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Brent's Law

Nancy J. Brent, RN, MS, JD received her Juris Doctor from Loyola University Chicago School of Law and concentrates her own solo law practice in health law and legal representation, consultation, and education for health care professionals, school of nursing faculty, and health care delivery facilities.

Brent has conducted many seminars on legal issues in nursing and health care delivery across the country and has published extensively in the area of law and nursing practice.


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Our DON made a new rule that forces us to clock out at a specific time, and we’re unable to finish documenting. What can we do?
Monday October 27, 2008
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Question:

Dear Nancy,

I am a registered nurse working in a nursing home, evening shift. Our DON made a new rule that forces us to clock out at 11:30 p.m. to 11:35 p.m. only. We get a verbal warning for the first offense, a written warning for the second offense, suspension for the third, and termination for the fourth offense. Most of us are forced to clock out even though we haven’t finished what we were doing, especially things that cannot be endorsed to the next shift like our documentation of patient care. We are always rushing to finish the job on time.

Most times, we have to leave without being able to finish charting. We employees believe that the risk of committing errors is very high with this kind of practice. This is really dangerous. We are afraid that we may lose our licenses for failure to document or failure to do things that we should have done because of this new rule.

Rob



Nancy Brent replies:

Dear Rob,

The situation described in your question is a disaster waiting to happen. A nurse’s duty is to complete all patient care required and to document the care provided before leaving the shift to which he or she is assigned. If this cannot occur, a reporting off to the next shift is essential so that patient care is not compromised in any way.

A nurse’s duty to ensure that patient care and documentation is complete, and reported to the next shift, will not be excused in a court of law because of an employer policy that does not allow the nurse to fulfill that duty, especially when objections to the policy are not undertaken. Likewise, an employer cannot dictate what a nurse’s legal and ethical obligation to his or her patients are by adopting a policy that undermines the nurse’s duty. What is interesting with this policy vis-à-vis the employer is that it may bear liability for a patient injury or death as a result of the adopted policy.

It seems that a frank discussion with the DON, risk manager, administrator, and the home’s legal counsel needs to occur so that the nursing staff’s concerns can be heard and necessary changes to the policy made. The nursing staff can consult with a nurse attorney or an attorney who can help them strategize the manner in which their concerns can be raised and can also advise the nursing staff on their options if their concerns go unheeded.

Although an employer has a right to expect that nursing staff complete its work, including documentation of the patient care provided, within the timeframes of their shift (and nursing staff should also try to do so), when an employer policy provides for discipline of an employee and the is possible loss of a job if the policy is not adhered to, and that policy clearly compromises patient care and the legal and ethical responsibility of the staff, the policy is untenable and legally dangerous for all involved.

Cordially,
Nancy



Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.



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