Staffing Shortages Could Increase Liability Risks
September 1, 2022 9 minutes read
By Greg Freeman
EXECUTIVE SUMMARY
Staffing shortages at hospitals and health systems could lead to increased liability risks. Patients might be subjected to insufficient care, delays, and medical errors.
- Staff may be overworked and subject to injury.
- Physician understaffing could lead to inadequate care by other providers.
- Mental health claims by staff also might increase.
Staffing shortages can cause a wide range of problems within a healthcare facility. Most of those issues can lead to greater liability risks. Risk managers are struggling to alleviate those risks even as the staffing challenge gets progressively worse.
Recent research indicates nurse staffing is near crisis levels, with fewer than one-quarter of nurses saying their facilities are properly staffed at least 75% of the time.1 (For more on the study, see related story in this issue.)
The effects on patient safety and increased liability from staffing shortages has been expected for some time, says Brian Wilhelmi, MD, JD, FASA, a member of Physicians for Patient Protection (PPP) and chair of the department of anesthesiology at Dignity St. Joseph’s Hospital and Medical Center and the Creighton University School of Medicine in Phoenix. Wilhelmi also works in risk management and malpractice prevention.
“It’s here and the effects are happening,” Wilhelmi says. “The effects are profound.”
Several recent studies have demonstrated how greater clinical overlap results in increased mortality, Wilhelmi says. For example, anesthesiologists supervising nurse anesthetists or anesthesia assistants at extreme ratios raises patients’ mortality rates.2
Research has shown that mortality rates are lower in units with high nurse-to-patient staffing ratios.3 However, the practice of concurrent surgery, wherein a surgeon works on a team-based model to run more than one room, can increase risk.
Unions, such as National Nurses United, and trade groups, such as the American Academy of Surgeons, have spoken out on the topic, Wilhelmi notes. Hospital risk managers should be aware of the national standards offered by such groups and stay abreast of current best practices.
Not Just Nursing
Wilhelmi notes the staffing crisis involves more than just nurses. The downward pressure on payments to physicians is encouraging greater levels of physician-led (but poorly supervised) care. Physicians are pressured to take risks with several loosely supervised people working under them — none of whom may possess sufficient experience.
The healthcare industry is seeking profitability by providing cheaper clinicians to more people in a rapid throughput fashion, Wilhelmi says. For example, a neurologist might have to supervise several physician assistants (PAs) who have never been trained in neurology while billing at a rate indicating a properly trained and certified neurologist provided care.
Hospitals also may send nurse practitioners to treat some of the sickest patients in a “cardiac service” even though those clinicians have never undergone cardiac training. If the nurse practitioners provide “cardiology advice” without physician oversight, they are practicing well beyond their scope of training and staff privileges in cardiology.
“However, the cardiology group may find it profitable to have their physicians performing high-dollar procedures and avoiding such ‘onerous’ tasks as hospital consult medicine,” Wilhelmi says. “Every hospital has to be aware that they will face increased financial pressure due to low physician and non-physician payments from payors.”
The crisis in direct pay to providers from payors is exacerbating the staffing crisis. Where providers used to see business opportunities, now they see simply additional work without benefit.
“Physicians who used to be widely known for long hours and hard work are now scaling back on productivity, which leads to needs for increased numbers of physicians and non-physicians alike to be retained for service lines,” Wilhelmi explains.
Consent also becomes a potential problem. Wilhelmi says he can envision a time when a patient goes to the emergency department and is treated by a non-physician, then is transferred to an ICU where he or she is not treated by a physician. Somewhere in this process, the patient is injured through negligence.
“The patient probably has never consented to not receiving physician-level care, yet they were provided non-physician-level care all the way through their ICU stay,” Wilhelmi says. “This is a material difference in the standard of care. A hospital cannot send an incapacitated patient into one line of care without their consent, so there is going to have to be informed consent for these issues. That consent cannot be obtained under duress.”
Wilhelmi says he expects state governments to act on that issue.
Risk Managers Must Warn of Dangers
Wilhelmi says risk managers play a crucial role in speaking directly with the independent medical staff and medical directors to ensure staffing ratios remain in line with national standards and best evidence.
Hospitals may be eager to open a particular service line, such as orthopedics, because it is profitable, but they may not have the recruiting power to draw enough clinicians with that expertise for 24-hour care, Wilhelmi notes.
“It is incumbent on the risk manager to caution the hospital CEO or other executives that if we are unable to deal with the complications of surgery on a 24-hour basis, and otherwise provide services that are in line with the national standards of quality of care, we probably shouldn’t be in this service line,” Wilhelmi says. “When there is a push for a service line that cannot meet national quality standards at your hospital, the hospital is making a standard of care decision. That has to be documented by the risk management team, and perhaps brought to the medical executive committee to ask if they are willing to breach these guidelines or stop this.”
Increasingly, hospitals are choosing to not only permit service lines or nursing units to expand, but also to pay for them through stipends and other financial support, Wilhelmi says. By not paying providers appropriately, what were once joint ventures may now fall squarely onto the balance sheet of the hospital in terms of liability and financial responsibility.
“Hospitals unable to recruit or retain this increased number of physicians and non-physicians face a paradox,” he says. “Does the hospital discontinue what has been a profitable or critical service line, or does the hospital expose themselves to the increased liability by understaffing such service lines? Risk managers will directly feel the tug-of-war between the desire for increased profits vs. the reality of understaffing.”
When frontline providers are overburdened, the risks of burnout and attrition increase.
“Physicians and non-physicians alike lose empathy for their patients and begin to see them as less human,” Wilhelmi says. “Literature on burnout in healthcare is voluminous and supports this assertion. Burnout additionally leads to increased mistakes in the hospital, which can lead to professional liability, general liability, and workers’ comp [claims].”
Wilhelmi offers these examples:
- A nurse using a workaround to pharmacy dispensing machines removes medications for all her patients first thing in the morning to save time, but accidentally gives the wrong medication to a patient.
- A patient left unattended due to poor staffing in a radiology unit rolls off the table onto the floor while they are agitated.
- Because too many patients are on the census today, a physician fails to check a critical lab value. Or the physician cannot make a timely intubation or emergency code due to an overburdening with competing duties.
- Overnight, an ICU is staffed with a newly graduated PA. A patient dies from an undiagnosed myocardial infarction. The PA has no specific training in ICU medicine and is not board certified in any medical specialty.
“The likelihood of this increased liability is already upon us,” Wilhelmi says. “It is not a question of ‘Will this happen?’ It is a question of ‘Now that this is happening, how can I avoid serious damages?’”
Risks Trickle Down to Patients
As staffing shortages persist, risks continue to trickle down to patients, says Julie McGuire, RN, MSN, director of the Management Advisory Services practice for BDO in Houston. This can be seen through the quality of care, including hospital-acquired conditions (HACs), the inability to complete required care tasks, missed medications, or forgotten procedures. These outcomes could lead to more liability claims.
“Organizations need to prepare a short-term and long-term approach. In both risk plans, organizations should look at policies and procedures along with the technologies supporting patient care,” McGuire says. “Organizations should maximize electronic health records and other clinical technology to reduce unnecessary required actions by providers, nursing, and other staff. Administrative and monotonous tasks should be automated to reserve more time for staff to interact with patients.”
Simplify by limiting the number of systems needed to complete job functions, McGuire suggests. Also, organizations should invest in predictive analytic capabilities to avert impending risks so mitigation can occur before an incident.
“It’s important to ensure technology solutions allow each member of the care delivery team to work at the top of their license and maximize time providing direct care. In terms of partnerships, organizations should work with nursing or clinical informatics on the best way to implement and adapt technology into the workflow,” McGuire says.
Moral injury is a component of burnout. It is important to highlight how burnout includes the emotional strain of providing care in today’s healthcare system. Clinicians know the right thing to do to take care of their patients but may find themselves constrained by various factors in a system.
For example, members of the healthcare team are leaving direct patient care roles, affecting inpatient care and access to ambulatory care. From an ambulatory perspective, patients may wait longer for necessary primary care or when seeking a specialist. The pandemic caused delays in preventive care, which will only be exacerbated by continued moral injury. Physician shortages will further compound delays with a continued increase in later-stage diagnoses, with higher morbidity and mortality rates.
A long-term approach to staffing shortages includes working with local nursing schools on partnerships and internships, overhauling benefits packages, and considering alternative scheduling and care models, McGuire advises. Where applicable, work with unions on staffing.
“It’s important to ensure that not only are chief nurse officers at the table when determining solutions, but also that the direct patient care nurses are given a seat at the table when determining solutions,” McGuire says.
It is likely there will be a positive correlation between hospital staffing shortages and increased claims, from both a liability and workers’ compensation standpoint, says Elizabeth Wiles, JD, an attorney with Turner Padget in Charleston, SC.
Staffing shortages will negatively affect patients if appropriate care cannot be provided, but it is equally important to consider the effect on hospital employees. Overexertion, physical exhaustion, and dreaded burnout symptoms can lead to poor judgment, accidents, and compensable injuries.
Statistically speaking, private industry healthcare workers exhibit a higher rate of injury and illness compared to other fields, Wiles notes. Healthcare also is one of the fastest-growing service sectors in the United States.
“As an attorney, I often become involved months after the initial injury has happened after formal litigation ensues,” Wiles says. “Therefore, it’s a trickle-down effect. I expect to see an increase in claims within the coming months that will likely trace back to today’s staffing shortages and an overworked population.”
Wiles offers the example of a nurse singlehandedly attempting to lift a patient because no one is available to assist. Patient lifting commonly results in lumbar strain, shoulder injuries, or worse. Some employees may sustain an injury but decline to report it to avoid missing work and further burdening co-workers. Delaying treatment and pushing through with more work can aggravate the injury.
It also is important to be aware of potential mental health claims. Many workers’ comp statutes recognize claims for psychological injury, which could include depression and anxiety.
“It’s a vicious cycle. Reduced staff are taking on additional hours and assignments, which increases the risk of injury. Injured employees will need time off of work to recover, which in turn further amplifies the staffing shortage,” Wiles says. “There’s also the risk that the injury results in permanent physical restrictions, negatively impacting the individual and the employer.”
It is imperative for risk managers, safety directors, and human resources personnel to maintain open and honest communication with employees regarding safety concerns and workers’ comp injuries.
While the staffing shortage is not immediately within your control, the way in which you work with employees to timely and effectively address claims is important, Wiles says. Employees should feel comfortable reporting events and injuries.
“Be cognizant of the risk for mental health claims in addition to physical injuries,” Wiles says. “Promote a positive culture and provide resources to address employee burnout, depression, and anxiety that can result from emotional stressors in the workplace.”
REFERENCES
- Ulrich B, Cassidy L, Barden C, et al. National nurse work environments — October 2021: A status report. Crit Care Nurse 2022 Aug 1;e1-e18. doi: 10.4037/ccn2022798. [Online ahead of print].
- Burns ML, Saager L, Cassidy RB, et al. Association of anesthesiologist staffing ratio with surgical patient morbidity and mortality. JAMA Surg 2022; Jul 20. doi: 10.1001/jamasurg.2022.2804. [Online ahead of print].
- Musy SN, Endrich O, Leichtle AB, et al. The association between nurse staffing and inpatient mortality: A shift-level retrospective longitudinal study. Int J Nurs Stud 2021;120:103950.
SOURCES
- Julie McGuire, RN, MSN, Director, Management Advisory Services, BDO, Houston. Phone: (713) 960-1706.
- Elizabeth Wiles, JD, Turner Padget, Charleston, SC. Phone: (843) 579-8302. Email: [email protected].
- Brian Wilhelmi, MD, JD, FASA, Chair, Department of Anesthesiology, Dignity St. Joseph’s Hospital and Medical Center, Creighton University School of Medicine, Phoenix. Email: [email protected].
Staffing shortages can cause a wide range of problems within a healthcare facility. Most of those issues can lead to greater liability risks. Risk managers are struggling to alleviate those risks even as the staffing challenge gets progressively worse.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content