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The Risks of Bending The Rules
Every healthcare discipline and every healthcare organization develops rules to guide providers. Yet there are times when they seem to hinder your ability to offer the best care to a patient. What then? In many cases, healthcare providers may choose to bend the rules.
A physical therapist, for example, may ignore her facility’s policy requiring the use of gait belts in the interest of promoting a patient’s independence. A pharmacist may give a patient a few extra pills, just to hold her over until she can refill her prescription. Or an emergency medical technician may perform a life-saving procedure that is outside the scope of his practice.
All these cases involve some kind of rule-bending in the interest of patient care. In some instances, the practice may even become part of a unit’s or facility’s routine. But most legal experts agree that bending the rules— even with the best of intentions—is risky business.
When subversion works
Healthcare providers bend the rules for a number of reasons. In some cases, it’s because they’re unfamiliar with the rules, policies or regulations that govern their practice. Or they may believe that their professional judgment overrides any policies or procedures in place.
“People don’t go to work intending to break the rules,” said Suzanne Edgett Collins, RN, PhD, JD, Associate Professor at Duquesne University School of Nursing in Pittsburgh. “Rule-bending is a learned behavior that often becomes culturally acceptable.”
Collins has conducted research on “responsible subversion,” a concept originally developed by nurse researcher Sally Hutchinson, RN, PhD. This occurs when healthcare providers act responsibly by putting the patient’s best interest foremost—but at the same time act subversively by stepping outside the rules of their practice.
Responsible subversion may help explain why rule bending is tolerated within various healthcare disciplines. As providers try to assimilate into a unit or a facility, they learn how to handle certain situations, taking into account how their co-workers and individuals in authority will react.
“They learn that some things work and some things don’t,” Collins said. Once providers have bent the rules and had a favorable outcome and response from peers and supervisors, they are likely to be tempted to do it again. If left unquestioned, the rule-bending action then tacitly becomes acceptable practice in the unit or facility, she explained.
The trouble with rule-bending
“Bending the rules is a slippery slope,” warned Jonathan Cooperman, PT, MS, JD, President of the Ohio Physical Therapy Association. “Once you start bending a rule, then you start bending it a little harder and a little harder and a little harder.”
In fact, bending the rules even once can land you in trouble. Take the case of the physical therapist who decides to sidestep her facility’s policy requiring the use of gait belts with all patients. Eager to promote independence in her patient, the PT decides it is time to remove the gait belt. During a therapy session, the patient loses his balance and falls, fracturing his hip.
“Courts look at certain things to determine the standard of care, including guidelines or a facility’s policy or procedures,” said Gayle H. Sullivan, RN, JD, President of Quality Assurance Associates Inc., a medical liability consulting firm in Fairfield, CT. “If a patient is injured because you deviated from that standard of care, you can be sued for negligence.”
Even if a patient is not harmed, bending the rules can put your ability to practice in jeopardy. An emergency medical technician who intubates a patient in a state that has defined this procedure as outside the scope of practice for EMTs puts his license at risk—even if the procedure saves the patient’s life.
“It doesn’t matter if a patient is harmed or not,” said Sullivan, noting that performing a task outside your scope of practice is grounds for disciplinary action by your facility or licensing agency. The result: You can be sanctioned, have limits placed on your ability to practice or have your license taken away. A report of the incident could result in criminal charges.
In addition to the legal and administrative actions that can be taken against you, bending the rules can adversely affect your relationship with a patient. A client who becomes aware that a counselor consistently flouts the rules may lose trust in that provider, said Judith L. Ritterman, MS, NCC, ACS, CFT, President of the New York Mental Health Counselors Association. That distrust could ultimately cause a client to become dissatisfied with his or her care, or even derail the client’s progress—increasing your risk of being sued.
Dealing with gray areas
While legal experts agree that rule-bending is inadvisable, they acknowledge that there are gray areas. For example, when a patient’s prescription has run out of refills, a pharmacist who is unable to reach a prescribing practitioner may decide to dispense enough blood pressure medication for the patient to take until the pharmacist can contact the prescriber. While that action could put the pharmacist at risk—he could be accused of practicing medicine without a license—in some cases, he might also have a duty to provide that medication.
For example, if a patient with unstable angina suffers a heart attack because the pharmacist did not provide a refill of his nitroglycerin, the pharmacist may be subject to liability. “It’s a double-edged sword,” said Michael Alfano, RPh, JD, a Philadelphia- based attorney.
A provider’s professional judgment is the most reliable guide in these situations. A pharmacist would have to determine how important the medication is to the health of the patient and the potential consequences of the patient’s missing one or more doses, according to Alfano. He or she would also have to consider the patient’s relationship with the prescriber (Does the patient see the same practitioner regularly?) and the practitioner’s relationship with the pharmacy (Does the medical professional typically authorize telephone refills for medication for a chronic condition?)
How to manage your risk
Collins acknowledges that bending the rules is often just a Band-Aid for a bigger problem in the system. Providers resort to bending the rules because they believe they have no other options. But they do. They should bring the problem up the chain of command, she said.
D. Kathleen Lewis, PT, JD, Associate Professor at Wichita State University in Kansas, agreed. If there’s no flexibility in your facility’s rules that allows you to use your professional judgment, as in the case of the PT or pharmacist described above, you should bring it to the attention of administrators. “If the rule doesn’t fit, then change the rule,” Lewis advised.
If you have your own practice, you may not even be aware that you’re bending rules. It’s a good idea to have an outside organization conduct a periodic risk assessment, Cooperman noted, to identify any risky behaviors you or your colleagues may have inadvertently adopted.
Of course, your ultimate safeguard is to be familiar with and make sure you thoroughly understand both the rules and regulations that govern your practice, and the policies and procedures in place at your facility. If you need guidance on your discipline’s code of ethics or standards of practice, turn to your professional association. Similarly, your organization’s risk manager can help you interpret—and adhere to— in-house policies. These resources can help you determine how best to avoid liability.