Ultimate doctor liability: A myth of ignorance or myth of control?

Transcription

1 Collegian (2009) 16, available at Ultimate doctor liability: A myth of ignorance or myth of control? Andrew Cashin, RN, MHN, NP, Dip App Sci, BHSC, GCert PPT, MN, PhD, FACMHN a,, Michael Carey, BA (Hons), MA, PhD, Grad Dip Legal Studies b, Ngaire Watson, RN, BHSc (N), PGDip (MHN), MA (PAnStud), LLB, MRCNA c, Greg Clark, RPN, NP, MHN, BHSc (MHN), MN (AdvPrac), MN (NursPrac), FACMHN d, Claire Newman, RN, Dip MH Nurs e, Cheryl D. Waters, RN, BSci (Hon), PhD b a Southern Cross University school of health and human sciences, Australia b The University of Technology Sydney, Faculty of Nursing, Midwifery and Health, Australia c Barrister 4 St James Hall, 169 Phillip Street, Sydney, Australia d Adolescent Mental Health, Sydney South West Area Mental Health Service, Australia e New South Wales Justice Health, Australia Received 4 September 2008; received in revised form 22 June 2009; accepted 24 June 2009 KEYWORDS Nurse liability; Medical liability; Vicarious liability; Nursing indemnity Summary Ultimate medical doctor responsibility for the care delivered to patients by all professionals is a myth. Legally Lord Denning dismissed the myth in the mid-20th century in England. The assumption that a medical doctor is responsible for the care delivered by nurses has not existed in English and Australian law since that time, and it has been actively refuted. Yet it is a myth that continues to circulate influencing health service, state and federal health policy. For some it is a myth of ignorance and for others it is a means of control. This paper outlines the relevant case law to debunk the myth of ultimate medical doctor control Published by Elsevier Australia (a division of Reed International Books Australia Pty Ltd) on behalf of Royal College of Nursing, Australia. One of the most often repeated justifications for preventing expansion of the healthcare roles of nursing providers is the myth of doctor s ultimate responsibility. Many professional medical groups have acknowledged, paternalistically perhaps, that while nurses may be capable prescribers, the Corresponding author. Tel.: ; fax: address: andrew.cashin@scu.edu.au (A. Cashin). issue is not one of capability, or evidence of this, but the impact on doctors who will be held to account should something go wrong in the nurse initiated care. This claim is substantiated in their eyes by what the authors of this paper are claiming is the myth that medical doctors hold ultimate responsibility for patient care. The myth is alive and well as contextualised through the de-identified case study that follows here. The myth is deconstructed and exposed for what it is through a consideration of the legal principles embedded in liability and case law examples /$ see front matter 2009 Published by Elsevier Australia (a division of Reed International Books Australia Pty Ltd) on behalf of Royal College of Nursing, Australia. doi: /j.colegn

2 126 A. Cashin et al. Misconceptions regarding doctor liability for nursing practices and a lack of understanding of the legal concept of vicarious liability may be the cause of certain barriers to nursing practices (Carryer & Boyd, 2003; Jenkins, 1994). The assumption that doctors are liable for the actions of a nurse is endorsed by the medical profession, the public media and political opinions that often portray and promote the stereotypical role of a nurse as a doctor s handmaiden who has diminished responsibility (Carryer & Boyd, 2003). However, nurses are autonomous practitioners who work within a designated scope of practice, hold full accountability for their practice as an individual practitioner, and are therefore legally liable for their actions. This is reflected in guidelines issued by nursing professional bodies internationally. Advanced nursing roles are increasing internationally with specialist nurses including nurse practitioners (NPs) obtaining authorisation for practices such as diagnosing and prescribing medicines, independent of supervision from the medical profession. In the United States of America (USA) advanced nursing roles have been around for 40 years and throughout this period nurses have obtained increasing scope that has encroached on what has been seen as traditional medical responsibilities (Phillips, 2007). This scope creep has occurred in the context of the development of a large body of research supporting safe and expert practices by nurses in advanced nursing roles (Horrocks, Anderson, & Salisbury, 2002). However, despite the evidence of capability, the medical profession has maintained a belief in its right to oversee NP practices. Whilst in some USA states NPs are recognised as fully autonomous practitioners, in other states NPs are required to practice within a collaborative agreement or under the supervision of a physician. Australia and New Zealand has witnessed the introduction of the NP role over the past 10 years. All Australian Nursing Councils/Boards define a scope of practice in which NP autonomy and their full liability for their own practice is emphasised. Despite meeting rigorous criteria in relation to advanced skills and knowledge NPs in Australia are restricted in their practices by protocols that have potentially led to a cookbook style of nursing in which they are for example, restricted in the choice of medicines that may prescribe (Carryer, Gardner, Dunn, & Gardner, 2007). These protocols are issued by their institution and are often highly influenced by the medical profession, or medical professionals that have the responsibility of reviewing and agreeing to such protocols. NPs in the USA have a similar experience where the level of physician oversight is addressed in laws that vary by state, and govern the degree of formality of collaboration protocols (Burroughs, Dmytrow, & Lewis, 2007). Liability if anything becomes more complex as a result of these protocols as it becomes necessary to consider the relationship, the level of control between the nurse and institution or medical professional involved, and who made the decision. It may be concluded that there is a shared responsibility between the nurse and the institution or physician involved (Burroughs et al., 2007; Carson-Smith & Klein, 2003; Jenkins, 1994). Jenkins (1994) reported from the perspective of USA nurse-midwives that there had been no reported cases in which a physician had been held vicariously liable for the negligence of a nurse-midwife. Even though this was the case in the mid 1990s, and applicable to the advanced role of a nurse-midwife only, the latter part of the decade, and the time since has witnessed a rapid increase of settlements and verdicts in medical malpractice cases, not only physician or institution related but in nursing and NP cases (Burroughs et al., 2007; Carson-Smith & Klein, 2003; Klutz, 2004). It has been argued that this increase coincided with the introduction of Medicare access for NP services in 1997 (Carson-Smith & Klein, 2003). At the same time as the provision of Medicare services increased patient access and therefore potential liability cases, Medicare law in the USA required NPs to collaborate with a physician (Bupert, 2001), resulting in further blurring of the lines of fault. Under Medicare law NPs require supervision by a physician, with the exclusion of diagnostic tests within criteria specific to each state (Bupert, 2001). Whilst there is the presence of a defined relationship between nurse and physician, there is a potential for the physician to be viewed as partly to blame for the practices of the nurse. However, had the NP been practicing outside their scope of practice in the case of malpractice or negligence then they are viewed as accountable for their actions and the collaborating physician is not vicariously liable. Medicare law in the USA would therefore appear to represent an assertion of medical profession control over NPs, rather than a mechanism for physician overall responsibility for patient care. It may be a case of a circulating myth. Carson-Smith and Klein (2003) reported on NP errors leading to litigation in the USA. The authors acknowledged that reported NP malpractice is extremely low in comparison to all nurse and medical malpractice reports. Only 1.7% of all payments reported to the National Practitioner Data Bank accounted for nursing malpractice reports, 4.7% of which concern NPs (Carson-Smith & Klein, 2003). The authors identified that many nursing malpractice cases are brought against the institution and not the individual, resulting in the inability to clearly track the number of nursing malpractice cases. The authors further acknowledged that in the USA the lines of fault may also be blurred by nurse supervisory mechanisms such as physician supervisors and collaborative agreements required by NPs in some states. Low rates of nursing litigation cases have been reported internationally. For example, in New Zealand only 4% of medical misadventure claims involve nurses (Carryer & Boyd, 2003). The following case study is based in NSW. The Civil Liability Act 2002 (CLA) is the statute which for NSW sets out the principals which will be used to determine whether a professional has satisfied the criteria for meeting the standard of care relevant to their practice. The following case study highlights one type of impasse that can occur as a result of a lack of clarity, blurring of fault lines, and the myths that grow in the ensuing murkiness. These areas of murkiness can be exploited to advantage particular groups and disadvantage others. The murkiness has evolved independent of the guiding principles of law. Case study An authorised mental health nurse practitioner working in a NSW metropolitan area health service is in the process of having a Scope of Practice approved. In NSW this document

3 Ultimate medical doctor responsibility 127 is required to be approved by the Chief Executive Officer before a nurse practitioner can use their extended practice responsibilities. The mental health medication committee was not happy with the document as a whole or the formulary. In relation to prescription of atypical antipsychotics it was stated in the committee s response that, The commencement of any new type of medication should be done in conjunction with a specialist psychiatrist. When asked for clarification of this, a lengthy response, based on risk management issues was received. When asked to clarify the issues of risk management, accountability and liability the committee contact person responded as follows: The committee felt a clear line of communication to a senior practitioner is a necessity. As a nurse practitioner, the committee felt the only person within the team who should provide clinical support and direction should be a Psychiatrist. This was decided as a risk management process. With regard to prescribing, if something ever occurs to a registrar or medical officer, the process of accountability falls to the senior clinician, who is usually a specialist/consultant of the Area Health Service. This line of accountability for the Area Health Service also needs to be acknowledged and listed in your Scope of Practice. This is not to say that something will happen regarding prescriptions by a Nurse Practitioner, but as a risk management process, looking at a possible outcome of a person having a severe reaction to medication prescribed by a Nurse Practitioner, this line of accountability, referral process and peer review is required within your Scope of Practice document. It is not to limit your autonomy, but to ensure that collaboration with your colleagues occurs and is regular. Following advice from a nurse practitioner colleague and the Principal Advisor for Nurse Practitioners at NSW Health the nurse practitioner pointed out that nurse practitioners are solely responsible, accountable and liable for their practice and that there is no legal precedent for a doctor being responsible, accountable or liable for a nurse practitioner s decisions. Advice, previously sought in 2000 from NSW Health Legal Branch, reinforced this view. The response to this reiterated the risk management agenda. Further discussion failed to resolve this impasse and it has been referred to senior nursing management for further discussion. Nurse practitioners and legal liability The case scenario, which features in this paper, involves issues that reflect the experience of many nurse practitioners in NSW. Moreover, these same issues have arisen in jurisdictions elsewhere (Carryer & Boyd, 2003). In light of the prevalence of the idea that medical practitioners bear legal liability for nurse practitioners activity, it is useful to review the relevant legal provisions regarding liability in order to secure some clarification of this matter, and to alleviate anxiety and uncertainty. A necessary condition for a practitioner being authorised as a Nurse Practitioner is that s/he be a Registered Nurse. The history of legal developments regarding registered nurses and liability is instructive. Earlier in the twentieth century, English courts showed no inclination to find hospitals liable for the actions of those working within them principally on the grounds that the hospitals were [then] charitable institutions which could ill afford damages payment (Kerridge, Lowe, & McPhee, 2005, p. 293). In this perspective, physicians alone were liable; nurses, as employees of the hospital, were viewed as agents merely of the physicians. Around the mid-20th century there was a discernible change in the courts demeanour. In Cassidy v Ministry of Health ([1951] 2 KB 343, cited in Kerridge et al., 2005, p. 293), Lord Denning stated that nurses were servants of the hospital even though under the direction of surgeons. His reason was that the hospital had a significant degree of control over nurses as their employer, much more than the surgeons had, and that the hospital s relation to its employee nurses was to be viewed as that of master to servant a traditional legal mode of referring to the employer employee relation. While this case concerned surgeons and operating theatre nurses, Denning LJ s judgement has been understood to apply to all nurses who are employees of a hospital. For nursing, the significance of the finding that a hospital is [vicariously] liable for the negligent acts of its employees was that, by implication, nurses were independently accountable for their actions (Kerridge et al., 2005, p. 293). Given that negligent actions are ones which result in harm to patients, independent accountability for their actions meant that nurses had direct obligations to their patients, unmediated by physicians. English cases have persuasive authority for Australian courts, though they are not binding. Nonetheless, Australian courts have endorsed the English findings. In Albrighton v Royal Prince Alfred Hospital ([1980] 2 NSWLR 542), a case ultimately determined on appeal, the judges rejected both the claim that a hospital s duty of care is satisfied by its appointment of capable medical staff, and the claim that a hospital is not liable for the negligence of its medical staff unless there is proof of significant control over the manner of their work (cited in Staunton & Chiarella, 2008, p. 96). This ruling, in effect, confirmed Denning LJ s judgement as holding for NSW law. Since an employer can be vicariously liable for the negligent actions of nurse employees, it follows that nurses have a duty of care to their patients. The common law has held that fulfilment of this duty required satisfying the objective standard of care: performing one s tasks at the level of the ordinary reasonable skilled nurse. More recently in NSW, following the tort law reforms based on the Ipp Report recommendations, section 50 of the Civil Liability Act 2002 (NSW) specifies that the standard of care for professionals generally is action in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Since statute law specific to some matter prevails over any common law principles applying to the same matter, this statutory provision is now the criterion for determining whether a professional s conduct is of the appropriate standard. In NSW the Civil Liability Act 2002 (CLA) codifies the principles of Rogers v Whitaker (1992).

4 128 A. Cashin et al.... the standard of care to be observed by the person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. Peer professional opinion can be embodied in practice and procedure standards specific to particular areas of nursing. An instructive example here is the ACORN practice standard governing the work of operating theatre nurses. In Langley and Warren v Glandore Pty Ltd ([1997] QCA 342), Doctors Langley and Warren appealed a court decision which found them solely negligent in regard to a sponge having been left in the abdomen of a patient after surgery. The Court of Appeal found in their favour, and ruled that the theatre nurses had also been negligent in the matter. This ruling was based, inter alia, on the provisions laid down in the ACORN standard (cited in Kerridge et al., 2005; Staunton & Chiarella, 2008, pp ). Of significance here is that the Court s ruling not only re-affirmed that nurses were independently accountable for their actions, but also showed that the relevant criterion for negligence falling below the standard of care was determined by principles and procedures laid down by nursing itself. This case makes clear that Australian law generally would affirm: that nurses are accountable for their professional conduct, that this accountability is governed by standards internal to nursing and independent of medical or other standards, that employers are vicariously liable for negligent acts of nurse employees, and that no other agents or parties are so liable for such acts. The discussion to this point has been confined to a review of liability for negligence in the case of registered nurses, and has shown that there is no legal basis for a claim that medical practitioners are liable for nursing negligence in the contexts considered. Therefore, if there is any validity to the claim that medical practitioners are, or might be, liable for the negligence of nurse practitioners, the validity would have to be based in some aspect of this advanced practice role. To facilitate the introduction of nurse practitioners, amendments to current legislation were required. Section 19A of the Nurses and Midwives Act 1991 (NSW) empowers the Nurses and Midwives Board (NMB) to authorise suitably qualified and experienced registered nurses as nurse practitioners. Section 78A of the Act confers authority on the Director-General to approve guidelines relating to the functions of nurse/midwife practitioners. The functions include possession, use, supply or prescription of poisons or restricted substances [s 78A(2)], of drugs of addiction [s 78A(2A)], and other such matters relating to the functions of nurse/midwife practitioners as the Director-General considers appropriate [s 78A(3)]. The Poisons and Therapeutic Goods Act 1966 (NSW) has been amended [s 17A] to reflect the provisions above. More detailed elaboration of these legal provisions is found in the NSW Health Policy Directive Policy for Nurse/Midwife Practitioners in NSW (PD ) (NSW Health, 2005). This directive makes clear the principal practice differences between the registered nurse role and the nurse practitioner role. Specifically, nurse practitioners are authorised to prescribe drugs and to order diagnostic tests. However, allowable practice within these areas is to be defined, for each practitioner, by their practice guidelines, which indicate their authorised scope, or domain(s), of practice, the range of diagnostic tests appropriate to that domain, and a formulary of drugs relevant to such practice. Therefore, provisions for prescribing by NPs in NSW are already in place in legislation. This is significant as all that remains to enable NPs access to the Medical Benefits Schedule (MBS) and Pharmaceutical Benefits Scheme (PBS) are amendments to Commonwealth legislation. The National Health Act 1953 and the Health Insurance Act 1973 confer power on the Federal Government to create the necessary subordinate legislation to implement the Acts. These Acts would need amendments to provide NP s access to the MBS and PBS. As has been discussed above, there is nothing in the law impeding this so that the explanation for the difficulty being experienced in accessing MBS and PBS cannot be found in a straightforward reading of the law and policy. The following points of legal significance can be noted. First, the directive states that the scope of practice is to be grounded in the guiding principles of the nationally endorsed nursing scope of practice (NSW Health, 2005, section 7.1). While this document is yet to be finalised, the clear implication is that nursing knowledge, as well as demonstrated safe and effective nursing practice at advanced levels, provide the definitive basis for practice guidelines (NSW Health, 2005, sections 1, 2, 7.1). There is no implication that external and independent disciplinary perspectives [e.g., medical] have any role here. Second, there are procedural conditions to be satisfied before practice guidelines can be approved. In NSW, authority to approve has been delegated by the Director-General to the Chief Executive of each Area Health Service. The relevant conditions include that the drug formulary be certified as clinically appropriate and consistent with local policy (NSW Health, 2005, section 6), that the guidelines are evidence-based and in accordance with local AHS policy, and that the guidelines are appropriate to the functions to be undertaken by the practitioner (NSW Health, 2005, section 7). Satisfaction of these conditions is quite independent of any particular clinical decision and action undertaken by a practitioner operating within the guidelines. In other words, that the guidelines need independent approval does not mean that decision and action taken within the scope of the guidelines also need approval by external and independent [e.g., medical] parties. Third, even where the directive states [in relation to the ordering of diagnostic tests] that consultation with a Medical Practitioner should occur to discuss appropriate management or referral if required, and that consultation with pathology and medical imaging staff should occur as appropriate (NSW Health, 2005, section 5), it is clear that these directions give expression to the more general nature of nurse practitioner work as characterised by...a high level of clinical decision making expertise but in collaboration with other health professionals as part of a multi-disciplinary team (NSW Health, 2005, section 1). There is no implication that anything other than collaboration, discretionary or mandated, is involved; and certainly no suggestion that external or independent approval of a nurse practitioner s particular judgement or action is needed. This review of the legally relevant differences between the registered nurse role and the nurse practitioner role

5 Ultimate medical doctor responsibility 129 shows that there is no basis in these differences for any claim that medical practitioners have legal liability for nurse practitioner decisions and actions. Legal liability in the event of harm to patients or clients is essentially the same for registered nurses and nurse practitioners: it depends mainly on the employment status of the practitioner, and has no relation to any involvement by medical practitioners. The NMB s information paper Being a Nurse Practitioner in New South Wales (NSW Nurses and Midwives Board, 2007) advises that where nurse practitioners are employees, their employer will indemnify them under the vicarious liability provisions. However, where a nurse practitioner is either self-employed or operating as an independent contractor, they are advised to take out personal professional indemnity coverage. In the event of an adverse outcome professional indemnity insurance provides protection for the nurse and the client. Thus, in the event of negligent action by a nurse practitioner, they are either covered through the employer s vicarious liability or personally and independently liable. There is no provision of, or option for, medical practitioner liability for nurse practitioner negligence. This brief review has found that there is no basis for a valid claim that medical practitioners might be liable for the actions of nurse practitioners. Given the apparent persistence of this view, however, the explanation of its persistence must lie elsewhere. The argument that a medical practitioner could become liable for the actions of a Nurse Practitioner prescribing medication is therefore not supported. When the necessary legislative provisions are in place, NPs will become legally authorised to prescribe and legally responsible for their actions. Nurses have always been liable at law (via statute) for any negligent action on their part. One only need review cases of nurses brought before nursing tribunals to see nurses being held accountable for their errors associated with medications. Underlying the issue of NP access to the Pharmaceutical Benefits Scheme and Medicare Benefits Scheme (MBS) is that NPs could eventually move out of the hospital system into private practice and become a cost-effective source of high quality health care in a diverse range of communities including rural and regional area currently lacking adequate health care services. Conclusion Nurses, as employees, have enjoyed the benefits of vicarious liability. As independent practitioners they will require professional indemnity insurance. This should be mandatory. This is not only for the protection of the nurse but also clients. With the ability to prescribe and make referrals comes increased risk. Wrong prescriptions and failure to refer become potential negligent actions to which nurses have not previously been exposed. When errors occur the resulting damage caused must be compensated. Only an insurer can carry this magnitude of risk. It is clear from the legal principles of liability and how they have been operationalised in Australia that ultimate medical doctor responsibility is a myth. The origins of the myth are circular in nature. Doctors refer to their almost sole legal privilege to access the MBS as evidence of this. This began in the health insurance act as it was based on the rituals of the time when only the medical profession had scope of practice to allow them the privilege of admission and prescription. The principles on which such an act was constructed 35 years ago are no longer current and cannot be used as evidence that the claim is axiomatic. The myth is being wielded now by some as a weapon of control in the interest of power: for others it is merely an act of ignorance which this paper hopes to ameliorate. References Bupert, C. (2001). Avoiding medicare fraud part 2. 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