When pursuing any substantial medical malpractice litigation plaintiff’s counsel will always look for a way to include a hospital or other healthcare entity as a defendant. Hospital organizations are viewed as having a “deep pocket” and also provide a less sympathetic target than individual practitioners. In crafting a claim, plaintiff’s counsel will look for hospital policies or protocols that were “violated” to establish negligence. Then plaintiff will argue, using the “reptile” strategy, that these “rules” were put in place to protect the safety of all patients and that any violation of that “rule” is dangerous and represents negligence. Nurses and hospital managers are susceptible to these arguments and need to be prepared to deal with them.
Negligence is generally defined as doing something that a reasonable practitioner would not do, or not doing something a reasonable practitioner would do under the same or similar circumstances. Testimony from expert witnesses is almost always required to establish whether there is negligence. An “expert” is someone who is familiar with the area of practice and explains what the “standard of care” is for the conduct in question. In the context of litigation, “standard of care” simply means what a reasonable practitioner would do.
Unfortunately, some hospital policies contain the term “standard of care” in the title or in the body of the policy. Many nurses and other practitioners think of hospital policies as establishing the “standard of care”, but that is not necessarily the case in the litigation context. While some policies or protocol provisions may be so critical that failure to comply with them constitutes negligence, many others are not. Typical examples of policy provision violations that may not represent negligence include deficiencies in charting and assessment. In many cases, failure to strictly comply with provisions related to these functions may be reasonable given the clinical context.
It is generally accepted, as a matter of law, that hospital policies do not, by themselves, establish the applicable standard of care in each case. Examples include Tracz ex rel Tracz v. Charter Centennial Peaks Behavioral Health Systems, Inc., 9 P.3d 1168, 1173-74 (Colo. App. 2000); Wood v. Rowland, 41 Colo. App. 498, 502 (1979); McCombs v. Children’s Medical Center of Dallas, 1 S.W. 3rd 256 (Texas 1999); Green v. Box Butte General Hospital, 284 Neb 243 (Nebraska, 2012); Darling v. Charleston Community Memorial Hospital, 33 Ill. 2nd 326 (Illinois 1964); Flatt v. Claiborne County Hosp., 2010 WL 1404389 (Tenn. 2019).
Hospital policies certainly can be considered as part of the evidence related to the expected conduct of a nurse or other practitioner. But a violation of a provision of a policy, alone, does not establish negligence. Everyone understands that if you violate a traffic rule, such as a speed limit, and an accident occurs, such a violation establishes a presumption of fault and no further evidence is needed. It is then up to the defendant to try to rebut that presumption. However, there is no such legal presumption when it comes to hospital policies.
Hospital personnel need to be educated about this when preparing for testimony in a deposition or at trial. I have been told by nursing experts and managers that a retrospective review of a hospital chart almost always reveals charting “deficiencies.” These often relate to the timing and documentation of assessments and related patient data. Litigation, of course, represents the most intense retrospective review of a medical record that can be imagined.
In a recent trial, the nursing staff in an emergency department was accused of negligence for not conducting their own neurological assessment of a patient as required by hospital policy in a case where the ED physician saw the patient at the same time as the nurse and documented a thorough neurological assessment. The plaintiff’s expert testified that the policy still required a focused physical assessment by the nurse, and that she was negligent for violating that policy. He further argued that the nursing assessment could have picked up a neurological deficit the doctor did not appreciate and that this might have led to a different outcome. The nurse testified that it was unnecessary to duplicate the exam the doctor had just done, or to duplicate the doctor’s charting, as neither would serve the needs of the patient. Our nursing expert agreed. (As did the jury.)
The fact is that when there is a policy “violation” there can be reasonable clinical explanation for that, and this should be the focus of the defense. This is made more difficult, however, when the policies are titled as “standards of care”, or when the policies are not worded to make it clear that they represent guidelines to strive for rather than rules. In addition to causing the practitioner to feel that they did something wrong, this language will also be used by plaintiff’s counsel to argue that any such “rule violation” constitutes negligence. “Standard of care” language can also impact a juror’s response to this evidence. If it looks like a “rule” they may agree it should be treated as a rule, despite the nursing testimony.
The following are my suggestions based on many years of practice in this area:
Prior to their deposition, practitioners should be educated that a deviation from a policy provision does not necessarily mean they were negligent. Practitioners should feel free to support their care and explain why their conduct was appropriate and within the standard of care, even if it deviated from a hospital policy. Most practitioners will embrace the idea that they are reasonable and careful. Then they simply need to put themselves back in that situation and explain why their action or inaction made sense and did not put the patient at risk.
Hospitals and other healthcare entities should be sure that their policies accurately represent the clinical practice at the facility, rather than simply pulling from a resource, or setting an idealized standard.
The use of the term “standard of care” in the title of the policy or within the policy itself should be avoided since it implies, in the context of litigation, that any failure to comply is a “violation” and an act of negligence.
Of course, there are some protocols for which strict compliance is mandatory since these protocols often involve direct patient care. However, where appropriate, policies should be described as guidelines, not the standard of care. This can be set out in a simple introductory statement such as: “While this policy represents expectations and guidelines for the care of our patients, it is also understood that patient needs and clinical circumstances will vary, and that strict compliance will not always be necessary or practical.”