Intentional Educational Malpractice In America

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You must inform the patient of your discovery and ask him to refrain from using the bathroom until the light bulb is replaced.


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One can reasonably foresee that he may possibly need the use of the toilet and, unaware of the unsafe environment, fall in the dark. Offering a urinal, notifying the maintenance department and posting a sign on the bathroom door are all appropriate safety measures that can be instituted. The following example clearly illustrates the undesirable outcome of this type of omission.

Your patient is admitted with a pulmonary embolus and is subsequently placed on a heparin drip. A laboratory technician, unaware of the anticoagulant therapy, draws the standard blood tests ordered, but fails to apply the lengthy pressure necessary to control the bleeding. The patient begins to complain of pain at the antecubital region. In assessing the site you note the formation of a small hematoma. Over the next several hours the patient continues to complain of pain. Noting his complaints, you decide to wait until the results of the blood values are available before notifying the physician.

Upon receiving the values you discover that the partial prothrombin time is four times the normal level. Finally, you notify the physician of the lab results and the patient's complaints. An efficient action, you rationalize, because you are communicating the necessary information to the physician in one call, as opposed to having had to telephone him twice.

By this time the site is oozing continuously and the patient is complaining of numbness in the affected extremity.

A large hematoma has developed, encompassing the entire joint. Despite aggressive treatment, the patient ultimately suffers nerve damage. You are then alleged to be guilty of failing to observe and report, failing to communicate vital information to the physician and other disciplines laboratory technician , failing to recognize the signs of hemorrhaging, and failing to take the proper nursing interventions.

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Your breach of duty has concluded with patient suffering and a permanent disability. Your reputation and license are in jeopardy.

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Any significant change in a patient's condition should be immediately communicated to the physician. If that physician fails to take proper action after receiving the vital information notify your supervisor. Then document the conversations, times, and any witnesses in order to protect yourself. When it comes to patient safety, communication between the various healthcare disciplines must not only be conveyed, but also understood, documented, acknowledged and promptly acted upon.

Perhaps the most well known intentional tort is assault and battery.

Assault is the threat of an immediate infliction of an injury with the present ability to commit battery. Battery is the actual unprivileged touching of another person. For example, you are dealing with an uncooperative geriatric patient. This is an example of an assault. If you do actually apply the restraints as a punitive measure you have committed battery. Punitive damages may be awarded for any claims involving intentional torts.


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With an assault, the threat of inflicting harm must be believable, thereby creating reasonable apprehension. In a situation where a robber holds a knife to a victim's throat, threatening to kill her if she doesn't give him all of her money, the threat of injury is very real and credible. Conversely, if a mother tells her child that she is going to "break both of his legs" if he does not remain seated while riding on a bus, the child understands that his mother is only speaking in anger and has no intention of actually carrying out the threat.

An assault creates a mental disturbance that promotes an instantaneous feeling of apprehension that a battery is going to be committed. Threats to commit future wrongdoings do not constitute an assault because they fail to instill the immediate apprehension element. Examples of mental disturbances are fear, humiliation, or intimidation.

Nurses may be guilty of assault by threatening to force feed anorexic patients or threatening to restrain or sedate uncooperative patients. Battery is not categorized as an intentional tort based on the intent of harm. Rather, from a legal viewpoint, it is a civil wrong because the touching was unconsented and unpermitted. Most instances involving battery deal with physicians and uninformed consent, where a non-emergency operation or procedure is performed without the patient's full knowledge or consent.

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A claim of battery is applicable in a situation where a surgeon obtains consent for a breast biopsy and, discovering the tumor is malignant, performs a mastectomy at that time. Consent to perform a specific procedure is limited to that particular procedure. As you already know, nurses have the ongoing responsibility of ensuring patient safety. One of the ways a nurse may need to safeguard a patient is by the use of restraints.

Physical restraints may be applied with or without a physician's order, providing they are warranted.

Introduction to Intentional Torts and Negligence

The only time restraints are legally permissible is when they are applied for protective purposes. If you restrain a patient because you believe him to be dangerous, either to him or others, you are acting within your legal bonds. However, if you are applying restraints for the sake of convenience there isn't enough staff for proper monitoring or as punishment for being uncooperative then you are guilty of false imprisonment, or the intentional, unlawful, unconsented restriction of movement and freedom.

Legally, a nurse can restrain a patient before obtaining a physician's order, if the lack of restraint would result in the endangerment of any person. This would be evident if a patient suddenly became belligerent and physically abusive. When finding yourself in this situation proceed with the application of the restraints. Then promptly notify the physician of the patient's condition to obtain a valid restraint order. When alleging that a nurse falsely imprisoned a patient, that person must show that the nurse intended to confine him.

He need not prove that the nurse intended to cause harm or injury. Punitive damages are recoverable. The confinement must always be against the patient's will. It is unlikely that a psychiatric patient who voluntarily commits himself to an institution will later be able to prove false imprisonment, as voluntary agreements for restraint are based upon consent. Physical restraints do not alleviate the responsibility of monitoring a patient; they actually augment it. The patient's mental, respiratory, integumentary, and circulatory statuses require frequent assessment.

The affected extremities need to be checked every two hours for adequate pulses, color, motion, and sensation.

Educational Malpractice: should access to justice continue to be limited? – Sigurdson Post

The restraints themselves must be ideally released for at least five minutes every two hours , minimally once every eight hours. Do not tie a restraint to a movable side rail where injury can result from use of the apparatus. Instead, tie them to the stationary bed or chair frame, well out of the patient's reach. Use only those knots that can be untied quickly in case of an emergency, not those so complicated they require several minutes to release.

Before tying, flex the joint " to allow for limited movement. The goal is to protect the patient from injury, not to completely restrict all movement. When using a waist or vest Posey restraint you should allow a space large enough to comfortably fit your hand in between the material and the patient. Again, frequent respiratory and integumentary assessments are necessary.

Always check for adequate breathing excursion and chest expansion, areas of friction and skin breakdown, and, if the patient is alert, subjective complaints of pain. These important assessments should be performed every two to four hours. It is imperative to make on-going assessments as to the need for continuous restraints. Discontinue them as soon as the threat of harm is over. Otherwise, you may be liable for false imprisonment because, although once a necessity, the restraining devices are no longer justified.

Document why the restraints are needed, the times of initiation and discontinuance, patient behavior, the type of restraint applied, the frequency of pertinent body system assessments, and any nursing interventions range of motion exercises, frequency of releases, attempts to orient, etc.

Finally, note that restraint doesn't exclusively refer to physical retention by use of equipment; it may take the form of intimidation to achieve compliance. It is unlawful to refuse to discharge a patient due to lack of payment for services rendered, detain a patient wishing to sign out against medical advice AMA , or unnecessarily detaining patients in a healthcare institution because of their medical condition psychiatric patients not posing a threat to themselves or others. When dealing with AMA patients it must be remembered that usually they are dissatisfied with their treatment and care.

They feel more is "owed to them", and that their hospitalization lacks the proper attention, choice of treatment or information. Their method of coping with this stressful situation is to leave the premises. It is usually the nurse who first discovers the discontentment and intention to leave. The nurse's duty lies in attempting to discuss the situation, risks, consequences and alternatives with the patient.