was it followed?
A written procedure manual can be used in your defense, but it may also be used by the plaintiff attorney as a standard that was not met if there is a deviation without a reasonable rationale for doing so.
The nurse will be asked to explain any alterations or inconsistent documentation in the medical record. S/he may also be asked to fill in facts not recorded or to explain confusing or conflicting information.
Since nurses frequently have the most contact with patients and their families, the investigators will want to determine if the nurse can recall any pertinent conversations. Was any family member present when procedures were explained?
Specifically, did the nurse have any conversations with the patient or family regarding the adverse event? Does the nurse recall the patient's attitude towards the event.
The nurse will be asked if s/he can recall any wet spots on the floor. Was the lighting adequate? What type shoes was the patient wearing? Did the patient require eye glasses?
Did s/he have any prior difficulty ambulating? What was the activity order? Was the patient properly assisted?
Was the patient using any appliance such as a cane or walker? What medications had the patient received prior to the fall?
Before the investigation is concluded, the nurse will be asked if, in retrospect, s/he would have done anything differently; and if there is anything s/he did or did not do that caused this incident.
