Click the links below to view the position papers.
- Expert Testimony in Nursing Malpractice Actions – see below.
- Unlicensed Assistive Personnel (UAP)
- The Juris Doctorate as a Terminal Degree
- Experts on Nursing: TAANA Takes a Stand
- Criminal Prosecution of Health Care Providers for Unintentional Human Error
TAANA Position: Expert Testimony in Nursing Malpractice Actions
TAANA Position Paper on Expert Testimony in
Nursing Malpractice Actions
The American Association of Nurse Attorneys (TAANA) is a voluntary, nonprofit professional organization whose members have combined the legal and nursing professions. Established in 1982, its membership is comprised of individuals who hold degrees in both nursing and the law or who have completed the requirements of one profession while actively pursuing a professional degree in the other. TAANA’s mission is to provide resources, education and leadership to it members as well to both the medical and legal communities on issues relating to health law and policy. TAANA is committed to educating the public and members of the legal profession about the nature and standards of nursing.
In a medical malpractice action against a nurse must the standard of nursing care be established by expert testimony from a nurse?
For the reasons stated below, it is the position of TAANA that, in a nursing malpractice action, where the applicable standard of nursing care is established through expert testimony, that expert must be a nurse.
1. The need for expert testimony
Negligence is the failure to use reasonable care. Malpractice is negligence by a professional.
Where the alleged negligent act calls for the exercise of expert, medical judgment, the action is one for medical malpractice. A medical malpractice action is not limited to claims against physicians but includes actions against other health care professionals, including nurses. The requisite elements of proof in a medical malpractice case are (1) a deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of plaintiff’s alleged injury. Ordinarily, expert medical opinion evidence is necessary to establish the applicable standard of care and a departure therefrom. The expert witness in a medical malpractice action must possess the requisite skill, training, knowledge, and experience to insure that the opinion rendered is reliable.
2. What expert is competent to testify
It would seem self-evident that the only expert qualified to render expert, opinion evidence against a health care professional is a member of the same profession. It is well established that only a physician is qualified to render testimony as to the standard of care for a physician. Courts have also held that in many other health care professions only a member of the same profession is qualified to testify as to the standard of care. For example only a podiatrist is competent to testify as to the standard of care for a podiatrist. There have been similar decisions relative to physical therapists, chiropractors, and audiologists.
3. Establishing the standard of care for nursing
Historically, expert testimony by a physician has been routinely admitted into evidence for the purpose of establishing the nursing standard of care. Often, the physician is allowed to testify with almost no other foundation other than the fact the witness is a physician. In 1997, an Illinois appellate court noted that “from [their] review of out-of-state authority, [they] are unaware of any state that has ever found it reversible error for a physician to testify as to the applicable nursing standard of care.”
Some authors have questioned the practice of routinely allowing a physician expert to testify as to nursing malpractice. Armstrong, noting how “surprising” this practice is, in 1987 wrote: “[t]he status of nursing has changed, however, and not only do physicians no longer have the special knowledge required to testify in all cases of nursing malpractice, but their use as experts may create problems that could be avoided by using nurses as experts in most nursing malpractice cases. The inquiry should focus on whether the physician does indeed know the customary practice of nurses regarding the procedure in question. Courts should not assume knowledge because nursing and medicine are two distinct disciplines, albeit with some overlapping functions.”
Some jurists questioned the practice of allowing physicians to testify as to nursing standards of care. Hon. Justice Johnson, Georgia, in a dissent, noted:
The claim of professional negligence is against a nurse and relates to nursing care; the affidavit is from a physician and relates to the “medical profession generally” not to nursing care, even though the physician asserts that he is familiar with the standard of care of intubated patients. The effect of this statement would be to qualify him as an expert in every profession connected to medicine. In my view, his affidavit is insufficient to make him an expert on the standard of care in the nursing profession… This case presents us with a perfect opportunity to provide meaningful guidance to the bench and bar of Georgia as well as to significantly reduce the amount of litigation over the rule… we should hold that an affidavit to be deemed sufficient…must come from a member of the same profession as the defendant against whom the claim of professional negligence is made.
Across the country courts are beginning to recognize the nurse as a professional distinct from the physician. For example, in New York an appellate court upheld dismissal of a hospital malpractice action where the only expert to testify as to the standard of care for the nurse was an anesthesiologist.
In a recent decision, the Supreme Court of Illinois held that a physician, board certified in internal medicine, was not competent to testify as to the standard of care of a nurse. The physician expert testified as to his extensive experience working with doctors and nurses in patient fall protection. Plaintiff attempted to establish liability of the hospital by introducing into evidence the testimony of the physician to establish that the hospital’s employee, a nurse, had deviated from applicable nursing standards in preventing the plaintiff from falling specifically in three areas: (1) that the nurse failed to pursue her concern that the patient was a fall risk by failing to notify her supervisor; (2) that the nurse failed to provide “an alternative to the posey vest;” (3) the nurse’s failure to properly communicate the patient’s condition to the physician. Citing to the Amicus Brief submitted by TAANA, the court noted:
[as] TAANA persuasively reasons: “A physician, who is not a nurse, is no more qualified to offer expert, opinion testimony as to the standard of care fornurses than anurse would be to offer an opinion as to the physician standard of care. * * * Certainly, nurses are not permitted to offer expert testimony against a physician based on their observances of physicians or their familiarity with the procedures involved. An operating roomnurse, who stands shoulder to shoulder with surgeons every day, would not be permitted to testify as to the standard of care of a surgeon. An endoscopynurse would not be permitted to testify as to the standard of care of a gastroenterologist performing a Colonoscopy. A labor and deliverynurse would not be permitted to offer expert, opinion testimony as to the standard of care for an obstetrician or even a midwife. Nor would anursebe permitted to testify that, in her experience, when she calls a physician, he/she usually responds in a certain manner. Such testimony would be, essentially, expert testimony as to the standard of medical care.”
The court went on to note:
Scholars share this reasoning:
“Physicians often have no first-hand knowledge of nursing practice except for observations made in patient care settings. The physician rarely, if ever, teaches in a nursing program nor is a physician responsible for content in nursing texts. In many situations, a physician would not be familiar with the standard of care or with nursing policies and procedures which govern the standard of care. Therefore, a physician’s opinions would not be admissible in jurisdictions which hold the expert must be familiar with the standard of care in order to testify as an expert. An example of a common situation which gives rise to allegations of nursing negligence occurs when anurse fails to follow the institutional ‘chain of command’ in reporting a patient condition to a physician who subsequently refuses to attend to the patient condition. It is unlikely that a physician would be familiar with the policy and procedure involved in handling such a situation. It is as illogical for physicians to testify on nursing standard of care as it would be fornurses to testify about medical malpractice.”
This scholarly insight has spread to litigators:
“Testimony from a physician about the standard of care may be subject to objection because the physician is not anurse and does not have direct knowledge of nursing standards of care. A physician’s statement that he or she often observesnurses and therefore knows what they do may be inadequate.”
Beyond scholars and litigators, courts have begun to accept this reasoning.
In some jurisdictions, “the physician is no longer permitted to testify about the nursing standard of care since the physician is not anurse and does not possess direct knowledge of nursing standards.”
According to one scholar:
“These cases represent a growing recognition on the part of courts that nursing, as a profession, has moved beyond its former dependence on the physician, and into a realm where it must and can legally account for its own professional practices. In doing so, the experts who provide the testimony, and the literature from which their opinions are derived, come from the nursing profession.”
4. Nursing as a profession
Registered nurses constitute the largest group of health care providers in the United States today. Nursing is a dynamic profession, distinct from the practice of medicine. As the American Nurses Association has noted:
Nursing has many definitions, but the essence of nursing is that nurses combine the art of caring with the science of health care. Nursing places its focus not only on a particular health problem, but on the whole patient and his or her response to treatment…nurses work in many areas but the common thread of nursing is the nursing process – the essential core of how a registered nurse delivers care.
Nursing has evolved into a profession with a distinct body of knowledge, university-based education, specialized practice, standards of practice, a societal contract (Nursing’s Social Policy Statement, 2003) and an ethical code (Code of Ethics for Nurses with Interpretive Statements, 2001). Registered nurses are concerned about the availability and accessibility of nursing care to patients, families, communities and populations. Registered nurses and the profession seek to ensure the integrity of nursing practice in all current and future healthcare systems… Nursing is a learned profession built upon a core body of knowledge reflective of its dual components of science and art. Nursing requires judgment and skill based upon principles of the biological, physical, behavioral and social sciences. Nursing is a scientific discipline as well as a profession. Registered nurses employ critical thinking to integrate objective data with knowledge gained from an assessment of the subjective experiences of patients and groups. Registered nurses use this critical thinking process to apply the best available evidence and research data to the processes of diagnosis and treatment. Nurses continually evaluate quality and effectiveness of nursing practice and seek to optimize outcomes.
The ANA goes on to say: “Self regulation by the profession of nursing assures quality of performance, which is the heart of the profession’s social contract between the profession of nursing and society.”
The New York State Nursing Association is unequivocal in its opinion that nursing is a distinct profession which must be defined and its standards established and upheld by nurses:
The New York State Nurses Association has repeatedly emphasized that the nursing profession has the responsibility and authority for determining the nature and scope of nursing practice… the scope of professional nursing practice is dynamic and evolves as: the patterns of human response amenable to nursing intervention evolves; nursing diagnoses are formulated and classified; nursing skills and patterns of intervention are made more explicit and patient outcomes responsive to nursing intervention are evaluated…The nature of nursing practice is that intrinsic characteristic that distinguishes nursing from other health professions. It is the essence of nursing; it is constant and remains unchanging.
As the American Nurses Association has noted:
A registered nurse (RN) is licensed by a state, commonwealth, or territory to practice nursing. Professional licensure of the healthcare professions was established to protect the public safety and authorize the practice of the profession. Requirements for authorization of nursing practice and the performance of certain professional nursing roles vary from jurisdiction to jurisdiction. The registered nurse’s experience, education, knowledge, and abilities establish a level of competence… The registered nurse is educated in the art and science of nursing, with the goal of helping individuals and groups attain, maintain, and restore health whenever possible.
Every state requires nurses to complete an accredited nursing program and to pass a national licensing examination prior to practicing as a nurse. Every state has a complex statutory and regulatory scheme including a Nurse Practice Act which defines the practice of nursing in that state and delineates the educational requirements for each branch of nursing practice. As the court noted in Sullivan:
By enacting the Nursing and Advanced Practice Nursing Act, the legislature has set forth a unique licensing and regulatory scheme for the nursing profession. As TAANA observes, under the nursing act, a person with a medical degree, who is licensed to practice medicine, would not meet the qualification for licensure as a registered nurse, nor would that person be competent to sit for the nursing license examination, unless that person completed an accredited program in nursing.
Based on the foregoing it is clear that nursing is a profession, unique, identifiable and autonomous. As a profession, nursing has the authority and responsibility to define its standards of practice. This includes those standards introduced as evidence of the standard of nursing care in the legal arena.
It is clear that the profession of nursing, though closely related to the practice of medicine, is, indeed, distinct with its own licensing scheme, educational requirements, areas of specialization, Code of Ethics, models, theories and contract with society. The standard of care for nurses arises from the very nature and scope of nursing and is derived from the nursing process. The nurse is not a “junior doctor” nor is the nurse a mere “underling” of the physician. To so hold would negate the existence of nursing as a profession and would render the Nurse Practice Acts of every state, commonwealth and territory meaningless. It is unlikely that any physician, unless he/she has completed a nursing program and has practiced as a nurse, can offer competent, reliable expert opinion on these nursing standards. It is unjust and ill advised to allow the medical profession to continue to offer expert, opinion evidence on the standards of care for nurses. This practice undermines the ability of the profession to set its own standards or to define its scope of practice. A nurse could be found liable for failing to perform to the physician’s standard when, in fact, he/she was acting within the scope of his/her own license as determined by professional organizations and state nurse practice acts. At the very least, this practice invites jury confusion and inconsistent verdicts. TAANA believes it is time to clarify the law and to accord to the profession of nursing the recognition, autonomy and respect given to every other health care profession in the United States. The nursing profession and only the nursing profession has the right, duty and responsibility to determine the scope and nature of nursing practice including the standard of care for nurses.
It is the position of The American Association of Nurse Attorneys that the only expert competent to testify as to the standard of care for nurses is a nurse.
Chafin, supra note 1; Chandler General Hosp., Inc. v. McNorril, 354 S.E.2d 872 (Ga. Ct. App. 1987); Dent v. Memorial Hosp. Of Adel, 509 S.E.2d 908 (Ga. Ct. App. 1998); Bleiler v. Bodnar, 479 N.E.2d 230 (N.Y. 1985); Cantone v. Rosenblum, 186 A.D.2d 167, 587 N.Y.S.2d 743 (N.Y. App. Div. 1992); Leonard v. Providence Hosp., 590 So. 2d 900 (Ala. 1991); Polonsky v. Union Hosp., 418 N.E.2d 620 (Mass. App. Ct. 1981).
Bleiler, supra note 2; Migues v. Sagrera, 620 So. 2d 463 (La. Ct. App. 1993); Fraijo v. Hartland Hosp., 99 Cal. App. 3d 331 (Cal. Ct. App. 1979); Norton v. Argonaut Ins. Co., 144 So. 2d 249 (La. Ct. App. 1962); Holloway v. Northside Hosp., 496 S.E.2d 510 (Ga. Ct. App. 1998).
De Stefano v. Immerman, 188 A.D.2d 448, 591 N.Y.S.2d 47 (N.Y. App. Div. 1992); Barracca v. St. Francis Hosp., 237 A.D.2d 396, 655 N.Y.S.2d 565 (N.Y. App. Div. 1997); Dolan v. Jaeger, 285 A.D.2d 844, 727 N.Y.S.2d 784 (N.Y. App. Div. 2001); Keys v. Mercy Hosp. of New Orleans, 485 S.2d 514 (La. Ct. App. 1986); Capan v. Pollice, 410 A.2d 1282 (Pa. 1980); Erby v. North Mississippi Med. Ctr., 654 So. 2d 495 (Miss. 1995).
Brown v. New York, 47 N.Y.2d 927, 393 N.E.2d 486 (N.Y. 1979); LaMarque v. North Shore University Hosp., 227 A.D.2d 594 (N.Y. App. Div. 1986); Peters v. ABC Ins. Co., 552 So. 2d 430 (La. Ct. App. 1989); Morris v. Childrens Hosp. Med. Ctr., 597 N.E.2d 1110 (Ohio Ct. App. 1991); Berdyck v. Shinde, 613 N.E.2d 1014 (Ohio 1993); Ramage v. Central Ohio Emergency Services, 592 N.E.2d 828 (Ohio 1992); Alef v. Alta Bates Hosp., 6 Cal. Rptr. 2d 900, 904 (Cal. Ct. App. 1992) (“The standard against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts”); Cohen v. Albert Einstein Med. Ctr., 592 A.2d 720, 723 (Pa. Super. Ct. 1991) (holding that “in this medical malpractice action where the events and circumstances were beyond the knowledge of the average lay person, it was necessary that the plaintiff present expert testimony to establish her cause of action”); Sullivan v. Edward Hosp., 806 N.E.2d 645 (Ill. 2004).
LaMarque, supra note 5; McDonald v. Glynn-Brunswick Memorial Hosp., 418 S.E.2d 393 (Ga. Ct. App. 1992); Cagnolatti v. Hightower, 692 So. 2d 1104 (La. Ct. App. 1996); Kirker v. Nicolla, 256 A.D.2d 865, 681 N.Y.S.2d 689 (N.Y. App. Div. 1998) .
Cagnolatti, supra note 6 (neither a nurse nor a pharmacologist could testify as to standard of care of physician); McDonnell v. County of Nassau, 129 Misc. 2d 228, 492 N.Y.S.2d 699 (N.Y. Sup. Ct. Nassau County 1985) (psychologist not permitted to testify as to standard of care of psychiatrist); Dombrowski v. Moore, 299 A.D.2d 949, 752 N.Y.S.2d 183 (N.Y. App. Div. 2002) (nurse could not testify as to standard of care of a physician). In some states, the requirement of expert testimony by a physician to establish a malpractice action against a physician is statutory. See Ohio Rev. Code Ann. 2743.43 (Anderson 2004); Evid. R. 601(D). See also Morris,supra note 5, interpreting Evid. R. 601(D) as precluding a registered nurse from testifying as to the standard of care for a physician. See also Ala. Code 6-5-548 (1975); Fla. Stat. Ann. 766.102 (West 1997).
Botehlo v. Bycura, 320 S.E.2d 59 (S.C. Ct. App. 1984) (holding that an orthopedic surgeon is not qualified to testify as to the standard of care of a podiatrist); Darby v. Cohen, 101 Misc. 2d 516, 421 N.Y.S.2d 337 (N.Y. Sup. Ct. Queens County. 1979) (physician not qualified to testify as to podiatric standard of care); Dolan v. Galluzzo, 396 N.E.2d 13 (Ill. App. Ct. 1979) (holding that an orthopedic surgeon is not competent to testify as to the standard of care of a podiatrist); Craig v. Borcicky, 557 So. 2d 1253 (Ala. 1990) (orthopedic surgeon not allowed to testify as to standard of care of podiatrist); Melville v. Southward, 791 P.2d 383 (Colo. 1990) (orthopedic surgeon not competent to testify as to standard of care of podiatrist); but see Sanford v. Howard, 288 S.E.2d 739 (Ga. Ct. App. 1982) (holding that orthopedic surgeon could testify as to standard of care of podiatrist in case involving surgery to plaintiff’s flat feet).
Toormina v. Goodman, 63 A.D.2d 1018, 406 N.Y.S.2d 350 (N.Y. App. Div. 1978) (physician not allowed to testify as to standard of care for chiropractor); see also Sheppard v. Firth, 334 P.2d 190 (Or. 1959), Morgan v. Hill, 663 S.W.2d 232 (Ky. Ct. App. 1984) (holding that, though neurosurgeon could not testify as to the standard of care of a chiropractor, he could testify that chiropractic manipulation caused injury); but see Stoczynski v. Livermore, 782 P.2d 834 (Colo. Ct. App. 1989) (holding that it was proper to allow osteopathic physician to testify as to the standard of care for a chiropractor where there was testimony that physician had experience in performing manipulations at issue).
McMillon v. Durant, 439 S.E.2d 829 (S.C. 1993) (neurosurgeon allowed to testify as to standard of care of a pediatric nurse caring for a child with an ear infection and preexisting shunt); St. Elizabeth Hosp. v. Graham, 883 S.W.2d 433 (Tex. App. 1994) (physician testified as to standard of care for ICU nurse in positioning a patient in a recliner); Alvis v. Henderson Obstetrics, 592 N.E.2d 678 (Ill. App. Ct. 1992) (two obstetricans testified that an R.N. should be able to diagnose a pending breech delivery and notify the doctor in a timely manner); Paris v. Kreitz, 331 S.E.2d 234, 245 (N.C. Ct. App. 1985) (noting that “physicians are clearly acceptable experts with regard to nurses”); Haney v. Alexander, 323 S.E.2d 430 (N.C. Ct. App. 1984) (allowing a cardiologist and an internist to testify as to the standard of care for a nurse in a case where it was alleged that when a nurse called the decedent’s treating physician, twice, she failed to convey the patient’s vital signs); Crook v. Funk, 447 S.E.2d 60 (Ga. Ct. App. 1994) (holding that physician is competent to testify as to standard of care for nurses because both are members of the medical profession); Howard v. City of Columbus, 466 S.E.2d 51 (Ga. Ct. App. 1995) (holding that a physician is competent to testify as to the standard of care for an LPN); Wingo v. Rockford Memorial Hosp., 686 N.E.2d 722 (Ill. App. Ct. 1997) (allowing a physician to testify as to the standard of care for nurses in reporting changes in a patient’s condition to the physician); Goff v. Doctors General Hosp., 333 P.2d 29, 33 (Ca. Ct. App. 1958) (physician competent to testify as to the standard of care for obstetrical nurse where patient was bleeding excessively, nurse had called the physician three times, physician had reassured the nurse the bleeding was normal and nurse waited another one hour and forty-five minutes before calling the physician a fourth time); King v. State, 728 So. 2d 1027 (La. Ct. App. 1999); Fleming v. Prince George’s County, 358 A.2d 892 (Md. 1976) (physician testified nurse should have been more “forceful” in conveying their concerns regarding the patient).
Wingo, supra note 12; see also Goff, supra note 12, at 33 (“surely, a qualified doctor would know what was standard procedure for a nurse to follow”); King, supra note 12, at 1030 (“physicians frequently testify about nursing standards because nurses who perform medical services are subject to the same standard of care and liability as physicians”); Thomas v. Corso v. Miller, 288 A.2d 379 (Md. 1972) (codefendant physician “obviously” competent to testify as to the standard of care for the nurses).
Armstrong, Elizabeth J., Nurse Malpractice in North Carolina, 65 N.C. L. REV. 579, 590 (1987); see also Elizabeth W. Beyer & Pamela W. Popp, Nursing Standard of Care in Medical Malpractice Litigation: The Role of The Nurse Expert Witness, 23 J. HEALTH & HOSP. L. 363, 365 (1990).
Dolan v. Jaeger, 285 A.D.2d 844, 727 N.Y.S.2d 784 (N.Y. App. Div. 2001); see also Estate of Bradley ex. rel. Bradley v. Mariner Health, Inc., 315 F. Supp. 2d 1190 (S.D. Ala. 2004) (wherein neither a nurse practitioner nor a physician were allowed to testify as to the standard of care in a nursing home).
Id. at 658-659 (quoting Elizabeth W. Beyer & Pamela W. Popp, Nursing Standard of Care in Medical Malpractice Litigation: The Role of The Nurse Expert Witness, 23 J. HEALTH & HOSP. L. 363, 365 (1990)).
Id. (quoting F. Cavico & N. Cavico,The Nursing Profession in the 1990’s: Negligence and Malpractice Liability, 43 CLEV. ST. L. REV. 557, 578 (1995); see Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (N.Y. App. Div. 2001) (upholding trial court’s dismissal of nursing malpractice action where physician anesthesiologist was only expert to testify as tonurse’s standard of care);Vassey v. Burch, 45 N.C. App. 222, 226, 262 S.E.2d 865, 867 (“Although the affidavit of [the physician] may be sufficient to establish the accepted standard of medical care for a doctor in his office, it does not establish the standard of care for anurse in a hospital”),rev’d on other grounds, 301 N.C. 68, 269 S.E.2d 137 (N.C. 1980)).
Id. at 11 (emphasis added, citations omitted);see also American Nurses Association, supra note 28, for a detailed discussion of the scope of nursing practice, the dynamic nature of nursing and the conceptual models and theories of nursing.
New York State Nurses Association, Position Statement: Guidelines for Interpretation of the Scope of Professional Nursing Practice (2002), at http://www.nysna.org/programs/practice/positions/position32.htm (emphasis added, citations omitted).
See generally National Council of State Boards of Nursing,at http://www.ncsbn.org see also Feutz-Harder, Sheryl A., NURSING AND THE LAW 1-2 (Pesi 1993) for a discussion of the history of nursing licensure and the development of Nurse Practice Acts.
Unlicensed Assistive Personnel (UAP)
TAANA Recommendations – 06/27/2007
Unlicensed Assistive Personnel (UAP)
The American Association of Nurse Attorneys Recommendations Regarding Unlicensed Assistive Personnel
Unlicensed assistive personnel (“UAP”) are defined by the American Nurses Association as “individuals who are trained to function in an assistive role to the registered professional nurse in the provision of patient/client care activities as delegated by and under the supervision of the registered professional nurse.”
In practice a UAP may include:
- certified nurses aide
- clinical assistant
- home health aide
- nursing assistant
- personal care assistant
- orderlies or attendants
- certified phlebotomist
UAPs have been used for many years in various settings to assist health care providers, usually registered nurses, in providing care to their patients. The use of UAPs has increased dramatically in recent years partially as a result of managed care and Medicare reductions in reimbursement. UAPs are now being employed in health care settings such as acute care hospitals where their use was limited in those settings in years past. Additionally, UAPs are being required to perform increasingly complex tasks and the nurses supervising the UAPs have been asked to take on an increased amount of responsibility for the care provided by the UAPs. The increased use of UAPs has caused concern among health care professionals because of concerns about safety and quality of care for patients and professional liability issues for the supervising nurses. In 1997 more than 25 state legislatures introduced legislation to regulate some aspect of unlicensed assistive personnel. Additionally, many professional nursing organizations have studied the use and impact of UAPs and are adopting position statement regarding their use.
The purpose of The American Association of Nurse Attorneys (“TAANA”) white paper regarding UAPs is to set forth recommendations regarding the use of UAPs working under the supervision or direction of registered nurses. TAANA recognizes that the forces controlling the structure, financing and organization of health care are exceedingly complex and that it is these forces, which have led to the use of UAPs. Given the increasing use of UAPs and TAANA”s unique ability to evaluate both the nursing and legal aspects of their use, TAANA adopts this white paper to provide guidance and recommendations to assist in maximizing patient safety and quality care.
TAANA proposes the following recommendations:
- Many nurses practicing today are not trained in nursing school in the team nursing approach that teaches, among other skills, supervision and delegation of various components of nursing tasks. TAANA recommends that schools of nursing that do not currently include such education revise their curriculum to include team nursing and/or supervision and delegation skills to assist nurses in functioning in a health care setting which uses UAPs.
Regulation of Registered Nurses
- In addition to the lack of education regarding working with UAPs, many nurses have worked in states where there is no guidance concerning delegation to and supervision of UAPs by registered nurses. TAANA recommends that the appropriate body for providing this guidance and direction is the state board of nursing which regulates the practice of professional nursing in the state. This guidance should set forth criteria for determining which tasks can be delegated and which cannot be delegated because they are non-delegable duties. Additionally, these guidelines or regulations should provide the registered nurse with direction on what type of supervision is necessary.
Certification/Registration of UAPs
- TAANA further recommends that certain standards be established by the appropriate state agency setting forth standardized curriculum and testing procedures for UAPs. These procedures could be similar to those for nursing assistants in long term care facilities established by federal law in the Omnibus Budget Reconciliation Act of 1987.These standards should establish initial educational criteria, demonstration of competency and resulting certification as well as continuing education requirements.
Patient Care Restructuring Teams
- TAANA recommends that before the use of UAPs is instituted in a health care setting that a multidisciplinary patient care team be convened to evaluate, formulate and implement the use of UAPs. This team should include registered nurses, physicians, administration and an unlicensed assistive person. The team”s task would include drafting job descriptions for the UAPs and registered nurses supervising them. The team”s duties should also include developing the mix of team members responsible for providing care to the patients and drafting and training orientation materials and protocols.
Monitoring and Reevaluation
- The use of UAPs should be periodically monitored and reevaluated after a certain period of time. This process should help to identify job descriptions that may need revision, changes to the team mix and inservice educational needs. TAANA recommends that the multidisciplinary team discussed above perform this monitoring and conduct a formal reevaluation at six (6) months and one (1) year after initially instituting the use of UAPs.
Continuing Education and Inservice
- TAANA recommends that facilities using UAPs include in their inservice and education classes for both UAPs and registered nurses concerning the areas of delegation and supervision.
TAANA recognizes that the use of UAPs presents both opportunities and concerns. When used appropriately, unlicensed assistive personnel can contribute to the care of patients and provide personal care needs or nursing tasks that do not require the skill and judgment of the registered nurse. Patients must be protected so that only those unlicensed assistive personnel who have been screened, trained and periodically evaluated are assisting in care. TAANA recognizes that nurses are ultimately responsible for the provision of nursing care provided to their patients. That responsibility includes accountability for the results and outcome of the care provided including the nursing tasks performed by UAPs. For the safety of patients and reduction in liability for the nurse, TAANA recognizes that quality patient care outcomes will be more readily achievable if the above recommendations are followed.
The Juris Doctorate as a Terminal Degree
TAANA Position Statement -06/27/2007
The American Association of Nurse Attorneys Recommendations Regarding the Juris Doctorate as a Terminal Degree
Education today requires creative collaboration between disciplines. Nursing has a great deal to learn from the legal knowledge base of nurse attorneys. Whether tenure, deanship, or a chair position is under consideration, the existence of a law school on a university campus is irrelevant to the role a nurse attorney may assume in higher education. Faculty holding Juris Doctorates are not appendages of their law schools any more than nurse physiologists are appendages of the physiology department. The Juris Doctorate provides preparation for independent function as a counselor of law, a policy maker, and a scholar of law. Combined with the general BSN and specialized preparation in nursing, the nurse attorney is capable of independent functioning as a policy leader for the College of Nursing, a collaborative team player with the Deans of Health Sciences and Academic Affairs, and scholar of the intricacies of administrative, nursing, legal, ethical, and financial business practice. In the current world of managed care maneuvering, the nurse attorney, College of Nursing Dean, or administrator is well positioned to negotiate the strengths of the faculty and school as creative contracts are arranged for faculty practice, research utilization, and educational outreach.
The individual’s entire portfolio of qualifications must be evaluated when a position in higher education is sought. The ability of the nurse attorney to enhance the discipline of nursing through linkages of the two professions must be considered. The Juris Doctorate is only acquired after a minimum of three to six years of postgraduate study. Master’s degrees in nursing are usually expected in combination with the Juris Doctorate in Colleges of Nursing. Legal knowledge is intertwined with other areas of knowledge (ethics, philosophy, political science, business, and history, to name a few). The nurse attorney scholar integrates legal and nursing concepts and translates them for the use of nursing staff, faculty, and administrators. With this skill and knowledge, the nurse attorney provides leadership in academic nursing that spans the university community’s commitment to knowledge discovery and dissemination.
The American Association of Nurse Attorneys recommends that the Juris Doctorate degree receive equitable treatment in relation to other doctorates when criteria for faculty and nursing school administration are being developed. Whether or not a law school exists on a campus does not determine whether the Juris Doctorate is a creditable degree in academia. The Juris Doctorate is a terminal degree. Accreditation standards must not be restrictive but rather encourage campuses to evaluate their own resources and needs as well as the total qualifications of any faculty or administrative candidate.
Experts on Nursing: TAANA Takes a Stand
TAANA Position Paper – 06/27/2007
Experts on Nursing
Can a physician offer expert, opinion evidence as to the nursing standard of care? That was the issue recently before the Illinois Supreme Court. Citing repeatedly to a brief submitted by The American Association of Nurse Attorneys written by Karen A. Butler, the Court held that only a nurse is qualified to offer expert evidence as to the standard of care for nurses (Sullivan v. Edward Hosp., No. 95409, 2004 WL 228956 (Ill. Feb. 5, 2004).
Even before the Sullivan case, for over two years, the Litigation Section of TAANA had been working on a position paper surveying the laws in most states relative to whether a non-nurse could testify as to the standard of care for nurses. Through their research TAANA learned that only a physical therapist could testify as an expert as to the physical therapy standard of care and only a chiropractor could testify as to the standard of care for a chiropractor. Similar decisions were found for psychologists, audiologists and podiatrists. For example an orthopedic surgeon could not testify as to the standard of care of a podiatrist and a psychiatrist was precluded from offering expert testimony as to the standard of care for a psychologist. It was clear in every jurisdiction that only a physician could offer expert testimony as to the standard of care for a physician. 
When it came to the profession of nursing, however, non-nurses (physicians) routinely offered expert, opinion evidence as to the standard of care for nurses sometimes with no more foundation than the fact the witness was, indeed, a physician. Despite the fact that every state has a complex regulatory and licensing scheme for nurses including educational requirements and examination, the courts were still treating the profession of nursing as some lesser appendage of the medical profession.
It is clear that the profession of nursing, though closely related to the practice of medicine, is, indeed, distinct with its own licensing scheme, educational requirements, areas of specialization, Code of Ethics, models and theories and contract with society. The standard of care for nurses arises from the very nature and scope of nursing and is derived from the nursing process. The nurse is not a “junior doctor” nor is the nurse a mere “underling” of the physician. For the courts to so hold would negate the existence of nursing as a profession and would render the Nurse Practice Acts in every state, commonwealth and territory meaningless. It is unlikely that any physician, unless he/she has completed a nursing program and has practiced as a nurse, is capable or qualified to offer competent, reliable expert opinion on these nursing standards. The nursing profession and only the nursing profession has the right and duty to determine the scope and nature of nursing practice including the standard of care for nurses.
During the course of their research TAANA learned that a case was heading to the Supreme Court of Illinois in which the Court was being asked to consider this specific issue. In Sullivan the plaintiff alleged the nurse was negligent in preventing the patient from falling during an agitated state. To support the allegations against the nurse, the plaintiff offered the testimony of a physician but not a nurse. The physician testified the nurse was negligent in not more forcibly conveying to the physician the condition of the patient and in fact that the “nurse missed the diagnosis of delirium completely.”
In September, 2003, TAANA submitted an Amicus brief to the Illinois Supreme Court in the case of Sullivan v. Edward Hosp. The brief was drafted by Karen Butler, Chair of the Litigation Section based on their previous research and supplemented by extensive research relative to Illinois law. The Chicago Chapter, particularly, Leatrice Schmidt, reviewed and submitted the brief. Citing to multiple authorities throughout Illinois, as well as multiple other jurisdictions, statutory authority and scholarly studies of this issue, TAANA argued that nurses, and only nurses, have the authority and responsibility to define the scope and practice of nursing. Therefore, only a nurse is qualified to offer expert, opinion evidence as to the nursing standard of care.
The Illinois Trial Lawyers also submitted an Amicus Brief arguing that physicians can do anything a nurse can do and, therefore, a physician can always testify as to the standard of care for nurses. At the very least, because physicians work with nurses everyday, their familiarity with the practice of nursing from observation is enough to allow the physician to testify as to the nursing standard of care. In response to this argument TAANA pointed out that certainly, nurses are not permitted to offer expert testimony against a physician based on their observances of physicians or their familiarity with the procedures involved. An operating room nurse, who stands shoulder to shoulder with surgeons everyday, would not be permitted to testify as to the standard of care of a surgeon. An endoscopy nurse would not be permitted to testify as to the standard of care of a gastroenterologist performing a colonoscopy. A labor and delivery nurse would not be permitted to offer expert, opinion testimony as to the standard of care for an obstetrician or even a midwife. Nor would a nurse be permitted to testify that, in her experience, when she calls a physician, he/she usually responds in a certain manner. Such testimony would be, essentially, expert testimony as to the standard of medical care.
The Trial Lawyers Association argued that the question should not be whether the expert is a nurse or a physician, but rather, whether the expert is familiar with the procedure in question. Under this rule where both nurses and physicians are familiar with and perform a specific procedure (for example starting an intravenous) the physician should be allowed to testify as to the standard of care for a nurse. Under this analysis, the nurse should likewise, be permitted to offer expert, opinion evidence as against the physician. However, this is a position taken by no court or jurisdiction in the United States.
The Trial Lawyers also argued that a physician is familiar with and is capable of performing any nursing procedure using as an example, a bath. The members of TAANA were not familiar with any situation in which a physician would give a bed bath and it is unlikely physicians are familiar with this process any more than any other intelligent, lay person. The issue would be whether the process of bathing a particular patient is a task which can be safely delegated to unlicensed personnel. It is unlikely a physician is familiar with the training and education received by ancillary health care workers such as nurses aids and would not be qualified to delegate tasks to such workers. Delegation of tasks to unlicensed health care workers as well as supervision of such workers is but one example of the responsibilities of the Registered Nurses with which physicians have almost no experience.
On February 5, 2004, The Illinois Supreme Court issued a decision. Citing extensively to the TAANA brief and also to the authorities cited by TAANA, the Court ruled that only a nurse is qualified to offer opinion evidence as to the nursing standard of care.
It remains the position of The American Association of Nurse Attorneys that the only expert competent to testify as to the standard of care for nurses is a nurse.
 The Litigation Section would like to take this opportunity to thank the Chicago Chapter, particularly Leatrice Schmidt for reviewing and submitting the brief and those members of the Chicago Chapter who traveled to Springfield in November to hear oral arguments. We would also like to thank the law firm of Thuillez, Ford, Gold, Johnson and Butler for underwriting the cost of researching and preparing the brief for submission. We anticipate that both the TAANA brief and the decision will be published in an upcoming issue of the Journal of Nursing Law.
Criminal Prosecution of Health Care Providers for Unintentional Human Error
August 2011 TAANA Position Paper
The American Association of Nurse Attorneys (TAANA) and the American Association of Legal Nurse Consultants (AALNC) are not for profit membership organizations dedicated to:
- Serving as resources for the healthcare and legal communities;
- Professional enhancement and growth of registered nurses practicing in the specialty areas of nurse attorneys and legal nurse consulting respectively; and
- Advancing these nursing specialties.
TAANA and AALNC believe patient harm can only be prevented when modern safety theory is employed in response to adverse events. Errors must be reported and analyzed, examining contributing factors and system flaws. The root cause analysis and/or failure mode and effects analysis required to do so cannot occur in a culture of fear or a culture of blame. Because punitive approaches deter error-reporting and endanger patients by allowing latent failures to continue, the criminal prosecution of health care providers for unintentional error creates worrisome implications for patient safety (Plum, 1997).
Unintentional human errors occur in clinical practice and are inevitable. (Joint Commission, 2006). The vast majority of errors reflect system problems that need to be addressed. The fear of criminal charges undermines an organization’s attempts to create a culture of safety and improve those dangerous systems. The criminal prosecution of an unintentional human mistake undermines error reporting and the creation of a culture of safety, demoralizes providers, accelerates the exodus from clinical practice, exacerbates the shortage of health care providers, contributes to a culture of blame, and perpetuates the unachievable expectation of perfection in practice. (ISMP, 2006) (ISMP, 2007) (Richardson, 2006). When investigating clinical error, emphasis should be placed on problem-solving rather than on blame (Joint Commission, 2007).
Errors need to be recognized as inevitable and viewed as opportunities to improve the systems in which providers work. The legislatures have created professional licensing boards with the intent that they have exclusive authority over the practice of licensees. The public is protected from unsafe providers by the professional licensing board authority to restrict or revoke licensure. Criminal prosecution of a health care provider for clinical error may undermine that exclusive board authority. As such, the criminal system should only be invoked in those cases involving an element of intentionality.
- TAANA and AALNC join the safety experts and regulatory bodies who believe patient safety depends upon a systems approach to analyzing adverse events and clinical error and that this can only occur in a non-punitive environment.
- The criminal prosecution of health care providers for unintentional error endangers patients, demoralizes providers, accelerates their exodus from clinical practice, exacerbates the shortage of health care providers, contributes to a culture of blame, and perpetuates the unachievable expectation of perfection in practice.
- The criminal justice system should be invoked only in situations in which there is an actual intent to cause harm.
- The determination as to the appropriateness of disciplinary action should be within the exclusive purview of employers and professional licensing boards.
TAANA and AALNC oppose the criminal prosecution of health care providers for unintentional error and support other organizations in similar opposition.
- Institute of Medicine. (2006). To err is human: Building a safer health system. Washington, DC: National Academy Press. Retrieved from http://www.nap.edu/catalog.php?record_id=9728“[W]hen a fatal medication error occurs, there often is considerable pressure from the public and the legal system to blame and discipline individuals for mistakes. However, criminal prosecution sends the false message that clinical perfection is an attainable goal, and that ‘good’ health care practitioners never make errors. Practitioners begin to fear disciplinary action if they make a mistake, and reporting of errors decreases, making it more difficult to determine root causes. The belief that a medication error could lead to felony charges, steep fines, and a jail sentence also can have a chilling effect on recruitment and retention of health care providers-particularly nurses, who are already in short supply. . . . While there is considerable pressure from the public and the legal system to blame and punish individuals who make fatal errors, filing criminal charges against a health care provider who is involved in a medication error is unquestionably egregious and may only serve to drive the reporting of errors underground.”
- Institute for Safe Medication Practices. (2007, March 7). Criminal prosecution of human error will likely have dangerous long-term consequences. Retrieved from http://www.ismp.org/Newsletters/acutecare/articles/20070308.asp“[T]he most recent wave of criminal investigations into errors made by healthcare practitioners is cause for concern. The law clearly allows for the criminal indictment of healthcare professionals who make errors that harm patients, despite the lack of intent to cause harm. But it will long be debated whether this course of action is required or beneficial. Its potential impact on patient safety is enormous, sending the wrong message to healthcare professionals about the importance of reporting and analyzing errors. Further, if this is just the beginning of an upward trend of criminal investigations and indictments in the wake of medical errors, it could also have a chilling effect on the recruitment and retention of an already depleted workforce of healthcare professionals.”
- Joint Commission. (2006). Strategies for building a hospitalwide culture of safety. Safety Initiatives. Oakbrook Terrace, IL: Joint Commission Resources.
“[E]veryone needs to understand that human error is inevitable-we need to avoid blaming individuals and begin to develop solutions that will make our systems better able to defend against mistakes, preventing them from reaching our patients.”
- Joint Commission. (2007). Front line of defense: The role of nurses in preventing sentinel events. Oakbrook Terrace, IL: Joint Commission Resources.
“Organizations that continue to harbor cultures of blame, on the other hand, view error as individual failures and respond punitively, rather than constructively. Such cultures breed fear, undermine error reporting, and do not reduce patient risk. The Joint Commission has stated that when investigating, emphasis should be placed on problem-solving rather than on blame.”
- Plum, S. (1997). Nurses indicted: Three nurses may face prison in a case that bodes ill for the profession. Nursing, 97. Retrieved from http://findarticles.com/p/articles/mi_qa3689/is_199707/ai_n8766289/
- Flight Safety Foundation’s Kenneth Quinn:, “[T]here is a tremendous chilling effect that criminal prosecutions can have on getting people to come forward and admit mistakes. We need to focus not on putting people behind bars, but rather on finding out what went wrong and why, and then to prevent its reoccurrence.” Michael R. Cohen, RPh, MS, FASHP, past president of the ISMP: “Prosecuting these nurses accomplishes nothing. The real error is blaming the people instead of the process.”
- Richardson, D. (2006). Hospital association statement regarding legal actions against nurse. Wisconsin Hospital Association. Retrieved from http://www.wha.org/newsCenter/pdf/nr11-2-06Crimchargestmt.pdf
“By setting a precedent that the DOJ will pursue criminal charges against healthcare professionals who make unintentional human errors, the DOJ sends a chilling message to healthcare professionals now in the state, and to those considering practicing here.”
- Agency for Healthcare Research & Quality. (2007). 10 patient safety tips for hospitals. Retrieved from http://www.ahrq.gov/qual/10tips.htm
- American Nurses Association. (2006). ANA comments on criminal charges filed against WI RN. Retrieved from http://www.okcnursingtimes.com/newsletter/newsletter_view.asp?newsid=3217&catid=296&active=0&mode=current
- Gordon, S. (2005). Nursing against the odds: How health care cost cutting, media stereotypes, and medical hubris undermine nurses and patient care. New York: Cornell University Press.
- Institute of Medicine. (2004). Keeping patients safe: Transforming the work environment of nurses. Washington, DC: National Academy Press. Retrieved from
- Institute of Medicine. (2005). Crossing the quality chasm: A new health system for the 21st century. Washington, DC: National Academy Press. Retrieved from http://www.nap.edu/html/quality_chasm/reportbrief.pdf
- Institute for Safe Medication Practices. (2006). Since when is it a crime to be human. White paper. Retrieved from http://www.ismp.org/pressroom/viewpoints/julie.asp
- Joint Commission. (1998). Medication use: A systems approach to reducing errors. Oakbrook Terrace, IL: Joint Commission Resources.
- Joint Commission. (2002). Health care at the crossroads: Strategies for addressing the evolving nursing crisis. Retrieved from http://www.aacn.nche.edu/media/pdf/JCAHO8-02.pdf
- Joint Commission. (2003). Staffing effectiveness in hospitals. White paper. Oakbrook Terrace, IL: Joint Commission Resources.
- Joint Commission. (2005). Contracted staff and patient safety. Oakbrook Terrace, IL: Joint Commission Resources.
- Joint Commission. (2006a). Patient safety: Essentials for health care. Guidelines. Oakbrook Terrace, IL: Joint Commission Resources.
- Just Culture Community. (2007). Professionals facing criminal charges: A threat to system safety? Retrieved from http://www.justculture.org/newsletters/pdf/newsletter_janfeb07.pdf
- Mason, D. (2007). Good nurse bad nurse: Is it an error or a crime? American Journal of Nursing, 107 (3), 11.
- National Institute for Occupational Safety and Health. (2004). CDC workplace: Overtime and extended work shifts: Recent findings on illnesses, injuries, and health behaviors. Retrieved from http://www.cdc.gov/niosh/docs/2004-143/references.html
- Shalo, S. (2007). To err is human but for some nurses a crime. American Journal of Nursing, 107 (3), 20-21. Retrieved from http://journals.lww.com/ajnonline/Abstract/2007/03000/To_Err_Is_Human_But_for_Some_Nurses,_a_Crime.10.aspx
- Smetzer, J. (1998). Lesson from Colorado. Beyond blaming individuals. Nursing, 28 (5), 48-51.
- Smetzer, J., & Cohen, M. (1998). Lessons from the Denver medication error/criminal negligence case: Look beyond blaming individuals. Hospital Pharmacy, 33, 640-657.
- State of Wisconsin v. Julie Thao, Circuit Court, Dane County, Criminal Complaint, Case Number 2006 CF 2512. Retrieved from http://www.thedailypage.com/media/2006/11/22/ThaoComplaint.pdf
- Wahlberg, D., & Trevelen, E. (2006). Nurse is charged in death of patient: Legal action upsets staff at St. Mary’s. Wisconsin State Journal, November 3, 2006. Retrieved from http://host.madison.com/news/article_1e495798-ed4f-5f8d-971d-3eb3effdd43d.html
FOR IMMEDIATE RELEASE
Date: March 15, 2004
Contact: Patricia M. Adkinson
Address: 7794 Grow Drive Pensacola, FL 32514-7072
Phone: (850) 474-3646
Fax: (850) 484-8762
ILLINOIS SUPREME COURT RULES ONLY NURSES CAN TESTIFY ON STANDARD OF CARE FOR NURSES
Pensacola, Fla – The American Association of Nurse Attorneys (TAANA) recently announced that the Illinois Supreme Court responded positively to TAANA’s Amicus Brief submitted in the case of Sullivan v. Edward Hosp., No. 95409, 2004 WL 228956 (Ill. Feb. 5, 2004) when the court issued its decision on February 5, 2004. Citing extensively to the TAANA brief and also to the authorities cited by TAANA, the court ruled that only a nurse is qualified to offer opinion evidence as to the nursing standard of care.
The brief was drafted after almost two years of research by members of the TAANA Litigation Section and was written by Karen Butler, Chair of the Litigation Section. The Chicago Chapter of TAANA, particularly, Leatrice Schmidt, reviewed and submitted the brief. The issue, in brief, was whether a physician, who is not a nurse, should be permitted to offer expert opinion evidence, as to the standard of care for nurses. The TAANA position is that nurses and only nurses have the authority and responsibility to define the scope and practice of nursing. The Illinois Trial Lawyers also submitted an Amicus Brief arguing that physicians can do anything a nurse can do and, therefore, a physician can always testify as to the standard of care for nurses.
To contact Karen Butler, call Thuillez, Ford, Gold, Johnson & Butler at 518-455-9952 or email firstname.lastname@example.org.
The American Association of Nurse Attorneys is a professional association that serves as a resource network for nurse attorneys and educates the public on matters of nursing, health care and the law.
TAANA’s Amicus Brief Supporting a Nurse’s Non-Negotiable Duty to Advocate
TAANA member, Diane Warlick, recently wrote a compelling Amicus Brief on behalf of TAANA in the case of Ellen Hughes Finnerty v. Board of Registered Nurses, Court of Appeals for the State of California, Cause No. B 200659. Another TAANA member, Phyllis Gallagher, raised awareness of the situation shortly after the entry of the California Board of Nursing ruling against her client.
The case concerns a nurse’s duty to serve as a vigilant advocate for the safety and rights of a patient in the face of a doctor’s order that the nurse believes to endanger the patient.
The brief filed on behalf of TAANA references the longstanding history of tension between the medical and nursing professions. As stated by Warlick, “… There are clearly areas of overlap in the scopes of practice of nursing and medicine, yet they remain clearly separate and distinct professions.”
Issues raised by the brief:
- The professionalism of nursing practice no longer requires nurses to blindly follow orders that may cause harm
- The standards of nursing practice and the Nursing Code of Ethics establish duties condone a nurse’s refutation of a physician’s order that she believes would cause harm
- Public policy concerns for a board’s infringement on a nurse’s duty to exercise professional judgment
- The distinction between errors in judgment carried out in good faith versus malpractice and related degrees of appropriate penalties
- The discipline of the exercise of nursing judgment and the resulting detriment to future patients in need of nursing advocacy
Once again, TAANA is proud not only to advocate excellence and support the profession of nursing, but to commend the excellent work of fellow nurse attorneys and TAANA members, Diane Warlick and Phyllis Gallagher.
To view the Amicus Brief in its entirety, CLICK HERE.
To view the Table of Authorities, CLICK HERE.