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Who's responsible for the negligence of temporary or travel nurses?

Nurse managers and hospitals still have oversight responsibilities

The COVID-19 situation has raised to the surface a longer-term problem with nursing staffing and compensation.

For years, many have felt that nursing morale has been damaged by nurses being overworked, underpaid, and having to deal with chronic inadequate staffing—and these were problems before anyone even heard of COVID.

Then along came the virus. Hospitals got slammed with unprecedented surges of patients needing care. To meet the demand, the market rate for temporary nursing positions (also called travel nurses, agency nurses, or locum tenens nurses) surged.

In some cases, travel nurses are paid nearly double what staff nurses employed by hospitals earn. Last year, Texas hospitals used FEMA or government-funded disaster contracts to try to hire travel nurses. Interestingly, the normally free market Texas government put out the word that it “will only allow personnel deploying for this emergency response to be NON-RESIDENTS of Texas only and to have not been employed by a Texas Acute Care hospital or EMS agency within 30 days.”

The standard of care requires hospitals hiring nurses to verify the competency of individual nurses through orientation, proctorship, and testing. In-service educational training and evaluations are conducted at least annually and on an ongoing basis.

With travel or temporary nurses, though, these important functions are sometimes delegated to outside agencies. In other words, travel or locum tenens nurses are not hospital employees and, thus, are typically not put through the same hospital processes of training and skills verification that employee nurses must pass.

Don’t get me wrong, this is not to say that all travel nurses are bad. Some nurses choose to work on a per diem or locum tenens basis because of personal preferences. Others choose travel nursing as a welcomed opportunity to make more money, particularly in the current economy.

It’s important to understand that travel nurses aren’t exempt from the nursing standard of care or a state’s nursing board rules and regulations. For example, Texas Board of Nursing Rule 217.11 requires all nurses to:

•  Obtain instruction and supervision as necessary when implementing nursing procedures or practices.

• Make a reasonable effort to obtain orientation/training for competency when encountering new equipment and technology or unfamiliar care situations.

Who’s responsible for nursing negligence?

In the event of nursing negligence that leads to serious patient harm or death, legal doctrines including vicarious liability and respondeat superior come into play. In these claims, an employer is held legally responsible for the negligence or mistakes of its employees.

When a nurse who is a hospital employee is involved in the care at issue, the employer is the hospital. When it’s a travel nurse, though, the employer may be a temporary nurse staffing agency. Instead of naming the individual nurse whose conduct is at issue as a defendant in the lawsuit, the employer is typically the named defendant.

What about understaffing of nurses?

But the analysis doesn’t stop there. The journal Nursing Management published an informative article back in 2002 entitled “Staffing: What’s your legal obligation?” The abstract says it all: “Understaffing isn’t an excuse for delivering poor nursing care.”

That article points out that when a nurse manager is confronted with the challenge of understaffing, he or she must give careful attention to patient assignments. Texas Board of Nursing Rule 217.11(S) immediately comes to mind:

• Make assignments to others that take into consideration client safety and that are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made.

In other words, even in environments when there’s an increasing reliance on temporary or travel nurses, hospitals and nurse managers aren’t off the hook for potential liability.

If you’ve been seriously injured because of inadequate hospital or nursing care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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