By Stacey Kusterbeck
Many short-staffed EDs are “floating” nurses from other hospital units to cover the department, but this practice poses safety risks for patients and legal risks for the nurse, the ED, and the hospital. “Floating nurses to emergency departments without appropriate education and training raises major concerns about patient safety, which is every nurse’s primary concern,” warns Mawata Kamara, RN, an ED nurse at San Leandro Hospital in California.
Of 2,575 nurses from 50 states and Washington, DC, 26.5% reported they were “floated” or reassigned to a clinical care area that required new skills or that was outside their competency, according to a survey from National Nurses United.1 Almost half (46%) of those nurses reported receiving no education or preparation before they were floated to the new unit.
“Hospital administrators often force nurses into unsafe floating practices as a solution to the staffing crisis they’ve created. In the process, they further heighten the potential for poor patient outcomes and the resulting liabilities,” says Kamara, a member of the California Nurses Association Board of Directors.
For example, Kamara has seen managers tell newly hired nurses they were going to be hired for both the ED and the ICU. During surge planning for the COVID-19 pandemic, some health systems wanted to float nurses from community to trauma hospitals without adequate training.
Floating in the ED can happen safely, provided nurses have undergone proper training for any units they are covering. One example is if nurses working in medical/surgical units formally transfer to the ED. “The process includes six months of orientation and taking critical care courses. Those nurses are now full-fledged ER nurses,” Kamara explains.
Since the nurses previously worked in medical/surgical units, they can safely float from the ED back to the medical/surgical units, if necessary.
From a malpractice standpoint, any provider in the ED who lacks education, training, and experience specific to the ED is “a potential liability,” according to Keith C. Volpi, JD, chair of the Health Care Professional Liability Practice Group at Polsinelli in Kansas City.
ED malpractice claims frequently allege failure to identify a serious medical condition. “If we have that claim, and our primary defendants are the attending ED physician and a nurse who floats to the ED from another unit, a number of concerns exist,” Volpi says. Here, the plaintiff attorney can make several convincing arguments:
• The float nurse lacked ED-specific training. During depositions, the plaintiff attorney will ask about the nurse’s CME credits and a breakdown of the shifts worked outside the ED vs. in the ED. “If a nurse spends the majority of the time outside of the ED, the nurse will be painted as an unqualified stand-in rather than a professional ED nurse,” Volpi says.
• The float nurse lacked enough experience in the ED. “The only way to eliminate this argument is to ensure that float nurses work in the ED often enough, such that a significant amount of their time is in the ED,” Volpi offers.
• The EP was wrong to rely on the clinical impressions of the float nurse. “The plaintiff’s attorney will argue that the ED physician was obligated to establish his or her own data points and perform an independent work-up because the impressions of a generalist nurse are not reliable,” Volpi explains.
• If the EP had conducted an independent work-up, he or she would have identified the underlying condition. Plaintiff attorneys can point to largely subjective clinical assessments that missed signs of dangerous conditions (e.g., internal bleeding, compartment syndrome, or stroke). “If these subjective signs are missed, the common argument is that a ‘seasoned’ ED nurse would have caught them,” Volpi says.
This likely will resonate with jurors. “I have long believed that the most important question in any medical negligence lawsuit is whether the members of the jury will conclude that they would want the defendant to treat family members,” Volpi shares.
It is difficult for jury members to feel that way about a defendant who lacks traditional ED credentials. “This is true for physicians, midlevels, and nurses in the ED,” Volpi adds.
It is better to use an experienced travel emergency nurse than to float an inexperienced staff nurse from another unit to the ED, according to Taralynn R. Mackay, RN, JD, partner at McDonald, Mackay, Porter & Weitz. “I have seen hospitals float all types of nurses without consideration of their increased liability due to a lack of orientation and the nurse’s lack of training for the area floated to,” Mackay says.
In Mackay’s experience, nurses who are floated typically receive little to no orientation. The assumption is since that nurse already works in the hospital, sometimes for many years, that nurse is fully capable of working in the ED.
“This is also seen with new hires. An experienced nurse is not expected to need a full orientation, and if the nurse requests more training, the perception is that something is wrong with the nurse,” Mackay says.
Anna Berent, JD, MBA, says, “plaintiffs’ attorneys love stringing together an argument of ‘profits over people.’ They know it resonates with jurors and evokes fear that an emergency department is not a safe place.”
During depositions of float nurses, plaintiffs’ attorneys can ask persistent questions about the frequency of ED shifts, the amount of training received, and the type of day-to-day shift the nurse typically experiences when not floating. “The kind of shift that would garner the most scrutiny is the one that is not defined by the fast-paced environment of the ED,” says Berent, senior director of claims in the New York City office of MCIC Vermont, a provider of medical professional malpractice insurance.
Outpatient settings, hospitalist admission, or neurology are slower paced. Nurses in those areas benefit from continuity of care and knowledge about the patient’s history. These settings stand in stark contrast to the hectic, unpredictable ED. “It is then easy for a plaintiffs’ attorney to extrapolate that a nurse may not have been prepared to provide adequate care,” Berent says.
Those allegations can even result in legal exposure for the hospital administrators. Although the hospital often is named as a defendant, a plaintiff attorney typically will not depose hospital administration. Specific allegations related to staffing shortages open the door to that possibility. The same is true if there are claims of intentional or negligent mismanagement of the ED.
“A plaintiff’s attorney may demand and be granted access to additional document discovery, as well as non-treater depositions from the hospital,” Berent warns.
REFERENCE
1. National Nurses United. National nurse survey reveals significant increases in unsafe staffing, workplace violence, and moral distress. April 14, 2022.
Of 2,575 nurses from 50 states and Washington, DC, 26.5% reported they were “floated” or reassigned to a clinical care area that required new skills or that was outside their competency, according to a survey. Almost half reported receiving no education or preparation before they were assigned to the new unit.
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