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Reducing the Risk of Liability for Nurses

Reducing the Risk of Liability for Nurses

The health industry of the U.S. experiences numerous problems that are associated with the lack of financial resources. Among those, the presence of a considerable number of cases that involve patients filing lawsuits against nurses and physicians as a result of malpractice is one of the most significant issues, and the risk of its emergence is quite high due to the inconsistent quality of care. There are numerous ways of its reduction, but only several of them can be considered efficient enough to be applied in medical practice. Specifically, the mandatory documentation of the procedures that are performed in the course of treatment could reduce the risk of liability. However, this solution may be perceived as controversial by numerous patients as it potentially undermines their safety. This practice may also impose an additional burden upon healthcare professionals. Therefore, it is necessary to review the situation in the health industry of the U.S. from different points of view and identify whether the proposed method of reduction of the risk of liability is feasible and, most importantly, legal in contemporary conditions.


The safety of patients is the cornerstone of medical practice in any country. Despite the private nature of its health system, as well as the absence of any mentions of it in the Constitution, the U.S. also prioritizes this aspect of the provision of care (Cohen, Hoffman, & Sage, 2017). This statement is supported by numerous federal laws that ensure the protection of the discussed social group. The most significant of those laws is the Patient Protection and Affordable Care Act of 2010, which focuses on comprehensive improvement of the quality of services that are provided by healthcare facilities throughout the country. Additionally, this act provides a legal basis for the establishment of an independent research institute, the aim of which is to analyze patient outcomes in the industry and regularly evaluate them (Cohen et al., 2017). Another law, the Patient Safety Act of 2005, defines the norms and principles of handling sensitive and confidential data, such as information on diagnostic procedures, the course of treatment, and so on, by the personnel of healthcare facilities. For example, it established that healthcare professionals have to improve the quality and safety of care continuously while also understanding the potential sources of danger and sharing the information procured in the course of medical practice with other healthcare specialists (Cohen et al., 2017). Therefore, it is possible to state that the laws of the U.S. present significant requirements for the professionalism of the personnel of healthcare facilities while also protecting the interests of the patients.

At the same time, despite the seemingly comprehensive nature of legal protection, the number of cases of medical errors in the health industry of the U.S., as well as subsequent lawsuits filed by those affected by it, is quite high. Specifically, the studies demonstrate that only in the field of cosmetic breast surgery, their number has exceeded 500 (Paik, Mady, Sood, Eloy, & Lee, 2014). By taking into account the fact that this sector of surgical practice is relatively small, it is possible to assume that for the rest of the industry, the situation is also far from ideal. Under the conditions described above, the financial burden on the health industry of the U.S. will continue to increase with each passing year, namely due to the strain on the personnel of clinics and hospitals, as well as insufficient budgets of healthcare organizations. Specifically, the American Nurses Association provides its members with liability insurance that somewhat mitigates the negative effect of the lawsuits filed by the patients (Niles, 2018). However, it is necessary to remember that its resources are finite, meaning that it is not capable of providing assistance to all nurses that require it, and ultimately, it is incapable of addressing the reviewed problem in a comprehensive way.

As a result, the implementation of the measures related to mandatory documentation of all the procedures that take place in the course of treatment can be perceived as a necessity. The feasibility of this approach is related to the fact that a wide array of mistakes and cases of malpractice resulting in the success of the plaintiffs in the health industry of the U.S. occurs as a result of improper and erroneous approaches to data management. Specifically, the information, such as the notes made by nurses and physicians, is often lost, and thus it does not match the one stored in the database of a hospital or is misunderstood due to the fact that it is not documented in a proper way (Niles, 2018). In other words, the introduction of the described measure will allow for avoiding numerous mistakes in the course of professional medical practice, thus lowering the risk of liability.

Moreover, documentation can be used as important evidence that may be used to prove the innocence of a healthcare professional. This factor is particularly important when considering that numerous cases associated with liability in the health industry are related to the negligence of the principle of informed consent. For example, according to the research conducted in the field of bariatric surgery, which is based on procedures aimed at the invasive reduction of weight of a patient that suffers from obesity, the liability is often caused by inappropriate patient selection prior to operation (Choudhry et al., 2016). Specifically, the study claims that in many cases, bariatric procedures have a permanent effect on the digestive tract of an individual, and they are likely to affect people’s lifestyles and the overall state of their health. In turn, in case the patient is selected inappropriately and, most importantly, does not possess knowledge about the consequences of the treatment, the risk of failure will be quite significant (Choudhry et al., 2016). As a result, the National Institutes of Health (NIH) has developed a set of consensus guidelines that contain the indications for surgical procedures of such nature, as well as mandate the evaluation conducted by a multidisciplinary team of professionals with the purpose of assessment of physical and mental fitness of the patient. Finally, it is stated that documented informed consent that explains the procedure and its outcomes and risks is necessary to mitigate litigation (Choudhry et al., 2016). Thus, the importance of documented information for the health industry cannot be overestimated.

Finally, the mandatory documentation of the process of treatment will provide more material that can be used in the course of evidence-based practice. It is necessary to note that the latter implies a fair (unbiased), explicit (clear), and reasonable (conscious) use of gathered information to form the basis for making decisions about the provision of medical care to a particular patient (Niles, 2018). Moreover, it is important to combine the individual professionalism of a nurse or physician, which refers to the qualifications and knowledge acquired over time in clinical practice, and the best available external evidence obtained in the course of a systematic study. The mentioned professionalism involves a comprehensive and timely diagnosis of the disorder, as well as an attentive and sympathetic attitude toward the problems, rights, and preferences of the patient. However, it must be supplemented by the best and most reliable evidence or information needed to make a correct choice among many different variants of diagnostic and treatment methods and determine the most effective and safe ones (Niles, 2018). As a result, it is possible to state that the described initiative is in line with the provisions of the Patient Protection and Affordable Care Act of 2010. As it was mentioned before, it establishes healthcare professionals can gather and analyze information on patient outcomes with the purpose of the continuous improvement of the provided care (Cohen et al., 2017). In other words, the proposed measure is not innately illegal. All these facts contribute to the feasibility of the introduction of practices related to mandatory documentation of the process of treatment as one of the primary means of reduction of risks associated with liability in the field of healthcare.

At the same time, the described approach has certain shortcomings that may limit its applicability to the practice, meaning that it may not work as planned. The most significant of them is related to the fact that each of the states has a separate set of healthcare laws that can vary considerably. For example, only in terms of the authority of nurses regarding the prescription of drugs, the conduction of diagnostic procedures, and so on, they can be divided into three large groups. In some cases, they can perform a wide array of procedures while not requiring the presence of the physician, but quite often, constant supervision of the latter is needed (Cohen et al., 2017). Thus, it is possible to assume that similar differences will be present in the system of documentation of the process of treatment. For example, in case a nurse does not have the authority to enter the gathered information into the database of a clinic or a hospital, but rather has to transfer it to a physician, the risk of distortion of data is likely to increase. In turn, the number of cases of malpractice that are associated with the mismanagement of information will also grow, meaning that patients will continue to file lawsuits against healthcare professionals. All these facts make it possible to assume that the introduction of this measure at the national scale is likely to become a difficult and time-consuming process, and the effect it will have on the health industry may be quite inconsistent.

Additionally, the current legislation of the Patient Safety Act of 2005 in the field of healthcare may present certain obstacles to the implementation of the described initiative. Specifically, it was introduced as a way of balancing the reporting of information related to the safety of patients and the protection of the latter’s rights. As a result, it may be problematic to identify the information that is suitable for documentation as some of the facts, such as results of the diagnostic procedures or medical history, maybe a potential threat to the dignity of a patient (Cohen et al., 2017). In turn, healthcare professionals will have to make decisions related to the gathering of data directly during the treatment, which may impair their ability to assess the situation objectively and lead to mistakes that can have a considerable effect on the health and lifestyle of the patients.

Moreover, despite the fact that the Patient Safety Act of 2005 encourages the anonymous and voluntary exchange of safety information between physicians and healthcare facilities, it does not mandate them to participate in this activity (Cohen et al., 2017). Thus, it is possible to assume that in order for the initiative focused on mandatory documentation to be successful, it has to be governed by a separate law. However, the introduction and adoption of the latter can be a particularly lengthy process, meaning that in the short- and middle-term perspective, the risk of liability is unlikely to be lowered significantly.

Finally, the mandatory documentation will present additional requirements for the professional skills of nurses and physicians. They have to be familiar with the rules and principles of data management, know the provisions of laws and regulations related to patient safety and possess analytical abilities to identify information that has to be documented firsthand. All of those are required for quick and efficient data management in the clinical setting which is often associated with considerable levels of stress and uneven workload (Niles, 2018). The development of the listed skills may require the introduction of changes to the current educational programs of the facilities involved in the training of healthcare professionals. In turn, this reform will result in additional spending on healthcare, increasing the strain on the budget even more.


The liability in the field of healthcare is a significant problem as it increases the burden on the health system of the country as a whole and the personnel of the clinics and hospitals in particular. The mandatory documentation of the process of treatment can be perceived as a viable approach to solving this issue as it creates the basis for improvement of the quality of care in the long-term perspective, is in line with the existing laws and regulations, namely the Patient Protection and Affordable Care Act of 2010, and has the potential to reduce the risk of litigation with a high degree of efficiency. However, the process of implementation of this measure is likely to be quite complex due to the high variability of the local healthcare laws, the provisions of the Patient Safety Act of 2005, which may impose certain limitations on the data-gathering process, and the need for the introduction of changes to the programs of training of health professionals. However, by taking into account the fact that the risk of liability remains quite high, with even such specialized fields of activity as cosmetic surgery seeing hundreds of lawsuits being filed by the patients, it is possible to state that the optimal solution to this problem must be presented as quickly as possible.


By taking into account the information provided above, including the cases of malpractice that have resulted in lawsuits and legislation that imposes certain limitations on the activities associated with the documentation of the process of treatment, it is possible to make the following recommendations on the implementation of this initiative. First of all, it is necessary to create guidelines that will identify the types of data that can be gathered and documented by healthcare specialists. They must be compiled in accordance with the existing legislation to ensure that the patient’s rights remain protected under any conditions. In turn, by possessing this knowledge, nurses and physicians will not have to define and assess the appropriateness of information they have to document on their own, meaning that the effectiveness of their work will not be affected.

Next, it is necessary to establish comprehensive control over data flows within healthcare facilities and between them. This measure will allow avoiding the scenarios associated with the loss of important information, such as notes made by nurses or physicians, and thus it will result in a reduction of lawsuits filed by clients whose personal safety was jeopardized due to the negligence of the personnel of the clinic. Moreover, it will have a positive effect on patient outcomes as many cases of malpractice are associated with the erroneous approach to data management in clinical settings, including mismatches, poor communication between the members of a multidisciplinary team, and others.

Finally, in the long-term perspective, it is possible to recommend utilizing knowledge and experience obtained in the course of mandatory documentation of treatment for the development of a new law dedicated solely to this aspect of medical practice. As it was mentioned before, such regulations as the Patient Safety Act of 2005 state that physicians and nurses are to gather and share safety information on a voluntary basis, meaning that they have no obligations to be engaged in such activity. However, the presence of a separate piece of legislation will provide a basis for mandatory data gathering, as well as establish the rules that must be followed in the course of this process. At the same time, it must be designed in a way that will make it applicable to the legal environment of each of the states, especially in terms of the authority of certain categories of clinical staff and the delegation of power between healthcare professionals.

In case the presented recommendations are followed, it will be possible to expect that the mandatory documentation of the process of treatment will become an integral part of medical practice in the U.S. In turn, the country’s health industry will see a reduction in the number of lawsuits filed by patients as a response to the cases of malpractice. The burden on the staff of the hospitals and clinics, as well as medical organizations, will also be reduced, creating the conditions for the continuous improvement of the quality of the provided care.