Obviously, no healthcare worker goes to work wanting to harm a patient. Still, serious mistakes that affect patient care continue to occur. Why? Because healthcare is much more complex than it used to be.

Health professionals are taking on more responsibilities than ever and, as a result, they are exposing themselves to legal action against their professional licenses and possible malpractice suits.

The shortage of healthcare workers and the increased complexity of patient care means that healthcare workers are trying to cope by taking shortcuts, says Suzanne Edgett Collins, an attorney and associate professor of nursing at the University of Tampa.

"With so many patients and so little time, healthcare workers are putting themselves more at risk for losing their ability to practice," says Collins.

A reasonable standard of care

If you make a mistake that harms a patient, and you wouldn't have made that mistake if you had met a reasonable standard of care, your conduct is considered malpractice. Most malpractice cases stem from medication errors, failing to monitor and assess a patient, failing to follow hospital policy, and working while impaired (e.g., due to inadequate sleep or use of a controlled substance).

A big area of concern for nurses in particular is the increased reliance on unlicensed personnel—a nurses' aide for example—to perform certain tasks. Nurses often must delegate tasks to those personnel.

The most important thing you can do once a task has been delegated is to follow up, says Collins. "Breakdowns in patient care usually occur because a delegated task was not followed up on—or appropriately supervised. Your goal is to make sure the patient doesn't get lost in the shuffle."

In malpractice cases where nurses have been found to share legal responsibility with unlicensed personnel, it is usually because the nurse failed to properly monitor the patient.

Are you accountable?

Healthcare workers need to know what they are legally accountable for, and the limits of that accountability, says Janine Fiesta, an attorney who recently retired from her role as vice president of legal services at Lehigh Valley Hospital in Allentown, Pa. She points out that, under individual accountability, healthcare workers are responsible for their own actions.

But, she says, legal accountability also depends on control. "If you are the person in control of the situation—a nurse administering drugs for example—if something goes wrong, you are the person who should be held legally responsible," says Fiesta.

If you are supervisor, you are not liable for the actions of others unless you know they are incompetent or impaired, and you fail to act.

Of course, you simply cannot control some things—staffing, equipment, hospital security. That's where corporate liability comes in. Short staffing is a common source of malpractice actions. The hospital has a legal responsibility to ensure that units are adequately staffed. If your unit is short-staffed—to protect yourself and your patients—be sure to let your manager know about the potential for unsafe outcomes, and then document your concerns or fill out an incident report, says Fiesta.

Lack of proper equipment also is a problem in many hospitals that could lead to corporate liability. For example, the popularity of surgeries to treat obesity, such as gastric bypass or stomach stapling, has prompted many hospitals to implement their own bariatric programs, which they may not be equipped to do. "We are seeing more liability cases related to bariatric programs because hospitals have failed to purchase the equipment necessary to adequately serve patients," says Fiesta.

There also are numerous safety and security issues, ranging from environmental safety to workplace violence, that hospitals may be liable for.

"Floating" is one common yet troubling practice in hospitals: Nurses can be floated to units they are unfamiliar with. If you feel you are inadequately prepared to provide safe, competent care in an unfamiliar unit, talk to your supervisor, express your concerns and asked to be reassigned.

Collins suggests that healthcare workers become familiar with research and literature on issues that influence working conditions. The more you know about what affects you as a professional, the more information you can share with your colleagues. Being up-to-date on research will help raise your co-workers' awareness about how your working conditions relate to patient safety, says Collins. Research also gives workers more power when negotiating for change, whether it's done collectively as a member of a union, or as a member of a hospital unit.

It is also important to be up-to-date on your facility's policies. For example, do you know your hospital's hand-washing policy? The national attention that hospital-acquired infections such as methicillin-resistant staphylococcus aureus or MRSA have been getting means that something as simple as washing your hands could keep you out of court.

Communication is key

Failure to communicate is the number-one reason health professionals appear in court.

You have a responsibility to tell your supervisor about problem people or problem situations, says Fiesta. "If you have questions about someone or something, your most important duty is to communicate it. Successful malpractice cases involve preventable, avoidable situations that we did not do anything about."

Fiesta also emphasizes the importance of documentation. Notify your supervisor if you encounter a problem that you can't solve. Document the time, the problem and the patient, and then follow up, she says. Be sure to chart completely and objectively, and to file incident reports when unusual events occur.

Be sure to follow the chain of command and communicate problems up the line. When you question an order or report a problem involving a patient's condition, everyone in the chain of command shares responsibility if something goes wrong.

It is your supervisor's job to solve the problem or communicate the problem up the chain. Your legal duty is satisfied when you have delegated a problem by communicating it to the person above you in the chain of command.

If you find yourself in trouble, get a lawyer. "Don't do anything without legal counsel," says Fiesta.

Most unions can refer their members to an attorney.

"If a member is facing disciplinary action, the union is there for that member from the start," says Bernie Gerard, vice president of Health Professionals and Allied Employees, the AFT Healthcare affiliate in New Jersey.

And remember, you can make a malpractice case worse by engaging in misrepresentation or falsification. Never lie or conceal facts, says Fiesta. "Honesty is the best policy."

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Additional Resources:

• To learn more about your state's Nurse Practice Act, visit the National Council of State Boards of Nursing online at www.ncsbn.org.
• Seeking an attorney? Contact your local or visit the American Association of Nurse Attorneys at www.taana.org.