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www.nursingmanagement.com Nursing Management • April 2016 11

Legal Perspectives

Sharing supervision and liability as a nurse manager By Karen Wilkinson, MN, ARNP

A question that’s frequently asked by nurs-

ing supervisors and nurse managers that

has no one correct answer is: “Can I be

held liable if a nurse I’m supervising com-

mits malpractice?” Nurses are held responsible

for their own acts of negligence, but there may be

certain limited instances when the law imposes

liability for the acts of another. Nurse managers

have supervisory responsibilities in a facility and,

with that responsibility, there’s potential personal

liability and exposure to lawsuits.1

There are two forms of accountability in nursing.

Personal accountability is the responsibility that

nurses have to themselves and the patients for whom

they provide care. Public accountability is the

responsibility that nurses have to their employer and

society in general. All nurses are held accountable for

using their knowledge and skills when planning and

providing patient care. Nurse managers have an

additional accountability for those whom they super-

vise and are held to a higher legal standard than the

nurse who isn’t in a management role.2 What’s

acceptable as a reasonable and prudent course of

action for a nonnurse manager may not be accept-

able for a nurse manager.

Failure to perform supervisory duties

There are many areas of potential liability for the

nurse manager in today’s healthcare environment,

such as failure to carry out supervisory responsibil-

ities or perform duties as a nurse manager.3 In the

patient care setting, nurse managers are often seen

as problem solvers. When difficult or unusual situ-

ations arise that clinical nurses are unable to deal

with, the nurse manager is called on to resolve

those difficulties. Nurse managers and supervisors

may also be called on when a patient is responding

unfavorably to treatment or deteriorating rapidly.

For example, the clinical nurse is often required to

notify his or her supervisor of a deteriorating

patient, especially during the night shift. Once noti-

fied, it becomes the supervisor’s responsibility to

notify the attending provider. Supervisors may be

found liable if their failure to notify the provider of

an important concern or change results in injury to

the patient due to delayed treatment.4

The nursing supervisor or nurse manager may

also be held liable if the provider fails to respond

and the supervisor is aware of the patient’s declin-

ing condition. If the provider’s response doesn’t

meet the standard of care that the nurse expects, it’s

the responsibility of the supervisor to go through

the chain of command to get the treatment needed

for the patient, even if it means going over the pro-

vider’s head to the director or administrator.

Failure to properly delegate

The field of nursing management involves supervi-

sion of various personnel who directly provide care

to patients. Nurse manag-

ers have a duty to ensure

that the staff members

under their supervision

are practicing in a compe-

tent manner.5 Supervision

is the active process of

directing, guiding, and

influencing the outcome of

an individual’s perfor-

mance of an activity. When

nurse managers supervise,

they retain personal liabil-

ity for the reasonable exer-

cise of supervision, delegation, and assignment activ-

ities. The failure to supervise, delegate, or assign

within acceptable standards of professional nursing

practice may constitute malpractice. Nurse managers

need to know the language and understand the nurse

practice acts of the state in which they practice. Many

states offer assistance with understanding delegation

by providing decision-making flowcharts.

Delegation is defined by the American Nurses

Association (ANA) as “the transfer of responsibil-

ity for the performance of an activity from one

individual to another while retaining accountability

for the outcome.”6 The nurse may transfer the

Legal Perspectives

12 April 2016 • Nursing Management www.nursingmanagement.com

responsibility and authority for per-

forming nursing activities, but they

still remain accountable for the over-

all nursing care.6 For this reason, the

nurse manager must make safe and

effective delegation decisions. Dele-

gating safely involves knowing the

patient, the staff member, and the

task to be delegated; explaining the

task and expected outcomes; expect-

ing responsible action from the dele-

gate; assessing and supervising job

performance; and evaluating and

following-up. These delegation

practices should be learned and

practiced by all RNs who may be

delegating to LPNs/LVNs and unli-

censed assistive personnel (UAP).

The nurse manager must take this

a step further when planning care

and staffing a unit or clinic because

the responsibility for delegation

becomes layered as care is assigned

to RN staff members working with a

multiskilled team.4 The nurse man-

ager must determine how to best staff

a unit based on the nursing care

delivery model, acuity of patients,

skill level of staff, and costs of provid-

ing the care. Ultimately, it’s the nurse

manager who retains responsibility to

ensure that patient care is delivered

safely and efficiently; caregivers are

competent and legally qualified to

perform the duties they’ve been

assigned; and safe, quality care and

staff satisfaction are maintained.

Assignment is the transfer of

both accountability and responsibil-

ity from one person to another.2

Assigning tasks isn’t the same as

delegating tasks. The ANA defines

assignment as “the downward or

lateral transfer of both the responsi-

bility and accountability of an activ-

ity from one individual to another.”6

When a task is assigned, it’s work

that a staff member is responsible

for performing as a condition of

employment and consistent with the

staff member’s job position and

description, legal scope of practice,

and training and educational back-

ground. The staff member—an RN,

LPN/LVN, or UAP—assumes the

responsibility for completing the

assignment. The care of patients

isn’t assigned to the UAP or LPN/

LVN, but rather certain tasks are

assigned that fall within the scope of

practice for that staff member. The

RN remains responsible for patient

care and all nursing practice activi-

ties, such as assessment, care plan-

ning, and patient teaching.2

The nursing supervisor or nurse

manager who’s making patient

assignments or equipping a charge

nurse with this task must provide the

RN who’s responsible for making

assignments with the tools and train-

ing to consider many factors when

assigning patient care. It isn’t simply

assigning care based on warm bodies

staffing the unit for the shift. The

nurse manager will want the assign-

ing RN to consider the patient’s

acuity; infection control and isolation

requirements; and the degree of

supervision required for the staff

based on level of education, skill

level, and competence.5 The degree

of supervision is key for many legal

cases in which liability for a poor

outcome is being determined.

As assignments are made to a less

experienced nurse of a more complex

patient, the level of supervision must

increase. However, this doesn’t mean

that the most experienced, skilled

staff members must be assigned the

most complex and difficult patients.

Assigning staff members to more

complex patient care with supportive

supervision will actually increase

nurses’ skill level, competence, and

confidence while maintaining safe

patient care and decreasing the risk

of liability to nursing staff.3

Obligation to train, orient, evaluate

Another area of nurse manager lia-

bility arises from the manager ’s

obligation to train, orient, and eval-

uate the ability of clinical nurses to

perform specific functions and pro-

cedures. Most major facilities have

in-service education departments

to orient new nurses and assist

with continuing education. Beyond

this general orientation, nurse

managers are responsible for ascer-

taining that the nurse is oriented to

the specific unit or setting under

their management.7

In a malpractice lawsuit, the plain-

tiff’s counsel will try to show that the

nurse failed to meet the standards

adopted by the facility. The nurse

manager is responsible for ensuring

that the nursing standards described

in the policy and procedure manual

are reasonable and staff members on

the unit know and understand them.

The nurse manager must provide staff

members with the policies and proce-

dures they’re to follow and ascertain

that they’re performing care in accor-

dance. This is what nurse managers

will be held to in a legal matter before

the board of nursing or a court of law.

It’s also the nurse manager’s

responsibility to determine on a day-

to-day basis whether nurses are

capable of performing necessary pro-

cedures. Nurse managers are at risk

for failure to properly train or edu-

cate staff and evaluate the skill levels

of the staff members to whom they

assign duties. The nurse manager

must ensure that staff members

know how to operate equipment

safely and when they require addi-

tional education and retraining to

provide the best quality of patient

care. The nurse manager also has the

responsibility to facilitate and enable

an underperforming staff member

and the unit to achieve the goal of

providing safe and efficient care.8

Unfortunately, in some cases, it’s the

nurse manager who’s found liable

for negligent care when he or she

fails to evaluate a staff member’s lack

of skill and training that led to a poor

care decision and patient injury.4

Legal Perspectives

www.nursingmanagement.com Nursing Management • April 2016 13

Nurse managers must also

accommodate for short staffing.

This comes from a continuing nurs-

ing shortage, increased patient acu-

ity with our aging population, and

ongoing budget constraints with a

focus on reducing the cost of pro-

viding care. The nurse manager is

responsible for meeting The Joint

Commission guidelines concerning

staffing requirements and various

state laws establishing minimum

nurse-to-patient ratios for licensed

hospitals. The nurse manager must

consider these requirements when

determining policies on nurses

floating to other units and the use

of agency or pool nursing staff.

The highest standard

Nurse managers are held to a high

legal standard of care when they take

on supervision and responsibility for

nurses staffing their clinical settings.

They must be aware of the legal obli-

gations they have when performing

their supervisory duties as a nurse

manager. The nurse manager who

supervises and leads with a thor-

ough understanding of safe delega-

tion practices is less likely to be

found liable for negligence. Nurse

managers must be dedicated to con-

tinuous training, orientation, and

evaluation of staff members provid-

ing care on their units as they strive

to meet the requirements for quality

patient care in a challenging health-

care environment. NM

REFERENCES

1. Fremgen B. Medical Law and Ethics. 5th ed. Upper Saddle River, NJ: Pearson Pren- tice Hall; 2015.

2. Cherry B, Jacob S. Contemporary Nursing: Issues, Trends, & Management. 6th ed. St. Louis, MO: Elsevier Mosby; 2013.

3. Weld KK, Garmon Bibb SC. Concept analy- sis: malpractice and modern-day nursing practice. Nurs Forum. 2009;44(1):2-10.

4. Yoder-Wise P. Leading and Managing in Nurs- ing. 6th ed. St. Louis, MO: Elsevier; 2014.

5. Kallas KD. Profile of an excellent nurse manager: identifying and developing health care team leaders. Nurs Adm Q. 2014;38(3):261-268.

6. American Nurses Association. Nursing: Scope and Standards of Practice. 3rd ed. Silver Spring, MD: American Nurses Associ- ation; 2015.

7. Fagan MJ. Techniques to improve patient safety in hospitals: what nurse administrators need to know. J Nurs Adm. 2012;42(9):426-430.

8. Cadiz DM, Truxillo DM, O’Neill C. Common risky behaviours checklist: a tool to assist nurse supervisors to assess unsafe prac- tice. J Nurs Manag. 2015;23(6):794-802.

Karen Wilkinson is the founder of Wilkinson Legal Nurse Consulting in Seattle, Wash.

The author has disclosed no financial relationships related to this article.

DOI-10.1097/01.NUMA.0000481787.21944.c6