DOI: 10.1097/01.JPN.0000437185.24601.54
LEGAL ISSUES AND RISK MANAGEMENT Lisa A. Miller, CNM, JD
Scope of Practice and Scope of Employment What’s the Difference? ost nurses are familiar with the concept of respondeat superior, a legal doctrine that holds the employer responsible for acts of the employee. This doctrine is the basis of hospital liability for the acts of employed nurses. For respondeat superior to apply, the nurse must be employed (rather than an independent contractor) and must be working within his or her legal scope of employment at the time of the alleged act or acts of negligence. While most nurses are familiar with their hospital job descriptions, they may be unfamiliar with the legal concepts of scope of employment and scope of practice. These 2 legal areas may arise as issues independently or interdependently in perinatal and neonatal malpractice cases. This column provides a brief overview of both issues, along with advice for safeguarding practice.
M
SCOPE OF EMPLOYMENT VERSUS SCOPE OF PRACTICE Scope of employment, also known as scope of agency, is a legal term that relates to the actions an employee takes under the direction, or for the benefit, of the employer. In short, it is what you are hired to do by your employer. A hospital will be liable for the acts of its employed nurses unless the acts fall outside of the nurses’ scope of employment. The scope of employment limits hospital liability to those acts by nurses that are part of the job description or are usual and customary duties. This is rarely an issue in malpractice cases, but it may become critical in issues related to workers’ compensation claims or situations involving criminal actions by a nurse. Allegations such as sexual assault of a patient by a nurse have been held as being outside the scope Disclosure: The author has disclosed that she has no significant relationships with, or financial interest in, any commercial companies pertaining to this article.
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of employment1 and thus criminal and individual liability claims may be brought against the nurse, but the hospital will not be held liable, as such actions are not deemed to be within the scope of employment. Scope of practice is different. In each state, the scope of practice is set by statute, usually by what is known as a nurse practice act or nursing practice act. Every state has a unique nurse practice act that outlines the practice of nursing and differentiates it from the practice of other clinicians, such as physicians. Regardless of hospital policies, common practices, job descriptions, or physician orders, nurses are obligated by law to practice within the boundaries of their state’s practice act. To illustrate the difference between the 2 concepts, scope of employment and scope of practice, consider the following case scenario, based on an actual occurrence. A registered nurse (RN) trained to insert peripherally inserted central catheters followed hospital protocol for saphenous placement of a peripherally inserted central catheter and then ordered a radiologic study to confirm its proper placement. The RN read the radiologic film herself and missed evidence of misplacement. Because of the misplacement, the catheter migrated up the ascending lumbar vein. The error was not discovered (for multiple reasons, none germane to this column), and the eventual result was a child left with multiple neurologic defects and quadriplegia. The injuries all stemmed from the improper catheter placement and failure to identify the misplacement over an extended hospital stay. The case facts and issues that arose during discovery include both scope of practice and scope of employment. The hospital policy did not have clear guidelines on whether or not a physician was required to interpret radiologic films, and testimony during discovery revealed that it had been common practice for RNs placing peripherally inserted central catheters to also confirm placement by evaluating the radiologic film taken following placement. October/December 2013
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Thus, it was certainly within the scope of employment for the RN to read the follow-up film herself, but the plaintiff alleged that (1) it was a violation of the standard of care for an RN to read the radiologic film as the review should have been performed by a physician; and (2) it was outside the scope of practice under the nurse practice act. Plaintiff experts testified at deposition regarding the standard-of-care violation, but the evidence that may have hit the hospital the hardest was a letter from the state board of nursing confirming that reading radiologic films was the purview of a physician and not delegable to an RN, making the nursing actions clearly outside the nursing scope of practice. The hospital settled the case under a confidential agreement.
RISK MANAGEMENT RECOMMENDATIONS The aforementioned case illustrates the importance of understanding both scope of employment and scope of practice. The nurse may have been operating under the scope of employment, but reading the radiologic film was clearly outside the recognized scope of practice under state law. Hospitals and nurses must work together to ensure that job descriptions and policies are drafted in keeping with current standards of care. State nurse practice acts as well as medical practice acts should be reviewed and consulted prior to the delegation of typical physician responsibilities to a nurse, even a nurse with additional training. State laws regarding acceptable standards for advanced nursing practice must also be reviewed, as advanced nurse practitioners must understand both limitations on practice and delegable duties. Reviewing the state nurse practice act on a regular basis may yield information for nurses that will be helpful in situations where questions arise related to scope of employment versus scope of practice, especially in situations where a nurse is asked to perform duties outside of his or her area of expertise or training. In Oregon, the state board of nursing actually provides an algorithm for nurses to use when determining whether an act or task is within their scope of practice.2 The selfassessment questions include whether the nurse has received the appropriate training, possesses the requisite knowledge, and whether the act would be performed by a reasonable and prudent nurse, which is another way of asking whether the act or task is within the standard of care. The obvious intent of the algorithm is to provide a model for nurses to think about their
The Journal of Perinatal & Neonatal Nursing
actions within the context of nursing scope of practice. But discussions about scope of employment and scope of practice can be difficult, and nurses may not be prepared to speak up and ask for help from management when questions on these topics arise in the course of daily practice. Pressures related to time constraints, lack of clearly identified routes for questions regarding scope of practice or scope of employment, and fear of reprisals from colleagues who have followed the policy or procedure without question may result in hesitation on the part of nurse to raise concerns. Maxfield and colleagues3 have identified common roadblocks to effective communication that are prevalent in healthcare settings. They describe strategies for improving communication that include explanation of positive intent, avoidance of defensiveness, and the use of facts and data to clarify concerns.3 These proven approaches may facilitate culture and policy changes that protect both nurses and their patients, promote safer care, and diminish potential for error and liability issues resulting from such an error. Whether you are a nurse, nurse practitioner, or nurse manager, having a clear understanding of the sometimes-subtle differences between scope of practice and scope of employment can be crucial to patient safety. Reviewing the state nurse practice act, understanding and appropriately questioning job descriptions, work assignments, or delegated duties, and having communication skills that allow frank and open discussion will serve the individual nurse as employee and the hospital as employer, and ultimately (and perhaps more importantly) these actions will serve the patient. —Lisa A. Miller, CNM, JD Founder Perinatal Risk Management and Education Services Portland, Oregon
References 1. Piedmont Hosp, Inc, v Palladino, 276 Ga 612, 580 S.E. 2d 215 (2003). 2. Oregon State Board of Nursing scope-of-practice decisionmaking guideline for RN and LPN practice. http://www .oregon.gov/OSBN/pdfs/policies/scope_decision_tree.pdf. Accessed August 21, 2013. 3. Maxfield D, Grenny J, Lavandero R, Groah L. The silent treatment: why safety tools and checklists aren’t enough to save lives. http://www.aacn.org/WD/hwe/docs/the-silenttreatment.pdf. Accessed August 21, 2013.
www.jpnnjournal.com
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
285
LEGAL ISSUES AND RISK MANAGEMENT Lisa A. Miller, CNM, JD
Scope of Practice and Scope of Employment What’s the Difference? ost nurses are familiar with the concept of respondeat superior, a legal doctrine that holds the employer responsible for acts of the employee. This doctrine is the basis of hospital liability for the acts of employed nurses. For respondeat superior to apply, the nurse must be employed (rather than an independent contractor) and must be working within his or her legal scope of employment at the time of the alleged act or acts of negligence. While most nurses are familiar with their hospital job descriptions, they may be unfamiliar with the legal concepts of scope of employment and scope of practice. These 2 legal areas may arise as issues independently or interdependently in perinatal and neonatal malpractice cases. This column provides a brief overview of both issues, along with advice for safeguarding practice.
M
SCOPE OF EMPLOYMENT VERSUS SCOPE OF PRACTICE Scope of employment, also known as scope of agency, is a legal term that relates to the actions an employee takes under the direction, or for the benefit, of the employer. In short, it is what you are hired to do by your employer. A hospital will be liable for the acts of its employed nurses unless the acts fall outside of the nurses’ scope of employment. The scope of employment limits hospital liability to those acts by nurses that are part of the job description or are usual and customary duties. This is rarely an issue in malpractice cases, but it may become critical in issues related to workers’ compensation claims or situations involving criminal actions by a nurse. Allegations such as sexual assault of a patient by a nurse have been held as being outside the scope Disclosure: The author has disclosed that she has no significant relationships with, or financial interest in, any commercial companies pertaining to this article.
284
www.jpnnjournal.com
of employment1 and thus criminal and individual liability claims may be brought against the nurse, but the hospital will not be held liable, as such actions are not deemed to be within the scope of employment. Scope of practice is different. In each state, the scope of practice is set by statute, usually by what is known as a nurse practice act or nursing practice act. Every state has a unique nurse practice act that outlines the practice of nursing and differentiates it from the practice of other clinicians, such as physicians. Regardless of hospital policies, common practices, job descriptions, or physician orders, nurses are obligated by law to practice within the boundaries of their state’s practice act. To illustrate the difference between the 2 concepts, scope of employment and scope of practice, consider the following case scenario, based on an actual occurrence. A registered nurse (RN) trained to insert peripherally inserted central catheters followed hospital protocol for saphenous placement of a peripherally inserted central catheter and then ordered a radiologic study to confirm its proper placement. The RN read the radiologic film herself and missed evidence of misplacement. Because of the misplacement, the catheter migrated up the ascending lumbar vein. The error was not discovered (for multiple reasons, none germane to this column), and the eventual result was a child left with multiple neurologic defects and quadriplegia. The injuries all stemmed from the improper catheter placement and failure to identify the misplacement over an extended hospital stay. The case facts and issues that arose during discovery include both scope of practice and scope of employment. The hospital policy did not have clear guidelines on whether or not a physician was required to interpret radiologic films, and testimony during discovery revealed that it had been common practice for RNs placing peripherally inserted central catheters to also confirm placement by evaluating the radiologic film taken following placement. October/December 2013
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Thus, it was certainly within the scope of employment for the RN to read the follow-up film herself, but the plaintiff alleged that (1) it was a violation of the standard of care for an RN to read the radiologic film as the review should have been performed by a physician; and (2) it was outside the scope of practice under the nurse practice act. Plaintiff experts testified at deposition regarding the standard-of-care violation, but the evidence that may have hit the hospital the hardest was a letter from the state board of nursing confirming that reading radiologic films was the purview of a physician and not delegable to an RN, making the nursing actions clearly outside the nursing scope of practice. The hospital settled the case under a confidential agreement.
RISK MANAGEMENT RECOMMENDATIONS The aforementioned case illustrates the importance of understanding both scope of employment and scope of practice. The nurse may have been operating under the scope of employment, but reading the radiologic film was clearly outside the recognized scope of practice under state law. Hospitals and nurses must work together to ensure that job descriptions and policies are drafted in keeping with current standards of care. State nurse practice acts as well as medical practice acts should be reviewed and consulted prior to the delegation of typical physician responsibilities to a nurse, even a nurse with additional training. State laws regarding acceptable standards for advanced nursing practice must also be reviewed, as advanced nurse practitioners must understand both limitations on practice and delegable duties. Reviewing the state nurse practice act on a regular basis may yield information for nurses that will be helpful in situations where questions arise related to scope of employment versus scope of practice, especially in situations where a nurse is asked to perform duties outside of his or her area of expertise or training. In Oregon, the state board of nursing actually provides an algorithm for nurses to use when determining whether an act or task is within their scope of practice.2 The selfassessment questions include whether the nurse has received the appropriate training, possesses the requisite knowledge, and whether the act would be performed by a reasonable and prudent nurse, which is another way of asking whether the act or task is within the standard of care. The obvious intent of the algorithm is to provide a model for nurses to think about their
The Journal of Perinatal & Neonatal Nursing
actions within the context of nursing scope of practice. But discussions about scope of employment and scope of practice can be difficult, and nurses may not be prepared to speak up and ask for help from management when questions on these topics arise in the course of daily practice. Pressures related to time constraints, lack of clearly identified routes for questions regarding scope of practice or scope of employment, and fear of reprisals from colleagues who have followed the policy or procedure without question may result in hesitation on the part of nurse to raise concerns. Maxfield and colleagues3 have identified common roadblocks to effective communication that are prevalent in healthcare settings. They describe strategies for improving communication that include explanation of positive intent, avoidance of defensiveness, and the use of facts and data to clarify concerns.3 These proven approaches may facilitate culture and policy changes that protect both nurses and their patients, promote safer care, and diminish potential for error and liability issues resulting from such an error. Whether you are a nurse, nurse practitioner, or nurse manager, having a clear understanding of the sometimes-subtle differences between scope of practice and scope of employment can be crucial to patient safety. Reviewing the state nurse practice act, understanding and appropriately questioning job descriptions, work assignments, or delegated duties, and having communication skills that allow frank and open discussion will serve the individual nurse as employee and the hospital as employer, and ultimately (and perhaps more importantly) these actions will serve the patient. —Lisa A. Miller, CNM, JD Founder Perinatal Risk Management and Education Services Portland, Oregon
References 1. Piedmont Hosp, Inc, v Palladino, 276 Ga 612, 580 S.E. 2d 215 (2003). 2. Oregon State Board of Nursing scope-of-practice decisionmaking guideline for RN and LPN practice. http://www .oregon.gov/OSBN/pdfs/policies/scope_decision_tree.pdf. Accessed August 21, 2013. 3. Maxfield D, Grenny J, Lavandero R, Groah L. The silent treatment: why safety tools and checklists aren’t enough to save lives. http://www.aacn.org/WD/hwe/docs/the-silenttreatment.pdf. Accessed August 21, 2013.
www.jpnnjournal.com
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
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