RISK MANAGEMENT ISSUES

Professionals have a duty to behave prudently and reasonably. A failure to act reasonably that results in injury to another constitutes negligence. Malpractice is negligence committed by a professional in the performance of professional duties. In telephone triage, malpractice boils down to two types of error—system error and practice error. Institutions are responsible for creating and maintaining safe systems to avoid system error. Clinicians are responsible to avoid practice errors, usually failures of communication or investigation (failure to assess adequately).

Layers of Safety

System error occurs when a culture of safety is not emphasized. In the risk-prone subspecialty of telephone triage, for example, overemphasis on cost containment (reduction of inappropriate paramedic transport or ED/office visits) can erode standards of patient safety.

System error can be reduced by developing complete systems, providing “layers of safety” to the staff and patient alike. High-quality systems serve as risk management tools by acting as layers of legal protection. The more layers, the more protection. When negligence is alleged, the system will be used as evidence. The more robust and comprehensive the system, the better off an institution will be.

The following components may provide evidence that supports system safety in the field of telephone triage:

• Up-to-date policies, procedures, and standards in place at the time of the call
• Telephone triage guidelines (paper or electronic) used for the call
• Documentation, electronic medical record, or audio recording/transcript of the call
• Training program materials used to train the person who answered the call
• Job description and qualifications of the person who managed the call

The clinician performing telephone triage is first and foremost a communicator. The clinician can lessen liability exposure by communicating effectively. Documentation—an important part of the communication function—should correlate with established guidelines. One must be able to prove that there were no alterations, deletions, or corrections that cannot be defended as the truth and verified by the person who wrote them.

“Right Person, Right Task”

DELEGATION OF TASKS

In regard to telephone triage, institutions and group practices are responsible for delegation of all tasks. In some facilities and many office practices, physicians delegate a role to receptionists to take detailed messages, which are subsequently passed on to nurses. These messages may also include lists of clinical questions for nonclinical staff to ask patients. While many facilities currently allow this practice in order to cut costs by hiring fewer clinicians, it is a risky policy and can lead to system error.

There also often remains confusion over who is legally authorized to delegate certain tasks to unqualified staff. Traditionally, physicians and corporations are legally allowed to delegate tasks to nonclinicians. Organizations such as ANA (2019) and AAACN (2018) advise against such delegation. Using clerical staff in this way may be cost effective but may result in delay of care, patient harm, and malpractice lawsuits. It is legally risky for the following reasons:

• While symptoms such as chest pain, difficulty breathing, and severe pain are obviously urgent symptoms, to date there is no clinical evidence that any special list of other key symptoms enables nonclinicians to safely “pre-triage” symptoms.
• Even for qualified clinical staff, it is challenging to gather information, perform assessments, and assess symptom urgency by phone.
• No symptom list can adequately cover the variations of presentations of urgent symptoms; for example, symptom presentation may be atypical, silent, or novel.
• Patients may misinterpret or deny symptoms, self-diagnose, and miscommunicate. They might relay erroneous information to the clerical staff. For example, some patients label symptoms as “a bad case of the flu” when they may actually represent early signs of sepsis.

A safe standard might instead include the following policies:

• A voice message system directs callers to leave messages on separate lines for:
  • Lab or X-ray results (transferred to appropriate clinician)
  • Pharmacy requests
  • Class registration
  • Nonclinical messages to physicians
  • Directions, hours
• Symptom-based calls are assessed first by clinicians and then transferred to clerical staff to set up the recommended appointment.
• Non-symptom-related, scheduling-based calls go directly to clerical staff.

It is prudent for telenurses to request a copy of their task delegation policy in writing.

MISREPRESENTATION

Receptionists and nonclinicians must also not be allowed represent themselves as nurses or to let callers believe that they are nurses. To prevent this from happening, titles for nonclinicians should be clearly nonmedical, such as appointment clerk, scheduler, office clerk, or administrative assistant. A receptionist can state immediately to the caller to whom they are speaking by name and title, for example, “This is Shannon, the office clerk.” Ambiguous titles such as medical representative or medical assistant may mislead callers into thinking they are speaking with clinicians. This can lead to a charge of misrepresentation if no one corrects that impression. It constitutes system error.

Likewise, nurses must never hold themselves out as physicians nor let the caller believe they are talking with a physician. A telenurse can state immediately to the caller to whom they are speaking by name and title (e.g., “This is Stacey, the triage nurse. How may I help you?”). Failure to clarify a role in this way may result in legal liabilities.

“Duty to Terrify”

Because telephone triage is a time-sensitive task, if nurses perceive that symptoms are urgent, they must give patients instructions about the seriousness of the recommended course of action. The term duty to terrify refers to what has been called “a duty based on the liability from an injury to the noncompliant patient who claims that his or her noncompliance was due to an inadequate understanding of the urgency of the situation” (Wheeler, 2013).

While the phrase duty to terrify is memorable, it may be better worded as duty to clarify. In other words, the clinician’s directives should be specific enough to convey the concept of urgency and to motivate the patient to comply, yet not so specific that the clinician appears to be making a diagnosis.

Clinicians must instruct patients in when, where, and why they need to be seen and further evaluated. For example, by gaining a caller’s agreement to “come to urgent care within four hours because the symptoms sound serious,” nurses have discharged the duty to clarify, thereby promoting informed consent, continuity, and compliance. Not doing so is an example of a practice error, namely, failure to communicate.

Delay and Denial of Care

Two specific risk management issues—delay and denial of care—can haunt every decision made. That is because nurses provide access to appointments and referral to the ED (Wheeler, 2013, 2017).

PAYMENT CONCERNS

System error can be related to institutional efforts to contain costs by reducing inappropriate ED visits, paramedic transport, and office visits. Thus, telenurses are sometimes forced to act as gatekeepers. Telenurses’ priority, however, is to ensure patients’ timely access to emergency services rather than considering who will pay for such services. An experienced telenurse has the autonomy to act based on clinical experience and nursing knowledge.

Patients themselves may contribute to a delay in care through their own reluctance to call 911 due to anticipated charges for ambulance transportation. The nurse should always be alert to the possibility of a patient’s concerns with payment issues. This “hidden agenda” may lead the caller to minimize disclosure of symptoms in order to avoid incurring the costs associated with paramedic transport. Detailed, written policies and procedures should clearly address the access issue and the correct procedure to follow.

ACCESS TO SPECIALISTS

Many malpractice claims from high-risk populations (pediatrics, geriatrics, and women of childbearing age) are now related to lack of timely access to specialists. Due to cost-containment strategies, callers often need to be screened by their primary care provider prior to seeing a specialist. This policy may dangerously delay access to the patient’s OB/GYN, pediatrician, internist, or oncologist. Bureaucratic obstacles to timely access can be subtle and are related to system error.