Who is liable? The nursing home or the nurse?

[violas]

What is the name of your state (only U.S. law)? Florida. My friend said that at her job, a nursing home she wants to always follow the doctors orders in regards to changing dressings on patients who have bedsores. However, the nursing home sometimes doesn't have the neccessary nursing supplies in order to change the dressings as ordered by the doctor. The nurse has told her supervisor about this problem but still the problem exists. What should the nurse do to protect herself from getting sued?

 

[OHRoadwarrior]

Advise the doctor of her inability to comply due to material shortages.

 

[violas]

She said she will get fired if she calls the doctor

She said that being short of dressing supplies is suppose to be a secret at the nursing homes. She said that running out of supplies for bedsores occurs regularly at most nursing homes. She said it took her 6 months to even find a job and she cannot afford to quit her job because there are a shortage of nursing jobs where she lives.

 

[ecmst12]

Well, she should carry private liability insurance to protect herself, it's cheap as heck, less than $100 per year. But what did you learn in nursing school? Document, document, document. This is not a question you should need to be asking here.

 

[commentator]

How is requesting proper materials to do her job the same thing as quitting her job? And it is totally silly to say she'll be fired on the spot if she requests the materials.

To me sitting there not saying anything would be the more dangerous and least responsible path, the one most likely to get her prosecuted for incorrectly performing her duties.

Because if someone dies or gets terribly ill due to the bedsores not being treated correctly, and it is shown that she did the bedsore treatments without the proper materials, and she has said nothing, registered no complaints to the facility, they'll just say they had no idea the proper supplies were not available, and she should have told them, they'd have fixed it if she'd only done that.

She needs to make her needs clear to management, 'dirty little secret' and fear of losing my job be darned. That's the way to be a professional.

The best way to resolve problems like this is to begin at the bottom...lowest level possible. And keep clear records of when she has spoken to someone to try and resolve the problem. If she can't make any improvements at this level (particularly if she is in any way discouraged from asking or threatened with firing or repercussions for asking) then she should move on to the next level. Speaking to the doctor would probably be this next level. Then there are other levels. There are regular inspections of nursing homes, and in most states there are very clear cut regulations and there are avenues for whistleblowers to call the inspectors anonymously.

But if she behaves like a professional, and without threats ("I'm going to quit this job if I can't get the proper dressings for these bedsores!")
and clearly informs management that there is a problem, asks them to address the problem, tells them that she is going to speak with the doctor if she can't get it solved and the implication is that she may take it higher if she doesn't get some better material to work with, the facility managers just may decide to give her what she wants and try to slice costs somewhere else. They know all about the review and the regulations they function under.

They're in business to get by with as little spending as possible and to make as much money off the business as humanly possible. But for now, anyhow, there are federal government and state regulations about conditions in nursing homes. She doesn't want to be found keeping silent while those standards and regulations are neglected or violated on her watch. That's not what she agreed to do when she became a nursing professional. And that's ultimately the action that could get her in legal trouble.

If they threaten to fire your friend for asking for material, she should still behave like a professional, respond by saying, "You'll just have to do whatever you feel you have to do..." and continue to do her job to the best of her abilities. She certainly shouldn't up and quit the job, or even offer to quit. They probably won't be foolish enough to blatantly fire someone for anything like asking for adequate supplies, and if they did, she'd definitely be qualified for unemployment insurance benefits while looking for another job (allowing she's been working in the past couple of years and has the monetary eligibility.) She should be looking for another job anyhow, while working if this is such a cut rate place that she can't get adequate materials to do her job in compliance with state regulations.

 

[OHRoadwarrior]

I won't mention the issue about how it is so many residents are getting bed sores.

 

[ecmst12]

Bedsores are sometimes unavoidable, and sometimes due to insufficient care.

The other thing the nurse should be aware of, is that her employer insures her care as well, so even if she doesn't have private malpractice insurance to back her up, the employer will cover her if she is named in a lawsuit. The nurse will pretty much always be NAMED in any lawsuit, but rarely will be the primary liable party in a suit, because of the scope of practice. They will name every caregiver that participated in the patient's care, but not all of those will remain involved through trial (if it even gets that far).

 

[tranquility]

Intentionally not following a doctor's orders and failing to inform the doctor of such in regards to a compromised patient is more than malpractice. Sure, it's malpractice. But, it also may be a crime.

 

[ecmst12]

That's not what's happening here. And if the nurse documents in the chart, attempted to change dressing but was unable due to shortage of XX supplies, informed supervisor of need, with the date and time, every time she is unable to change a dressing on time, she is covered. She is not expected to pay for the supplies out of her own pocket. And either way, she's not "intentionally not following a doctor's order".

 

[tranquility]

That's not what's happening here. And if the nurse documents in the chart, attempted to change dressing but was unable due to shortage of XX supplies, informed supervisor of need, with the date and time, every time she is unable to change a dressing on time, she is covered. She is not expected to pay for the supplies out of her own pocket. And either way, she's not "intentionally not following a doctor's order".

The nurse is not following the doctor's orders and is afraid to tell the doctor because she might lose her job. Telling the supervisor would not relieve her of her criminal liability if she is the nurse that is supposed to provide the care. I don't think you understand the legal term "intentionally".

 

[commentator]

Intentionally or not, I think she's being downright goofy foolish if she doesn't report it and ask and speak up because of her fear they'll fire her.

 

[ecmst12]

If it's in the chart, then she informed the doctor. If she does NOT document properly, then she SHOULD be fired.

 

[tranquility]

368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having
the care or custody of any elder or dependent adult, willfully causes
or permits the person or health of the elder or dependent adult to
be injured, or willfully causes or permits the elder or dependent
adult to be placed in a situation in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed six thousand
dollars ($6,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or dependent
adult, willfully causes or permits the person or health of the elder
or dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed two thousand dollars ($2,000), or by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years, or by
both that fine and imprisonment, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment, when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years, or by
both that fine and imprisonment, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment, when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.

I don't see the chart exception here. Must be in another section.

Now, shall we consider the crime without intent, criminal negligence?

 

[tranquility]

Heck, as long as we're here (in part, the law is quite long):

WELFARE AND INSTITUTIONS CODE
SECTION 15630

15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect, or is told by an
elder or dependent adult that he or she has experienced behavior,
including an act or omission, constituting physical abuse, as defined
in Section 15610.63, abandonment, abduction, isolation, financial
abuse, or neglect, or reasonably suspects that abuse, shall report
the known or suspected instance of abuse by telephone or through a
confidential Internet reporting tool, as authorized by Section 15658,
immediately or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report
shall be made through the confidential Internet reporting tool
established in Section 15658, within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.

 

[tranquility]

Oops, my mistake. I would delete both the above posts, but decide to leave up my error. For some reason I thought this was in my state and not Florida.

Without researching, I admit Ecmst12 may very well be correct per Florida law.