Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

The Three “P”’s: A Common Liability Problem

Jan Rebstock, RHIT, LHRM, CPHRM
Risk Manager/Loss Prevention Specialist University of Florida Health Science Center Self-Insurance Program8-2-1
Failure to follow, lack of, and inadequate Policies, Procedures and Protocols (the three “P”’s) are a common cause for citations and fines in regulatory surveys as well as a frequent liability in hospital and provider negligence claims.   While expert witness statements hold considerable weight in establishing whether or not a standard of care was met, policies, procedures and protocols, are regularly used by plaintiff attorneys as a primary resource in defining the parameters of practice.   The reason is that policies and procedures typically reflect industry standards as well as State and Federal law and regulations of accrediting agencies such as the Joint Commission. In effect, policies, procedures and protocols are an institutional barometer of what is considered to be appropriate and safe practice. One example would be the development and implementation of a facility policy requiring a “time out” before a procedure commences in an effort to prevent wrong person, wrong site and wrong procedures. The Joint Commission requires pre-procedure verification and use of a checklist which includes a “time out” immediately prior to starting a procedure in their Universal Protocol. A team pause prior to initiation of a procedure is also a Board of Medicine Standard of Practice (64B8-9.007) in the State of Florida. Another example would be a medication administration policy that requires verification of the 1) right patient, 2) right medication, 3) right dosage, 4) right route and 5) right time prior to giving a medication. These 5 basic rights are a recognized nursing standard of care and failure to administer medications and treatment in a non-negligent manner is also a basis for disciplinary action in the Florida Nurse Practice Act.   Consequently, it is extremely important that a hospital ensure that policies, procedures and protocols reflect the current established practice and that all staff receive adequate training about them upon initial hire and whenever they are updated or revised. Noncompliance should not be an option and any exceptions should be specified.   It is not unusual for a plaintiff attorney to establish that an employee has a duty to follow policies and procedures or that non-compliance should be a consideration in determining negligence or construed as a breach of the standard of care.  Depending upon the merits of a claim, losses due to noncompliance can easily extend to include regulatory fines, lack of reimbursement and can affect an organization’s accreditation status not to mention one’s own professional license.   Cases in Point:   Failure to follow emergency department policies in Barkes v. River Park Hospital Inc. (328 S.W.3d829; 2010 Tenn. LEXIS 1107) in Tennessee went all the way to the state Supreme Court in 2010 which upheld the lower court ruling resulting in a jury award of $7,206,907 for failing to enforce its policies and procedures in patient care. In this case, River Park had a written policy in effect that stated “Any patient arriving at the Emergency Department will be seen by the emergency department nurse, triaged and be seen by the appropriate physician… and “All patients presenting for treatment in the emergency room are assessed by an emergency physician”. The plaintiff, Mr. Barkes, had gone to the River Park Hospital emergency room after his left arm started hurting while working in the garden and clearing brush.  Mr. Barkes was triaged by a paramedic but not by one of the ED nurses and his medical screening examination was performed by a nurse practitioner and not a physician, though the NP did discuss Mr. Barke’s presentation, symptoms and diagnosis of “left forearm strain due to overuse” with the emergency physician on duty. The emergency physician agreed with the diagnosis and treatment and signed the discharge papers. Two hours after the patient went home, Mr. Barkes collapsed dead in his bathroom from an acute myocardial infarction. Both the nurse practitioner and emergency room physician testified that they were unaware of the hospital’s policy that every patient presenting to the ED be seen by a physician.   In May 2010, nine California hospitals received state fines ranging from $50,000 to $75,000 for noncompliance with licensing requirements that either caused or would be likely to cause serious injury or death to patients. All of the citations were due to policy and procedure noncompliance such as: failure to implement established policies and procedures for the safe and effective distribution and administration of medication; not following informed consent and surgical policies and procedures; not following facility policies and procedures for fall prevention and not following surgical policies and procedures for equipment cleaning.   In February, 2011, The Department of Health and Human Services settled with Massachusetts General for $1,000,000 for potential violations of HIPAA. The incident giving rise to the violation was the loss of protected health information of 192 patients (which included patients with HIV and AIDS) that was removed from Mass General’s premises by an employee who inadvertently left the information on a subway train which was not able to be recovered. In addition to the monetary settlement, Mass General agreed to develop and implement a comprehensive set of policies and procedure to ensure PHI is protected when removed from premises, educate workforce members on these policies and procedures and designate the Director of Internal Audit Services of Partners HealthCare System Inc. to serve as an internal monitor to conduct assessments of Mass General’s compliance and render semi-annual reports to HHS for 3 years.   Compliance with policies, procedures and protocols may not prevent a malpractice lawsuit but it can help prevent mistakes and help eliminate or mitigate employee liability.  A few risk management tips for development and implementation of the three “P”’s include:  

● Write them in an easily understood manner that leaves little room for misinterpretation yet allows some flexibility to exercise professional judgment in atypical circumstances.

● effectively communicate them to all staff who are expected to follow them.

● Ensure that they are readily accessible at all times to staff for reference purposes.

● regularly assess for compliance.

● Incorporate policy and procedure compliance into annual evaluations and/or include in annual competency checklists for those employees who have them.

● Review and update in a timely manner to ensure they reflect current practices.

● Maintain an archive of all previous editions by date. It often takes 3-5 years to litigate a case and it is important to have the policy and procedure that was in place at the time of an alleged event.

  References: http://ccn.aacnjournals.org/content/24/1/68.full http://www.lexisnexis.com www.healthcarefinancenews.com/news/nine-california hospitals-fined-licensing-violations http://www.hhs.gov/news/ press/2011pres/02/20110224b.html