Legal Responsibilities of Nurse Supervisors

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Although a nursing supervisor is liable for her own negligent acts, the employer is liable for the negligent acts of all employees, including nursing supervisors. Supervisors are not generally liable under the doctrine of respondent superior for the negligent acts of those being supervised, unless they can be shown to be independently negligent in how they supervise or fail to supervise. They have the right to direct the nurses who are being supervised. In a health care facility, the supervisor’s powers are derived directly from the facility’s right of control.

A supervisor who knowingly fails to supervise an employee’s performance or assigns a task to an individual he or she knows, or should know, is not competent to perform can be held personally liable if an injury occurs. The employer will be liable under the doctrine of respondent superior as the employer of both the supervisor and the individual who performed the task in a negligent manner. The supervisor is not relieved of personal liability even though the employer is liable under respondent superior.

In determining whether a nurse with supervisory responsibilities has been negligent, the nurse is measured against the standard of care of a competent and prudent nurse in the performance of supervisory duties. Those duties include the setting of policies and procedures for the prevention of accidents in the care of patients.

I. Failure to Properly Supervise.

Nursing supervisors must properly supervise the care rendered to patients by their subordinates.

A. Special Duty Nurse.

A special duty nurse is a nurse hired by the patient or the patient’s family to perform nursing care for the patient. An organization and its supervisors are generally not liable for the negligence of a special duty nurse unless a master-servant relationship can be determined to exist between the organization and the special duty nurse. If a master-servant relationship exists between the organization and the special duty nurse, the doctrine of respondent superior may be applied to impose liability on the organization for the nurse’s negligent conduct.

Like a staff physician, a special duty nurse may be required to observe certain rules and regulations as a precondition to working in the organization. However, the observance of organization rules is insufficient to establish a master-servant relationship between the organization and the nurse. Under ordinary circumstances a special duty nurse is employed by the patient, and the organization has no authority to hire or fire the nurse. The organization has the responsibility to protect the patient from
incompetent or unqualified special duty nurses.

B. Student Nurses. 

Student nurses are entrusted with the responsibility of providing nursing care to patients. When liability is being assessed, a student nurse serving at a health care facility is considered an agent of the facility. This is true even if the student is at the facility on an affiliation basis. Student nurses are personally liable for their own negligent acts and the facility is liable for their acts on the basis of respondent superior. Students must be supervised by a registered professional nurse who is either the direct agent of the student’s nursing school or one who has been designated by the school to serve in that capacity. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts, in several decisions, have taken the position that anyone who performs duties customarily performed by professional nurses is held to the standards of professional nurses. Each and every patient has the right to expect competent nursing services even if the care is provided by students as part of their clinical training. It would be unfair to deprive the patient of compensation for an injury merely because a student was responsible for the negligent act. Until it is demonstrated clearly that student nurses are competent to render nursing services without increasing the risks of injury to patients, they must be supervised more closely than graduate nurses.

II. Unlicensed Assistive Personnel.

Every time you delegate tasks to unlicensed assistive personnel (UAPs), you’re legally accountable for the outcome. What can you do to reduce your malpractice risk? Here are some tips:
1. Assess the patient’s needs, the staff available to meet those needs, and the
level of supervision required for a UAP to safely perform any task you
delegate;

2. Know the training and qualifications of the UAPs you supervise;

3. Assign the right person to carry out a task, based on her competence and
the patient’s condition;

4. Provide clear directions for the task you want performed. Ensure that the
UAP understands your expectations and knows to ask for help if questions
or problems arise;

5. Monitor the UAP’s performance of the task and the patient’s response; and

6. Accurately document the care provided.

Once a UAP is hired, the supervisor must delegate tasks appropriate to the UAP’s training,
credentials, and experience. If the tasks exceed the UAP’s competency level, the employer may be liable for negligent training. Furthermore, under the theory of vicarious liability nurses, physicians, facilities, or agencies may be held responsible for UAPs’ actions. In essence, a supervisor is liable if she assigns inappropriate tasks to anyone who lacks the skill or training to perform them. A good way to prepare UAP’s is to provide standardized training or testing in basic skills and to assign only tasks in which the UAP’s have shown competency.

III. Inadequate Staffing.

Health care organizations must continuously monitor their staffing needs in order to provide adequate care. The organization’s leaders, including nurse supervisors, define for their respective areas the qualifications and job expectations of staff and to evaluate the degree to which expectations are satisfied. Under federal law nursing facilities must have sufficient nursing staff to provide nursing and related services adequate to attain and maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident, as determined by resident assessments and individual plans of care. Nursing facilities must provide 24-hour nursing services that are sufficient to meet the total nursing needs in accordance with patient care plans. 42 C.F.R. § 483.20 (1989). As nursing facilities are increasingly filled with older, disabled residents with ever-increasing complex care needs, the demand for highly educated and trained nursing personnel continues to grow. Inadequate career ladders and wage scales lower than those found in acute care hospitals, make it difficult for long-term care facilities to attract nurses.


Nursing Law Manual.

This blog post came from The Florida Nursing Law Manual.

The Florida Nursing Law Manual and the forms and information contained in it is for general information and education only. It is not intended to be and does not constitute the provision of legal advice. Every case, every individual, and every set of circumstances is different. You should always consult with your own attorney when making any legal decision. We recommend that you only use an attorney who is Board Certified by the Florida Bar in the Legal Speciality of Health Law and who is experienced in the legal matters at issue.
Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

New Immigration Law in Georgia Slows Down License Renewal Process for Doctors and Nurses

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Hundreds of Georgia health providers are without a professional license to practice, because a new immigration law is causing massive backups in paperwork, according to a number of sources. The Illegal Immigration Reform and Enforcement Act of 2011 or House Bill 87 went into effect on January 1, 2012, and requires every person to prove his or her citizenship or legal residency when the individual renews his or her license.

To read House Bill 87 in its entirety, click here.

With all of the extra paperwork required and too few staff members at the reviewing state agencies, many licenses are expiring before they can be renewed. Shortages of staff are being reported at the Georgia Secretary of State’s office and Georgia’s Medical Board. Licenses being affected include licenses for doctors, nurses, pharmacists and other health providers are falling through the cracks and expiring. According to a Kaiser Health News story released November 12, 2012, there’s not much that can be done to speed up the process.

So Far Georgia House Bill 87 Is Creating Confusion and Issues for Citizens.

Georgia House Bill 87 was aimed at blocking illegal immigrants from getting benefits but instead has created lots of confusion, according to an article in the Atlanta Journal-Constitution. For example, when people are confused about the requirements and fail to not submit copies of acceptable identification, then their professional licenses expire and they are not legally allowed to practice.

It is reported that some individuals, instead of forwarding copies of photo identification, are sending photos of animals or pornography into the state’s online system. Officials believe this is either a form of protest or a joke, either way it slows down the review process.

To read the article from the Atlanta Journal-Constitution, click here.

Providers Be Aware of Medicare Conditions of Participation.

Providers need to be forewarned that if their licenses are expired Medicare conditions of participation (COPs) prohibit billing for services provided. If a service was provided while the license was expired, be prepared to refund the overpayments.

Around 1,300 Doctors and Nurses Cannot Practice Due to Incorrect
Paperwork.

Last year, the secretary of state’s office received more than 49,000 new applications for licenses and since 2008 the state licensing division has lost almost 40 staff members.

According to the Atlanta Journal-Constitution, the average time it takes for the state to process new license applications has jumped from 60 days to 70 days. The same goes for renewal applications. It used to take two days to renew a license, but now it takes 10 days.

According to Kaiser Health News, it’s estimated that 1,300 doctors, nurses and other health professionals have lost their ability to work either because they did not send in the correct paperwork, or they are stuck in the backlog of work.

The same article stated so far the new document requirements have yet to find any illegal immigrants.

Click here to read the entire article from Kaiser Health News.

Georgia Nursing and Pharmacy Associations Warning Members of Delays.

The Georgia Nursing Association and the Georgia Pharmacy Association are monitoring this situation closely. The pharmacy association has been informing members about the new identification requirements and urging them to not put off applying for their licences.

Click here to see a warning about the process from the Georgia Pharmacy Association.

Contact Health Law Attorneys With Experience Handling Licensing Issues.
If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career.  Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, pharmacists, medical groups, clinics, and other healthcare providers in personal and facility licensing issues all over the country.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health professional what   do you think about this new law in Georgia? Do you think it is ridiculous or a necessary process? Please leave any thoughtful comments below.

Sources:

Burress, Jim. “Doctors’ And Nurses’ Licenses Snagged By New Immigration Law In Georgia.” Kaiser Health News, WABE, Atlanta and NPR. (November 12, 2012). From: http://www.kaiserhealthnews.org/Stories/2012/November/12/Georgia-immigration.aspx

Redmon, Jeremy. “New ID Law Gums Up Licensing Process.” The Atlanta Journal-Constitution. (October 15, 2012). From: http://www.ajc.com/news/news/new-id-law-gums-up-licensing-process/nSc6g/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.