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Could performing an MSE get an ED nurse sued?
Nurses potentially can 'get into some serious trouble'
[Editor's note: This is the second of a two-part series on medical screening examinations (MSEs) performed by emergency nurses. This month, we cover the potential liability risks of nurse-performed MSEs and how to avoid legal problems. Last month, we reported on benefits seen by two EDs that have implemented this practice.]
If an appropriately trained ED nurse can legally meet the criteria to perform medical screening examinations required by the Emergency Medical Treatment and Labor Act (EMTALA), why don't more EDs have nurses doing this? Very likely, it's because of the potential liability risks.
"The idea of using staff nurses to perform screening makes me uncomfortable from a liability standpoint," says Patricia Iyer, RN, MSN, LNCC, president of Flemington, NJ-based Med League Support Services, a legal nurse consulting firm specializing in malpractice and personal injury cases. "I can see the practice morphing into what could be construed as the practice of medicine."
Nurses are not permitted by license to make medical diagnoses, notes Iyer, who adds that a patient who is seen by a triage nurse and a physician receives "two layers of protection." "To let a patient go out the door without being seen by a physician sounds risky to me, unless the health care provider was a nurse practitioner who is specifically and extensively educated for this role," says Iyer.
A nurse with excellent critical thinking skills might function well in this role and be appropriate a large part of the time, but still is likely to run into a situation beyond his or her skills, says Iyer. "Relying on gut feelings is not enough," says Iyer. "The nurse without excellent critical thinking skills could get into some serious trouble by overlooking signs and symptoms that warrant a physician exam. My conclusion is that the plaintiff attorneys could have a field day with the practice when the bad outcome occurs."
Mary Ann Shea, JD, RN, a St. Louis-based attorney at law, registered nurse, and former emergency nurse, says that when she hears about this practice, "the alarm that goes off for me is to be very careful to not set oneself up for an allegation of patient abandonment."
However, Shea says that this risk can be avoided by having clear guidelines for how to function in this role, thorough education of all staff performing MSEs and those involved in the process, meticulousness by the nurse in following all the guidelines, and "exercising good, sound nursing judgment at all times."
Shea says the key to surviving any legal challenges to the appropriateness of the recommended treatment includes clear, thorough and complete documentation of the following:
"Remember, it is not necessarily a deviation from the standard of care to channel a patient to a different level of service," says Shea. "It would be a deviation to deny necessary treatment without providing viable options."
If appropriate options are provided and the patient rejects those options, Shea says that the risks of refusing treatment must be explained. Your documentation also should make it clear that the patient was made aware of the risks of refusing the treatment recommendations.
Requesting a copay for nonemergency treatment requested in an ED is not a deviation from the standard of care, if the patient voluntarily has chosen this option over other treatment recommendations that were available and feasible, Shea says. "Always avoid any situation, or the appearance of any situation, in which the payment method might appear to be dictating the level of service recommended," says Shea. "Denial of necessary treatment due to inability to pay is never acceptable in an ED setting."