ORGANIZATIONAL AND VICARIOUS LIABILITY

DEBBIE HARRISON, RN, JDHEALTHCARE CONSULTING, LLC.(337) [email protected]

ORGANIZATIONAL AND VICARIOUS LIABILITY

Vicarious Liability

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently.

Vicarious Liability, Cont’d

Responsibility for a civil wrong that a supervisor bears when a subordinate or associate has actually committed the act that gives rise to the liability

Example: The owner of a hospice agency may be

vicariously liable for a nurse’s actions or inactions, or their failure to comply with legal or professional standards

Organizational and Vicarious Liability

Organizations may be liable for employees individual failures to comply with legal and ethical responsibilities.

Potential areas of liability: Theft Breach of confidentiality Breach of Standards of Care Financial Abuse Taking advantage or preying on their position

CASE STUDY

ADVANCE for NURSES, Sept. 30, 2009

An elderly female assisted-living facility resident requires a mechanical-transfer device from bed to wheelchair and back. She is maximum assist with bed mobility. She has episodic confusion.

After the evening meal, a certified nursing assistant (CNA) returns the resident to her room. The CNA transfers the resident to the bed by himself using the mechanical-transfer device. The resident is already in the bed when another CNA arrives to aid with turning, positioning and incontinence care.

CASE STUDY, Cont’d

The resident weighs approximately 190 pounds and is unable to assist with turning and positioning. She is in a hospital bed with enabler bars in permanent upright position; there are no side rails. Both CNAs stand on the same side of the bed. They roll the resident over for incontinent care and she falls off the bed onto the floor, pinning her between the wall and the bed, and she cries out in pain.

One CNA notifies the nurse on call and is ordered to call 911. At the hospital, X-rays reveal a fractured cervical spine. The patient is treated conservatively with immobilization. While hospitalized, she becomes febrile with pneumonia. She becomes septic and dies. The assisted-living facility is sued.


Standard of Care

The standard of care is defined by what a prudent professional would do in a similar situation. Facility policies and procedures, professional resources and literature, clinical practice and other sources provide the basis for standard of care. Federal or state regulations, compliance and accreditation organizations do not define standard of care.


In this case, although the CNAs are not considered professionals, the nurse supervisor, who was the only nurse employed at the facility, must ensure their treatment of the resident is consistent with the standard of care. What's more, the nurse's responsibility is not absolved just because she is not in the building; she is vicariously liable for the acts of the subordinate CNAs.


There are a number of standard of care issues in this case. First, the use of the mechanical-transfer device requires two people. Standard of care dictates one person is to stay with the resident or patient to prevent falling or other safety problems while the other manipulates the device. There also was a question about where the resident was positioned in bed, at either edge or in the middle, which would make a difference to fall risk.


Supervision, Training & Competency

If this case were hospital- or nursing home-based with 24/7 licensed staff available, the situation would be different. In settings with licensed nurses on duty around the clock, the chain of supervision is in place. Once report is finished, the oncoming charge nurse assumes the supervisory responsibility. The director of nursing in the nursing home and the nurse manager, nursing supervisor or nurse executive in the hospital, have a supervisory role even though they're not at the bedside.


Part of the responsibility of being a nurse manager is ensuring staff training and competency levels are consistent with the job description and with standard of care. If staff members are not competent, they should not be left unsupervised.

Upon review of the facility's policies and procedures, there was no documentation of training addressing the use of the mechanical-transfer device, turning and positioning related to special circumstances such as residents who are obese, safety issues or falls.


Because this facility had a history of residents

falling, one would have anticipated training concerning falls would have been a high priority. Generic policies and procedures are not adequate to address facility- or resident-specific training for staff. When questioned, the CNAs were unaware of mechanical-transfer device operation expectations and did not understand why their positioning at the bedside was problematic when the fall occurred.


Falls Management & Prevention

Rarely, if ever, will every employee embrace the concepts of their training and execute each perfectly every time. However, oversight of competence and practice are part of the nurse supervisor's responsibility. Of course, the acuity of the clients served in different healthcare settings is not comparable; however, all organizations in the continuum are responsible for the safety of their clients.


Whether an accurate falls assessment was completed or not, in this case, professional nursing judgment would provide a high level of suspicion for this resident to be a fall risk. The intermittent confusion, the need for a mechanical transfer device, incontinence and the level of transfer are often considered to be indicators of fall risk. Although professional nursing supervision was on-site 8 hours a day, there was no fall-specific training for staff. Moreover, there was no competency assessment of new staff upon hire or episodically.


This case was very difficult to defend because of the core issues discussed. Falls and fall-related cases frequently demonstrate a fact pattern, documentation lapses, and policy and procedure voids similar to this case.

The entire continuum of healthcare faces fall risks, and lessons learned from each segment are applicable to the entirety. As a nurse supervisor, you are responsible for the actions of the staff wherever you are. While this vicarious liability may be disconcerting, it is part of the professional nurse supervisor's role.

LAW

L.A. C.C. Art. 2320

Masters and employers are answerable for the damage occasioned by their overseers, in the exercise of the functions in which they are employed.

“in the course of employment”

For an act to be considered within the course of employment it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.

AWARENESS

Vicarious liability promotes the awareness of administrators and supervisors, which can improve efficiency in companies.

Further, administrators and supervisors are in the best position to assess, monitor and impose standards on their employees as needed.

PROTECTING YOUR CLIENTS

PRESENCEBe available and present in your organization (or shift). This demonstrates your availability and authority.

RESPONSIBILITYReward good performance and address poor judgment quickly. Allowing employees actions to go unnoticed will

not benefit anyone

TRAINING

The need to train employees as to…• Mandatory reporting of abuse

▫ Not only to employer, also authorities…▫ Duty to report does not end by telling a manager

• Medical/Nursing Ethics• Confidentiality for professionalism and HIPAA

Employees should know what to look for in any ofthe above cases.

BACKGROUND CHECKS

CHECK CRIMINAL RECORDS

Actually follow up with past employers

There may be evidence in your potential employee’s past to indicate poor judgment or weak (or worse) character.

Take steps to contact previous employers. Their first hand experience with your prospective employee may be invaluable. ASK “ Would you rehire this employee?”

KNOW YOUR EMPLOYEES

As an organization you are trusting the “good will” of your company to individuals. You have a responsibility to your client, employees and company to take steps to ensure they are all in good hands.

Employees deal with sensitive information; and in the case of elders, they deal with vulnerable individuals, you should ensure these employees are the best suited and trained, for the position and responsibility; as well as worthy of your trust and that of our vulnerable elders.

FINALLY

EFFECTIVE SUPERVISION AND MANAGEMENT

are strong tools to assure the best care for your clients and the most favorable outcome for your profession and your organization.

Documents

ORGANIZATIONAL AND VICARIOUS LIABILITY