Hospital policies are adopted for the purpose of providing a safe environment and quality care to patients. They are also adopted as a means of preventing liability. It is becoming increasingly common, however, for policies to be used against health care facilities and providers when litigation arises. By applying a literal interpretation to a policy that does not provide any flexibility in its terms, the plaintiff is able to argue that the health care provider, by varying his or her care even slightly, violated the hospital’s own policy and was therefore negligent.
In medical malpractice cases, health care providers’ actions are judged according to the “standard of care,” broadly defined as “ordinary and reasonable” care under the circumstances. Even if acting within the standard of care, however, violation of a hospital policy is difficult to defend and can lead to a finding of negligence on the part of the provider. Though juries are instructed that the law in Nebraska requires expert witness testimony to establish the standard of care, conflicting opinions expressed by expert witnesses for the plaintiff and defendant may lead the jury to rely more heavily on written policies as evidence of the standard of care in that case.
One common problem occurs when the intentions behind the policies are not made clear. Most policies are intended to serve, not as mandates, but as general guidelines for the assessment, care, and treatment of patients. If policies are drafted in absolute terms, it leaves no room for clinical judgment or individualized care. Modification of care that in any way deviates from the terms of the policy will be considered a violation of the policy and, thus, evidence of negligence.
Another common problem results from the fact that health care providers in general do not strive to provide ordinary and reasonable care. They strive to provide the highest quality of care available to their patients, and their policies are written to reflect those goals. When the policies are used as evidence in litigation, there is a risk that the care at issue will not be judged by the minimum standards of care required by law, but according to the loftier goals espoused by the policies.
Some common allegations arising out of policies include:
- Nursing negligence in failing to adhere to a nursing policy.
- Physician negligence for violating the terms of a medical or hospital policy. The fact that the policy applies to nurses or other hospital staff does not always preclude a plaintiff from using the policy as evidence against the physician. After all, the plaintiff will argue that a medical staff committee did approve the policy and therefore adopted its contents as a standard of care for the hospital.
- Corporate negligence of the hospital in failing to adopt appropriate policies, failing to adequately train the staff with regard to those policies, and failure to implement them and evaluate their use.
Careful drafting of policies minimizes the risk of liability based on the provisions they contain. Some suggestions include:
- Create a statement to include with your facilities’ policies explaining how they are intended to be used;
- Allow sufficient flexibility in your policies to address the complexities of patient care;
- Define your terms (e.g., do not use terms such as standards, guidelines, policies, and procedures interchangeably, as they are not the same);
- Avoid absolutes such as must, shall, do not, unless you intend them as such (most circumstances allow for, or even demand, clinical judgment on the part of the health care provider); and
- Ensure that policies are consistent among different departments within the facility.
Having clearly defined policies will better serve the purposes of patient safety and quality of care. In the unfortunate event that litigation arises, it will minimize the risk of an adverse finding based simply on misinterpretation of the purpose and terms of the policies.