Litigation has been a major catalyst in the reform of the criminal justice system, including the delivery of health care. Correctional nurses can expect to be involved in litigation involving health care during their professional career in this specialty practice area. Being familiar with the legal system particular to correctional health care, regulations and other information about the nurse practice act, as well as the profession’s code of ethics assist nurses in steering through the liability landscape (Moore 2013).
I recently reviewed an article describing a study of nurses practice insurance claims. What really caught my attention was that correctional health was one of the specialty areas included in the analysis. The results were very interesting and are summarized here.
CNA HealthPro and Nurses Service Organization (NSO) analyzed nurses professional liability claims which had been closed between 2006 and 2010 to identify patterns or trends in liability and to make recommendations to both minimize exposure and promote patient safety (Benton & Flynn 2013). This analysis included 516 liability claims and another 1,127 claims for defense against allegations made to regulatory boards. Finally, a survey was conducted of 1,617 nurses who had experienced a liability claim loss between 2006 and 2010 and a random matched sample of nurses who had never had a claim to identify demographic and workplace factors that affect risk exposure. The analysis was limited to registered nurses (RNs) and licensed practical or vocational nurses (LPN/LVN). Please note that a similar analysis was completed in 2012 for advanced registered nurse practitioners (ARNPs) and can be obtained at their website.
Professional liability claims involving nurses in correctional health care are a small proportion of total closed claims and the average indemnity cost in this field was less than the average for all claims. The table below depicts how nurses’ liability in correctional health compares to other practice specialties in terms of closed claim experience.
|Nursing specialty||% of closed claims||Average paid indemnity|
Claims involving scope of practice, assessment and monitoring had the highest average indemnity payments consistent with the significant effects these aspects of practice have on patient safety. Closed claims regarding nursing care or treatment were more prevalent but had a lower average payout. The work profile survey showed that lower indemnity payments were associated with nurses who reported more continuing education, working in an organization that had a policy for disclosing errors and who were comfortable asking managers for help.
The risk control recommendations made as a result of the analysis are similar to those made by Jacqueline Moore in Chapter Three of the Essentials of Correctional Nursing. The recommendations from both these sources are consolidated here:
1. Make sure your individual practice is consistent with the state nurse practice act and the organization’s policies and procedures.
- Request and review a copy of the nurse practice act from the state regulatory board.
- Review your organization’s policies and procedures regularly.
- If the organization’s policy and procedure differ from the state nurse practice act bring this to the attention of your manager. Until clarified follow the directive which is the most restrictive. In other words, the organization can limit your practice in the work setting but cannot assign responsibilities that are broader than the nurse practice act.
- Know the steps you are to take within your organization if you are given an assignment outside the lawful scope of practice or your personal competence to perform.
- Do not accept assignments that you are not competent to perform.
2. Ensure communication is professional, accurate, respectful, inclusive, complete, appropriate and timely.
- Determine the patient’s primary language or communication preferences and arrange translation or other accommodations to ensure the patient understands and agrees with the plan of care.
- Exchange key information whenever responsibility for the patient is transferred from one caregiver to another or from one setting to another.
- Do not criticize a provider in the presence of a patient or in documentation in the health record.
3. Maintain clinical competencies relevant to the needs of the population served and standards of practice for correctional nursing.
- Attend relevant classes, in-service and continuing education. Maintain copies of certificates or other evidence of attendance.
- Participate in peer review and reflective practice exercises.
- Subscribe to journals, websites and other means to stay up to date with the literature that pertains to correctional nursing such as this blog post and Correctional Nurse.net.
- Join professional organizations such as the American Nurses Association, the International Association of Forensic Nurses, the American Correctional Health Services Association, the Academy of Correctional Health Professionals, and the American Corrections Association.
4. Nurses are in the prime position to prevent harm to the patient and are expected to advocate for the patient’s wellbeing.
- Invoke the chain of command as necessary to focus attention on the patient’s status or when there is a change in condition.
- Ensure timely attention to patient needs and implementation of the plan of care.
- Persist in communication and follow-up regarding the patient until a satisfactory resolution is achieved.
- Address communication issues that deter use of the chain of command including identification of individuals who ignore, bully, retaliate or intimidate when chain of command is accessed.
Kathy Page, a colleague of ours, summed this subject up in a quote from the Essentials of Correctional Nursing “During the years reviewing malpractice cases that took place in correctional settings, most of the litigation was due to nurses not advocating for the patient, resulting in a delay in treatment. This includes nurses being judgmental in their charting (e.g. “malingering, drug seeking”), resulting in lack of access to care. Also, nurses’ failure to follow the provider’s orders for medications and treatments resulted in withholding or lack of care” (page 53).
In publishing the results of this claims analysis, the authors suggest that nurses be inspired to examine their practice to identify the recommendations for change most likely to reduce liability risk using this self-assessment tool developed as part of the full report.
Are these the results you expected? What recommendations do you have to reduce liability for nursing practice in the correctional setting? Please share your thoughts by replying in the comments section of this post.
For more on correctional nursing read our book, the Essentials of Correctional Nursing. Order your copy directly from the publisher. Use promotional code AF1209 for $15 off and free shipping.
Benton, J.H. & Flynn, J. (2013) Identifying and minimizing risk exposures affecting nursing practice to enhance patient safety. Journal of nursing Regulation 3(4):4-9.
Moore, J. (2013) Legal considerations in correctional nursing in Schoenly, L. and Knox, C.M. (eds.) Essentials of Correctional Nursing. New York, NY: Springer Publishing.
Photo credit: © dacasdo – Fotolia.com