Avoiding Nurse Litigation Part 2

Litigation Risk Management by Mary Franks, MSN, APRN, FNP-C

In part 1 of ‘Avoiding Nursing Litigation we discussed definitions of malpractice and litigation, along with ways these situations occur.  Part 2 of ‘Avoiding Nursing Litigation’ will discuss risk management. 

Minimizing the Risk

How can we, as nurses and nurse practitioners, minimize our risk of being involved in a nursing litigation situation? It seems it would be as easy right? Unfortunately, that isn’t the case. Several different options can be discussed; however, this is not an all-inclusive guide to avoiding litigation.  We will hit the main points for now, including documentation, knowing the standards of care, adhering to acceptable scope of practice for assessment and treatment, knowing the policies and procedures of organizations, and communication.


Dr. Peter G.Teichman, MD, along with others, states that improving the quality of documentation and communication alone can decrease the risk of litigation. Today, most institutions use EMRs, which serve as the gathering space for information.The EMR is not only utilized by one organization, but occasionally can be shared intra-facility and reviewed by outside organizations that have clear needs for furthering patient care. These organizations can pull the information using the specialized EMR system, which improves effective patient care. This removes the burden of copying over 100 pages for patient transfers and removes questionable handwritten assessments or orders. 

Chart closing is usually an organizational policy. Some systems require 24 hours to close charts, while others allow five days.
Dona Constantine, a writer for the Cooperative of American Physicians, shares that the Centers for Medicare & Medicaid Services (CMS) doesn’t state a specific time frame to close charts. She reports, however, a “reasonable time frame” of 24 to 48 hours. Failure to close charts in a timely manner can cause tie-ups with billing and can also have major impacts on transition of care.

Timely documentation helps others to provide accurate care to patients, as well. Without proper and timely documentation, you or your colleagues may jeopardize both your payment for services and your ability to defend against certain claims. Many providers who leave charts open past their organization's time frame are subjected to potential organization-dependent legal action and fines. 

Documenting all patient-related discussions is highly important. This includes any discussion regarding referral needs, treatment options, orders, and those treatments that are declined. If your patient is noncompliant with treatments, document this along with any counseling that was provided to them. You can also inform the patient in writing of their noncompliance potentially resulting in worsening symptoms and disease processes. As we heard over and over in nursing school, and as attorney groups will advise, document everything. Documentation should include dates, times, medications, or any events/discussions that occurred.

In one example of poor documentation, a family practice physician spoke with a patient on the phone after hours regarding chest pain. The patient was directed to go to the emergency room (ER) for prompt evaluation. The patient agreed to the treatment plan of seeking care at the ER; however, they did not go. The patient suffered a myocardial infarction (MI) later that night. The patient subsequently sued the provider for not telling her to go to the ER. The physician did not document the telephone conversation, so it was the physician’s word against the patient’s.

Standard of Care and Scope of Practice

Another factor in litigation is failing to adhere to the standards of care and the scope of practice for the role. For example, a patient comes into the clinic for knee pain without injury. What do you do? What imaging should be performed on the patient with knee pain without injury? Should you prescribe physical therapy? Do they need a referral to orthopedics? The documentation of the history of the present illness can bring many treatment options, with the deciding factor being the standard of care for knee pain. Knowing and performing proper assessment techniques for different concerns such as knee pain are key elements in the standards of care, as well. Many acute care complaints can be assessed using noninvasive, in-office approaches. For example, in the case of knee pain, the
Lachman test, the McMurray test, and the anterior and/or posterior drawer test can be essential in completing a thorough exam.

If you are not sure how to care for a patient’s specific concerns, consulting with a supervising physician, another provider in the clinic, or referring them to a specialist is more appropriate and less negligent than not treating something that could cause significant morbidity or mortality. I have consulted others and referred patients out to specialists or the ER numerous times when I am practicing in the clinic. There is a phrase that rings a bell, “When in doubt, refer it out.”  

The role of risk management in organizations is to help alleviate concerns; however, you must take care of yourself to avoid litigation. According to NSO, nurses must understand and maintain their designated scope of practice. If you do not feel you can safely and appropriately manage the patient’s concerns or condition, refer out to someone specialized for their needs. Reviewing all pertinent medical history, including family history, is ideal. Many red flags become clear when reviewing this information, warranting further exam, testing, or discussion with the patient.  

As a nurse, you should know the policies of the organization. Not only the organization's policy but your specific clinic setting as well. If you don't feel comfortable with your knowledge of the organization's policies and procedures, reach out to someone in upper management. As noted by Dr. Gupta, the administration is not just for administrators. Administration is not just paperwork; it is reviewing laboratory studies, imaging, and previous history, and acting appropriately based on these data. Basic systems are in place to avoid failure in these aspects; however, failure can still occur if the policies are not followed.  

Along with organizational policy awareness, all nurses should be aware of the Nurse Practice Act in their respective states. Nursing scope of practice is defined at the state level, and each state has established different care practices, laws, and regulations governing nursing practice. Iowa, for example, is a full practice authority (FPA) state. This means that in the state of Iowa, state practice and licensure laws permit all nurse practitioners to evaluate patients, diagnose, order, and interpret diagnostic tests, and initiate and manage treatments, including prescribing medications and controlled substances, under the exclusive licensure authority of the state board of nursing without a collaborative agreement with a physician. 

There are 30 states with
FPA identification for nurse practitioners. Reduced practice states reduce the ability in one or more areas of nurse practitioner practice and require collaborative physician agreements. Restricted practice requires supervision and delegation by a physician for the nurse practitioner to provide patient care. Navigating these laws can be tricky, especially if you are moving from a full practice state to a reduced or restricted practice state.


Communication and documentation go hand in hand. Part of communication with other providers is fully and accurately documenting assessments and care plans, which can be sent electronically to other care providers to ensure continuity of care. In addition to communication among providers, communication with patients is also vitally important. All patients should be provided with explanations of tests and instructions on their treatment and continuing care, including when to follow up and when to seek immediate medical assistance. Even if this standard is followed, the question becomes: Does the patient understand?

For example, a Spanish-speaking family presents to an urgent care setting for treatment. A translating video assistance device is utilized for their care despite the family having some understanding of the English language. Instructions are provided to the family in English, but the mother does not understand some of the terminology. The patient returns to the clinic two days later, prompting concerns that their condition is not improving and raising the possibility that emergency care may be necessary. Upon further discussion, it becomes clear that the patient’s mother did not understand that she should be holding another medication while administering the newly prescribed agent. Had the instructions been provided in the family's native language, would the outcome have been the same? In this case, the parent could argue that they were not provided with enough information to allow them to recognize potentially serious complications.

Avoid Litigation Risk Takeaways

As healthcare providers and professionals, nurses and nurse practitioners have logged thousands of hours to be able to provide hands-on appropriate care to patients of all ages, genders, and complexities. Litigation concerns can be scary; however, there are ways to avoid this. Assuring proper documentation, understanding policies and procedures, adhering to the established standards of care, and effective communication can help nurses avoid many of the litigation risks that can arise when providing care.

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