Have you found it hard to have a business or personal conversation these days without COVID-19 coming up? The potential topics are numerous: someone tested positive, the latest variant, the latest mask or other mandate, how businesses are handling things, etc.
In the law—and particularly the areas of health and medical malpractice—the pandemic and its implications are a constant source of consideration.
Last week, for example, I did a continuing legal education (CLE) presentation for the Houston Bar Association on “HIPAA Right of Access and Privacy in the Age of COVID-19.” You can watch the video here.
During this year’s regular legislative session, Texas legislatures embraced the coronavirus pandemic as an opportunity to usher in more tort reform. You can read my article about the new law here.
Like other areas of tort reform, some people think that the protections for hospitals, physicians, nurses, and other health workers are more expensive than they are in reality. Some people believe, for example, that there’s somehow a lower standard of care that applies during a pandemic.
From a legal perspective, the standard of care is what a reasonably prudent hospital, physician, nurse, or healthcare provider would do under the same or similar circumstances.
Last Fall, the Texas Board of Nursing published in its quarterly newsletter an article called “Standards of Nursing Practice Remained the Same, Even During a Pandemic.” The title says it all! Here’s a summary of key Board rules and regulations that still apply to nursing care, despite COVID-19:
• Rule 217.11(1)(B) requires nurses to promote a safe environment for patients and others. The Board’s article noted that, “The pandemic has not diminished the relevance of the standard. On the contrary, the measures nurses have taken to adapt to the ever-evolving safety guidelines demonstrate how critical the standard is during a pandemic.”
• Rule 217.11(1) requires nurses to document their nursing care in the patient’s medical record. It’s common to hear defense lawyers in medical malpractice lawsuits argue about how nurses don’t have time to document the chart because they’re busy taking care of patients. This position is inconsistent with the rule. The Board’s article noted that during this pandemic, “When nurses fail to document their nursing care, valuable information regarding the acute phase of the virus and the impact of the nursing care provided to these patients may be lost.” These contemporaneous records are important considering our evolving understanding of how the COVID-19 virus works and its long-term effects on patients.
• Rule 217.12(1)(d) mandates that nurses accurately and completely report and document patient status, including signs and symptoms, nursing care rendered, physician orders, administration of medications and treatments, patient responses, and contacts with other health care team members concerning significant events regarding the patient’s status. The Board noted that nurse scientists are participating with other medical and scientific professionals in studying the impact of COVID-19.
• The Scope of Practice Decision-Making Model (DMM) is still recommended by the Board during the pandemic, just as it was before the pandemic. The DMM is a resource to help guide the thinking of individual nurses about whether an activity or intervention is beyond or outside his or her scope of practice. The Board recognizes that it is always unsafe for a nurse to accept an assignment that is beyond the nurse’s individual education, training, and experience.
If you’ve been seriously injured because of poor nursing, medical, or hospital care in Texas—even during the pandemic—then contact a top-rated experienced Texas medical malpractice attorney for free consultation about your potential case.
