The number of nurses involved in malpractice cases is high notwithstanding various efforts to edify them on the law and their expert duties. Medical and nursing literature shows that this observation can be attributed to inadequately competent nurses (Nickitas, Middaugh, & Aries, 2014), exhaustion of healthcare staff, inadequate supervision and entrustment, poor communication, noncompliance with conventional nursing practice, understaffing, and better-informed clientele (Westrick, 2013). The purpose of this discussion is to describe the legal and ethical implications of accepting assignments, factors to consider when delegating assignments to unlicensed personnel, and the legal principle of respondent superior.
Legal and Ethical Implications of Accepting Assignments
When assignments are accepted, two possible scenarios are possible: the assigned task may be completed appropriately or there may be errors in the execution of the allocated duty, which could lead to medical errors. These oversights could result in medical litigations as stipulated by the medical malpractice law, which should be a concern for every nurse because they are responsible for their own acts of negligence. Therefore, to minimize the risk of malpractice claims, nurses should have an in-depth understanding of their Nurse Practice Act, pertinent laws and authorized guidelines, organization rules, and relevant standards of care that influence daily clinical practice (Watson, 2014).
Medical errors can lead to a permanent injury or the death of patients, which goes against the ethical principle of nonmaleficence and beneficence. Therefore, nurses who are unfamiliar with the needs of specific patients have the ethical duty to decline to provide care (Westrick, 2013).
Consequently, nurses should practice only within the confines of their professional licensure. Only nursing skills permitted by the state and federal regulations as well as the respective state Nurse Practice Acts should be performed when an assignment is accepted. Additionally, nurses should acknowledge their strengths and shortcomings and conduct a self-evaluation to determine whether they possess the skill, know-how, and capability to execute the assignment. Any identified lack of skill ought to be stated before accepting the assignment (Westrick, 2013).
Considerations When Delegating Assignments to Unlicensed Personnel
Delegation may be defined as transferring authority to complete a given task to a competent person. Conversely, the term “unlicensed personnel” refers to workers who can be assigned nursing tasks but who are not authorized to perform nursing duties as specified by the nursing scope of practice. These workers include orderlies, nurse aides, patient care attendants, nurse technicians, and cross-trained staff (Westrick, 2013). The official name used to describe these workers is Unlicensed Assistive Personnel (UAP).
Before delegating any task, an advanced nurse practitioner should consider the knowledge of the UAP with respect to state statutes, state board rules, institutional policies, and the job description of the UAP. The nurse ought to assess the patient’s needs and decide whether the UAP is competent enough to meet those requirements. Additionally, tasks that require licensed providers should not be delegated. There should be clear communication regarding the time frame for completing the duty. Finally, the nurse should be able to supervise the execution of the delegated assignment and assess patient outcomes following the completion of the task (Westrick, 2013).
When delegating duties, the most probable form of liability is a vicarious liability, which is the accountability of one individual for the actions of another person or group of people (Anselmi, 2012). The nurse should consider the qualifications of the assignee and supervise every step of the allocated task to avoid vicarious liability through negligent entrustment and supervision, which is a legal relationship where superiors are tasked with supervising the work of their subordinates. In a clinical scenario, physicians and advanced nurse practitioners are expected to supervise the work of other personnel working directly under them, for example, medical students or nurse residents.
An insurance issue that may come into play is malpractice insurance. Employers’ liability for their employees is covered by malpractice insurance. However, workers have their own liability that is covered separately by their personal malpractice insurance. Therefore, before delegating a task, a nurse practitioner should ensure that they have their individual malpractice insurance with them in the event of any mishap.
The Legal Principle of Respondeat Superior
An employer/employee relationship can be proven if the employer can directly regulate or oversee another person’s work. This employer/employee relationship evokes vicarious liability and is referred to as respondeat superior, which means that the employer is held responsible for an employee’s careless acts. In other words, the employer is referred to as the principal, whereas the employee is the agent of the principal who is authorized to work in their best interests.
Respondeat superior allows a plaintiff to get back their losses from the offender’s employer (Anselmi, 2012). Hospitals are common defendants in nursing malpractice litigation because nurses are hospital employees (Watson, 2014). Furthermore, employers are financially capable of paying for their employees’ mistakes, which is considered part of the cost of doing business. Therefore, the establishment of respondeat superior warrants the use of vicarious liability as the legal scheme for a complainant to find relief following the occurrence of a tort (Anselmi, 2012).
Nurses are held responsible to the community for their expert judgment, conduct, and results of their actions. Therefore, to minimize liability, nurses must provide safe and skilled care. Important aspects to consider include identifying possible problems and risks their practice care areas and sustaining their competencies in technology and evidence-based practices.
Anselmi, K. K. (2012). Nurses’ personal liability vs. employers’ vicarious liability. MEDSURG Nursing, 21(1), 45–48.
Nickitas, D., Middaugh, D. J., & Aries, N. (Eds.). (2014). Policy and politics for nurses and other health professionals (2nd ed.). Boston, MA: Jones & Bartlett Learning.
Watson, E. (2014). Nursing malpractice: Costs, trends, and issues. Journal of Legal Nurse Consulting, 25(1), 26-31.
Westrick, S. J. (2013). Essentials of nursing law and ethics (2nd ed.). Boston, MA: Jones & Bartlett Publishers.