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    Legally Speaking: The trouble with bending the rules

     

    LEGALLY SPEAKING

    The trouble with bending the rules

    SUZANNE EDGETT COLLINS, RN, MPH, JD, PhD

    The author is a nurse educator and an attorney who was working in the law office of John R. Feegel in Tampa, Fla., when this article was written.

    Just about every nurse bends the rules now and then to get something done quickly. But when it comes to patient safety, rule-bending can cost you your license.

    Jump to:

    Richard, an experienced critical care nurse, was having a problem with a faulty monitor alarm that would go off for no apparent reason. The erratic beeping aggravated everyone in the busy eight-bed step-down unit, including the patient who was recovering from an MI. Someone from the engineering department tried unsuccessfully to repair the alarm. Frustrated, but eager to solve the problem quickly, Richard turned off the patient's tele-pack and had an aide sit with the patient for the rest of the shift.

    The hospital's policy, however, stated that tele-packs and monitor alarms must be kept on at all times. Richard felt that bending this rule was justified, since he and his co-workers had dealt with the problem this way many times before. Besides, someone stayed with the patient to watch for any changes.

    However, when the shift changed, the tele-pack remained off, without anyone watching the patient. The patient subsequently had a fatal arrhythmia.

    Richard had no excuse or defense. His state Board of Nursing (BON) imposed two years of direct supervision and ordered Richard to attend continuing education classes on legal issues and on cardiac care. The patient's family sued the hospital and Richard for negligence on the basis of a breach of applicable standards of care and a foreseeable causal connection between that breach and the patient's death. Even though Richard didn't intend to break the rules, he got into trouble because on his unit, bending a rule on monitor use had become a tolerated practice and incorporated into the unit's collective work ethic.

    Such socially acceptable rule-bending is not uncommon. Yet many times it may violate standards of care. Most nurses don't know that this is illegal behavior that can lead to disciplinary actions, make them the subject of lawsuits, and even cost them their license.

    How nurses learn rule-bending

    When a newly graduated nurse first enters the workplace, he may encounter substantial gaps between what he learned in training and what's actually practiced on his unit.1 Time constraints and staff shortages can accelerate his socialization, or adjustment, to the realities of actual professional practice. He may, for example, find himself giving a laxative, without an order, to a patient who is constipated.

    Socialization isn't confined to new nurses. Every time a nurse changes employers or specialties, gets a promotion, or even cross-trains in another unit, he must learn how to become an effective member of the particular work group, while trying to stay faithful to his own values.2

    When Richard joined the step-down unit, he saw how his colleagues dealt with faulty monitor alarms. He chose to follow that method, even though he might have first thought, "Why can't we get this alarm repaired instead of turning off the tele-pack?"

    Instead, he adapted his behavior so he would be seen as fitting in. Although he may not have been fully aware of it, the degree to which he did or didn't fit in was shaping how his new colleagues would behave toward him. This "peer perception" influences the work habits of a new nurse, who typically will want to measure up to the expectations—including subtle, unstated expectations—of colleagues on the unit.3

    This socialization process sets the stage for what's called responsible subversion, or socialized rule-bending.4

    Good intentions are no excuse

    Responsible subversion is exemplified by nurses' intentional bending of rules to accomplish a specific patient-care goal or to promote work efficiency.4 The subversion occurs when experienced, knowledgeable, idealistic nurses feel professional conflict and frustration over certain aspects of patient treatment and consequently "work around" the rules so they can adequately care for the patient.

    Even though nurses, when they first enter the workforce, understand that breaking the rules constitutes an error, this may change over the course of their careers. The nurse comes to believe that rule-bending is acceptable, not erroneous, under some circumstances.3

    Gradually, this attitude evolves to include a tolerance for beneficial, or at least harmless, rule-bending, tempered by the realities of practice. This socialization can happen quickly, as seen in this comment from a new graduate in her first six months of practice in a busy teaching hospital: "When we know the patient needs a medication or a lab test and we can't get hold of the resident, we just order it and get it signed later."

    No doubt, she and her colleagues learned this rule-bending for the patient's benefit. As a nurse with 34 years of experience describes: "I used to think that if the doctor didn't order something, I certainly wouldn't do it. But that's not the case anymore. I've done a lot for needy patients that I wasn't authorized to, such as give Tylenol to a patient with a headache. If I had to track down a doctor and wait for an order, I might not have been able to help the patients when they needed help."

    Nurses also bend rules simply to facilitate workflow. Take this situation, described by a nurse in her early years of practice: "When I have 16 patients at night, I can't always give everybody's 10 p.m. meds at 10 p.m. It's just not going to happen. Some patients will get meds at midnight or even later. So my perception of error slackened once I started working and found out what was serious and what really didn't matter much."

    The process of rule-bending goes through phases. First, a nurse, even if not consciously, attempts to do a risk-benefit analysis of the conditions and consequences of his intended rule-bending:4 He evaluates how he can meet patient needs when the rules seem to keep him from doing this; then, he predicts the consequences for the patient, himself, the rule maker, and his employer. This is followed by the act of rule-bending, and finally, engaging in protective behavior to cover up the rule violation.

    When Richard turned off the tele-pack, there's no doubt he was aware of the risk, but he thought he accommodated for it by having an aide remain with the patient. In this case, real harm occurred. But even if it hadn't, Richard could still have been subjected to discipline for unprofessional behavior if his actions were discovered.

    Legal fallout from rule-bending

    According to the Model Nursing Practice Act (upon which state nurse practice acts are based), grounds for discipline include engaging in unprofessional conduct, described as a departure from, or failure to conform to, standards of professional nursing for which actual injury to a patient need not be established.5 (Such unprofessional conduct or rule-bending becomes negligence when a patient suffers harm as a result.)

    Experienced nurses may assume that there will be legal consequences to rule-bending (such as a malpractice suit) only if the rule-bending results in a bad patient outcome. Nurses are often shocked to learn that they may be subject to sanction against their licenses even if the rule-bending did not harm the patient.

    Consider, for instance, the situation one group of nurses found themselves in. A group of nurses who worked at a long-term care facility had developed a practice of "borrowing" meds when they had an off-hours admission. (The facility didn't have a full-time pharmacist.) This wasn't done furtively; the nurses would carefully document the fact. This practice, which went on for years, was discovered by an outside survey of the facility. Dozens of nurses and one administrator received administrative complaints against their licenses from their BON. A year-long legal battle to get those complaints dismissed followed. The battle was successful, but the process was expensive and stressful.

    Working toward safer practice

    Nurses may often choose to bend the rules instead of going through proper channels to change rules that interfere with efficient, good-quality care. (See RN, June, Legally Speaking.)

    Clearly, instead of turning off the tele-pack and endangering the patient, Richard should have advocated for his patient by taking the matter to his supervisor, or someone above her, to ensure that the monitor was repaired or replaced. And the nurses who borrowed medications to fill a need should have lobbied for a better method for obtaining drugs when a pharmacist wasn't available.

    In a busy work environment that is understaffed, rule-bending may seem like the only solution. But rule-bending doesn't effect substantive change and only provides a temporary fix when what's needed is a change in the underlying conditions that make rule-bending necessary. Such change may come about only through assertive, persistent, and collaborative efforts within the nursing chain of command. It's not only a better way, but it's a more defensible method than rule-bending.

    REFERENCES

    1. Philpin, S. M. (1999). The impact of Project 2000 education reforms on the occupational socialization of nurses: An exploratory study. J Adv Nurs, 29(6), 1326.

    2. Biordi, D. L. (1993). Nursing error and caring in the workplace. Nurs Adm Q, 17(2), 38.

    3. Collins, S. E. (2001). Knowing nursing error: Understanding nursing error through nurses' error experiences. (Doctoral dissertation, University of South Florida, 2001). UMI Dissertation Services/ProQuest Company. 3041099.

    4. Hutchinson, S. A. (1990). Responsible subversion: A study of rule-bending among nurses. Sch Inq Nurs Pract, 4(1), 3.

    5. National Council of State Boards of Nursing. (1994). Model nursing practice act. Chicago: Author.

     

    Emil Vernarec, ed. Legally Speaking: The trouble with bending the rules. RN Jul. 1, 2003;66:69.

    Published in RN Magazine.