The first article of this two-part series focuses on what has to be proved by an injured patient if a practice nurse is to be legally liable to pay them damages. The article dispels some of the myths and misconceptions which have for years perpetuated inaccuracies in nurse education, and which have caused innumerable nurses to be unnecessarily scared of this part of the law.
What is indemnity?
To indemnify someone against something is to mitigate the adverse financial consequences of a legal liability claim brought successfully against a practice nurse. It will most often be a claim by an injured patient, though it might, in certain circumstances, be made by a relative or by a person financially dependent on the injured patient. The adverse financial consequences of even a criminal act— which in our present context means a finding of gross negligence manslaughter— may be indemnified, though of course the criminality of the act will remain, along with the penalties it carries with it.
Certain acts, including for instance fraud or sexual harassment, cannot be legally indemnified due to that part of the law of contract (here, the contract of indemnity insurance) which prohibits agreements that are found by the courts to be ‘against public policy’. That is to say, they are socially and therefore legally unacceptable.
The example of sexual harassment, or of sexual assault, is by no means as far-fetched as it might sound. Later this month (November 2019), the Supreme Court of the United Kingdom is due to hear a case in which a GP, now deceased, sexually assaulted female patients—one as young as 15 years old—in the course of medical examinations on behalf of a company to which he contracted his services. He was not employed by the company, as he was what the law calls an independent contractor. If the case is decided against the company, the matter of who is to pay compensation to the claimants will take centre stage once the legal proceedings have ended.
To indemnify someone against something is to mitigate the adverse financial consequences of a legal liability claim brought successfully against a practice nurse
The legal fiction underpinning an award of money as a consequence of a finding of legal liability (or, more often, of an out-of-court settlement between claimant and defendant) is that the award is as near as money can get to putting the injured person back into their pre-accident position. The legal reality of indemnifying the person responsible for the injury is that the monetary compensation does not come out of their own pocket but out of the insurer's pocket. The practical working and logistics of nursing indemnity insurance and the range of bodies who provide it will be examined in part two of this article.
What is indemnified against?
We concentrate here on injury caused by negligence, by far the commonest case. The injury to the patient is the damage and the monetary compensation is the damages.
To start with there has to be a sufficient legal connection between the claimant and the defendant. This is what the law calls a ‘duty of care’. This is sometimes mis-stated in nurse education, and even in nursing literature, as a ‘duty to care’. No practice nurse needs telling that they should care for patients. The legal term ‘duty of care’ is not a fact but a concept, used to form a link between the treater and the treated. By it, the two are linked and one becomes obligated, in law, to the other (from the Latin ‘ligare’, to tie, link or bind—hence ‘binding’ obligation).
In the general practice setting the situation of a binding link between treater and treated is obvious. In situations outside the confines of the practice it may be less than obvious. Where, for instance, does a practice nurse stand on a domiciliary visit to a patient registered with the practice during which the patient's husband is suddenly taken ill? He may well be a patient of the practice, but he may not be.
What, if any, are the practice nurse's legal obligations to him? They may naturally wish to help, but can they do so in the knowledge that their own legal position is safe when ensuring the gentlemen in question is receiving appropriate clinical care? Each and every case will depend on its own particular circumstances. But, on the whole and without in any way seeking to offer legal advice, the preferred tendency would be to act rather than not to act. A lot will depend on the nature of the condition presented and the apparent urgency of clinical intervention.
The Good Samaritan
It is worth adding a note on so-called ‘Good Samaritan’ cases which achieved notoriety in the United States some years ago and which formed the story line in a number of medical dramas.
The parable of the good Samaritan is as follows [Luke 10:25-37]: a man was set upon by robbers and left badly injured. A priest and a Levite passed him by and did nothing to help. Along came a Samaritan who tended to the injured man. We are not told the eventual outcome, but the moral of the tale is that it is preferable to help an injured stranger rather than to walk by.
In UK law there is, in general, no legal obligation to go to the assistance of another—to be a Good Samaritan. There are obvious exceptions to this general rule. One is that a hospital or healthcare service which has accepted a person as a patient owes that person a duty of care to take positive steps to assist them. That duty is owed by the organisation (e.g. hospital trust, or general medical practice) as well as by the practitioners who work within it. The content of the duty is to act reasonably according to acceptable professional standards. Very occasionally a legislature may impose a positive duty to act, as in Ontario, Canada, where a period of serious forest fires prompted the state legislature to place an obligation to act, but only in strictly defined circumstances.
‘The legal term ‘duty of care’ is not a fact but a concept, used to form a link between the treater and the treated. By it, the two are linked and one becomes obligated, in law, to the other.’
The common law (law made by judges in decided cases of litigation) in the US is the same as it is in the UK, having been derived from English law some two-anda-half centuries ago. But the ambience of how the procedures of the law work in practice in the US tends to be more litigious—people are more willing to sue. Or, rather, lawyers are more willing to encourage them to do so. This is due in large part to the contingency fee arrangement whereby a successful claim nets the lawyer an agreed percentage of the damages awarded. Such arrangements are not permitted in the UK.
In the US during the period spanning the 1950s to the 1970s there was a slew of lawsuits against hapless helpers of accident victims. Some claims were brought against such helpers in preference to being made against the perpetrator of the harm on account of varying dependability of insurance policies across different states. This could not happen in the UK. Some were just ‘gold digging’, an undesirable but ever-present fact in litigation.
A caveat should be entered here. By becoming a Good Samaritan the volunteer helper takes on a legal duty to act reasonably in the circumstances. Given that the standard of care is likely to be quite a low one in most conceiveable circumstances, this gives the volunteer helper little or nothing to worry about. It is quite different from a situation in which an inadequately experienced practitioner undertakes a procedure which causes harm to a patient. That is a question which may involve staffing levels, and may be worth examining on a future occasion.
One could add at length to the permutations of the ‘volunteer’ situation under scrutiny, but one more such permutation might be in order. What if the person suddenly taken ill during the practice nurse's visit was a family friend who had just stopped by, or a perfect stranger who had gone to the wrong house? There is no specific legal reason why the same considerations as were mentioned above should not apply, perhaps extending to a situation where a practice nurse sees a perfect stranger knocked down by a car. As a general rule, both in law and in common sense, seek expert assistance so long as there is time and if the geography of the circumstances permits.
Which brings us naturally to the next point in our analysis: what are the most common causes of negligence actions against health professionals?
A common cause of negligence actions: delay in diagnosis
A common source of allegations of clinical negligence is delay in diagnosis. This represents a serious concern for practice nurses, for two principal reasons. The first cause for concern is that, increasingly, the practice nurse is the first person who will meet a patient who presents with a malady. The second is that, in recent years, problems of the numbers of staff, or the lack of them, have led to increasingly stretched resources.
This is not the place to go into the falloff in the number of nurses in the UK during recent years, save to say that it has been alarming. It almost goes without saying that inadequate staff numbers leads to an increased chance of things going wrong.
‘Performance’ in clinical care
One comes across statistics from time to time which purport to show the ‘best performing’ hospital trusts, commissioning groups or other bodies delivering healthcare services. They almost always cite the low incidence of negligence claims against staff.
This is truly misguided. For one reason, the incidence of negligence actions against any organisation, be it healthcare or otherwise, is almost always a matter of chance. For another, how many people who read these statistics are going to up sticks and move to an area with a lower incidence of clinical negligence?
This fixation with statistics, especially the negative ones, started with Margaret Thatcher's obsession with ‘competition’. Healthcare providers do not compete with each other: they do their best within the financial constraints available. Healthcare is a value, not a commodity. This terminology should be confined to the market economy. It is unsuitable for use in a healthcare context.
Causation
To put it at its bluntest, you can be as negligent as you like so long as you don't hurt anyone. I do not recommend this as a prescription for life, far less for professional healthcare practice. But it is a fair and accurate statement of the law relating to negligence in professional practice.
One reads time and again in nursing and medical literature that a careless action by a nurse which results in harm to a patient will give rise to a legal action (lawsuit, in American) against the nurse. It will most definitely not do so.
The essential link between a careless act and harm to the patient is that one has caused the other. Without this, it wouldn't get to court and wouldn't get legal aid or assistance even to try.
That things are otherwise is written in healthcare publications galore, both on this side of the Atlantic and in the US. It is irresponsible and should not be allowed. It does no good to the morale of health professionals.
The most important legal decision on causation
In one of the most important clinical negligence cases ever decided by the highest court in the land, Wilsher v Essex Area Health Authority (Fn: [1988] AC 1074), James Badenoch QC argued successfully on behalf of the defendant health authority that, while the inexperienced doctor in charge of the case negligently over-oxygenated the baby with the result that he was severely harmed, it could not be proved on the balance of probabilities (more likely than not) that the inexperienced carelessness of the doctor had caused the injury. In the injured child's case the excess of oxygen eventually caused him to be blind. There was no doubt that the harm complained of had resulted from the actions of the doctor, but it had not been caused by it. In fact, according to the medical evidence cited in the case, there were at least four other possible causes for the injury suffered by the infant. The claimant's case accordingly failed.
Further limits on negligence liability
It is not enough for a successful negligence claim that the carelessness has in fact caused the harm or injury. It must also be proved that the adverse consequence was not too remote. UK law also stipulates that some consequences are to be excluded from legal liability because they are too far removed, either in time or space, from the act which is complained of.
For instance, in our example in which a practice nurse makes a domiciliary visit to a patient on the practice list, they might ask the patient's husband to go and find all the medications which the patient has been prescribed and which she is currently taking, and do so as quickly as he can because the nurse has a lot of other calls to fit in that afternoon. The husband is quick to help and falls over the dog, cutting his forehead on the sideboard. Is the nurse legally liable for the injured forehead? In a word, no. The nurse's instruction to do it in a hurry may be said to have caused the fall: but the injury caused by the fall would in law be too remote a consequence.
Conclusion
You can be as negligent as you like so long as it doesn't harm your patient. That is not an invitation. It's just the law. Given that the prospect of a negligence action may be one of a nurse's worst nightmares, it is time that some of the myths which surround legal liability were consigned to the bin. It does nurses nothing but harm and is no good for the quality and effectiveness of patient care.
The second part of this article will look at what it is, precisely, that indemnity indemnifies against. It may be quite a lot, but perhaps not always what you think it might cover.
KEY POINTS
- Fundamental misconceptions surrounding legal liability for negligence in clinical practice are harmful to practitioner morale
- Not every adverse consequence of a careless act in the delivery of healthcare is legally actionable
- It is only with a sound understanding of the scope of clinical negligence that indemnity for practice nurses can be properly understood
CPD reflective practice
- Did anything in this article surprise you?
- Does a concern that you might be sued affect the way you do your job?
- Were you ever taught during your professional education that a careless act which results in harm to a patient will justify a legal action against you?
- Are you reassured that your practice is covered by indemnity? Why in particular?