The short answer to whether nurses should be their patient's advocate when it comes to a doctor's error is yes, if the nurse knows or should know that the physician has made a mistake and the error is likely to cause an injury to a patient.
A recent case in Mississippi addressed this issue. A family sued a hospital and several nurses for negligence, breach of the standard of care, and failure to supervise, which led to their child suffering brain damage. There are two prongs to the case. One involves failed attempts to deliver a baby by vacuum extraction, and the other involves failure to order a medication before transferring the newborn to another hospital.
Failed Vacuum Extraction
Here are the facts of the case:
A physician failed to perform a cesarean section in time to prevent brain injury to a newborn. The physician attempted vacuum extraction twice and, by her own admission, lost track of time. The instructions for the vacuum device say to limit vacuum attempts to 20 minutes. After that, some other technique should be implemented, such as delivery by C-section.
The physician attempted vacuum extraction for 54 minutes. Nurses assisting the physician knew (or should have known) about the 20-minute limit but did not alert the physician when 20 minutes had elapsed. The physician testified that if the nurses alerted her at 20 minutes, she would have moved on to C-section.
The parents sued and the hospital moved for summary judgment, which means the case could end in the parents' favor without a trial. The judge declined the request and the case can move forward to trial.
The reason for the judge's decision?
In Mississippi, the elements of malpractice are:
The existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk for injury;
A failure to conform to the required standard; and
An injury to the plaintiff was proximately caused by the breach of such duty by the defendant.
These elements are essentially the same in other states.
The judge's decision hinged on whether the nurses' failure to call on the physician to expedite delivery was a breach of the nursing standard of care and whether the nurses' failure to prompt the physician to move on to C-section caused the patient's injuries.
Attorneys for the defendant, the hospital, argued that even if the nurses had advocated for a change in the treatment, the physician wouldn't necessarily have changed course.
An expert witness for the parents, the plaintiff in the case, testified that the failure of the nurses to speak up and alert the physician of the need to expedite delivery after the second failed vacuum attempt was a breach in their duty to advocate for the neonate. In addition, a hospital policy called for nurses to track time on the vacuum device.
Another expert also testified that if the physician did not expedite delivery, the nursing staff should have gone up the hospital's chain of command to protect the safety of the patient.
The judge found it reasonable to infer that the nurses knew or should have known about the time limit for the vacuum procedure and that the physician would have listened to the nurses and changed course if the nurses had told her that the time was up. The judge decided that the nurses' failure to speak up or to use the chain of command if the physician did not listen was a contributing cause of the neonate's brain damage.
No Order for Phenobarbital
As part of the same case, the newborn's parents sued the hospital and nurses for malpractice because the physician in charge of transporting the neonate to another hospital didn't order phenobarbital for the neonate's seizures. The plaintiffs argued that the nurses should have prompted the physician to order the medication.
The physician stated that she was taking her instructions from another doctor at the receiving hospital. Therefore, the hospital argued, even if the nurses had suggested phenobarbital, the physician probably wouldn't have ordered it.
In this instance, the judge said the plaintiff did not prove a causal relationship between the nurses' lack of action and the patient's injury. The court granted the defendants summary judgment on that issue with this part of the case decided in the hospital's favor without a trial.
The case report doesn't discuss whether a nurse is expected to know that a neonate in that situation would need phenobarbital. Although nurses are expected to be familiar with the medications appropriate for use in their area of patient care, nurses cannot prescribe unless they are advanced practice nurses. Therefore, one could argue that the physician in this case holds all liability for any decision on prescribing. At any rate, whether there was a breach of the standard of care by the nurses was not addressed in this situation. The case hinged simply on whether the physician would have taken the nurses' suggestion.
What Can Nurses Learn From This Case?
A nurse who knows or has good reason to believe that a physician is making a mistake should speak up promptly. Nurses usually aren't responsible for supervising physicians. But when there is a hospital policy directing nurses to take a specific action regarding a medical treatment — in this case, tracking the duration of vacuum attempts — then it's clear that nurses have joint responsibility with physicians.
A nurse isn't always going to be able to predict whether a physician's error is going to harm a patient. And nurses never know whether a physician is going to take a nurse's suggestion. However, the default response for nurses should be: When you see an error, speak up, promptly. If the physician doesn't take your suggestion, discuss the matter with a supervisor.
Carolyn Buppert (www.buppert.com) is an attorney and former nurse practitioner who focuses on the legal issues affecting nurse practitioners.
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Image 1: Carolyn Buppert
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Cite this: Do Nurses Have a Legal Responsibility to Correct a Doctor's Mistake? - Medscape - Nov 04, 2021.