Wound care specialist has legal concerns when asked about clinical issues ‘on the fly’

wound care specialist

A reader who is the wound care specialist at her facility submitted a question about being approached by wound care clinicians regarding patient care issues when she is in the hallway, at lunch or is leaving the facility for the day.

wound care

By Nancy J. Brent, MS, JD, RN

She wonders how to handle these situations since she knows her “duty” as a wound care specialist starts when clinicians seek a consultation.

She is right to be concerned about evaluating a patient’s wound care at times when she cannot focus on the case.

In a 2013 study analyzing five years of medical malpractice cases, 7,149 out of 23,000 medical claims and lawsuits involved communication failures. Inpatient settings accounted for 44% of the cases, and 9% of the cases involved nurses/nursing.

Communicating “on the fly” can lead to allegations against the wound care specialist if her response results in injury to or death of the patient. The allegations would be based on professional nursing negligence.

What is negligence?

Negligence is when an individual does not do what another ordinary, prudent and reasonable person would do under the same or similar circumstances and in the same or similar community. In other words, negligence occurs when the individual’s conduct falls below the standard of care in the situation.

As an example, if you were to drive 60 mph in a 30-mph zone and hit a pedestrian who sustained an injury, that pedestrian would file a suit against you alleging negligence.

The pedestrian’s allegations against you would be that no ordinary individual who was prudent and reasonable would drive that fast in a 30-mph zone.

In addition, the pedestrian (plaintiff) also would have to plead and prove all four required elements:

  1. A duty existed between you and the pedestrian (to drive at the designated speed limit).
  2. You breached your duty.
  3. Your breach of duty legally caused injury to the pedestrian (legal cause/proximate cause).
  4. The injuries sustained are able to be compensated for and are recognized by law.

You might try to defend against these allegations in any number of ways. One way is to truthfully allege the pedestrian was crossing the street when the walk sign was not present.

A jury would hear testimony and other evidence and then make a determination of who was negligent.

An important principle in any negligence case is that everyone is responsible for their own conduct and their own negligence. You cannot shift this obligation to another by saying, for example, that your passenger told you to go faster.

What is professional nursing negligence?

Professional nursing negligence uses the same principles as negligence discussed above, but the law applies them to professional nursing.

So, using the question submitted, if you are alleged to be professionally negligent, your standard of care would be what an ordinary, reasonable and prudent wound care specialist would do in the same or similar circumstances in the same or similar community.

The four essential elements would need to be proved by the patient (plaintiff) as well. By the way, in a professional negligence suit, the most difficult element to meet is if, in fact, the alleged injury was due to the breach of your duty in the circumstances.

How to handle on-the-fly consultations

These potential consultations lend themselves to a quick, random and possibly harried response by the wound care specialist. Because of that both parties quickly stop them when the situations arise.

The best way to deal with unplanned consultations is to send out a memo or email to all clinician colleagues and set parameters for consultations.

Explain the reason for the parameters. Indicate the care and safety of the patient is of primary concern and you are required to conduct a careful review of the clinical problem before you offer any advice.

Other content can include your hours of availability, after-hours contact information and availability, emergency situations and any other details you require.

Once these parameters are set, it is important that you also abide by them.

When consultations are done as you require in your memo, keep in mind the following as well:

  • Take detailed notes concerning the consultation, whether by phone, in your office or in the clinical setting.
  • Notes should include time, place, with whom you consulted, patient name and any recommendations you made.
  • Follow up after the consultation to determine if your recommendations were followed and the patient improved, or if new treatment must be initiated.
  • Be certain any documentation in the patient’s chart accurately reflects your consultation notes.
  • Adhere to your facility’s policies and procedures governing wound care.
  • Stay current on wound care treatments and keep your certifications up-to-date.

Take one of our wound care education courses to further your education today.

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Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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