February 2008

Dietitians in the Legal Line of Fire
By Sharon Palmer, RD
Today’s Dietitian
Vol. 10 No. 2 P. 52

As they tackle increased responsibilities and explore new areas of practice, RDs can become targets for malpractice lawsuits. But there are steps you can take to protect yourself from being caught in a sticky situation.

It’s a dietitian’s worst nightmare to become embroiled in one of today’s high-profile medical malpractice lawsuits. Once upon a time, dietitians counted themselves lucky, as they could smugly cite that not a single dietitian had been successfully sued in a malpractice case (based on a 1988 report in the Journal of the American Dietetic Association [JADA]).1

But times are changing. According to the National Practitioner Data Bank, 14 successful malpractice lawsuits against dietitians took place between 1990 and early 2007.

“Liability is a fairly hot area in the dietetics field. It is always a matter of concern. There is probably still a lower risk of liability in dietetics compared with other professions, but the profession is catching up with other healthcare professions,” says J. Craig Busey, general counsel for the American Dietetic Association (ADA).

“Nobody wants to get sued, but dietitians are getting sued, especially in long-term care. Lots of dietitians don’t believe it’s happening. It is happening, but nobody’s talking about it. It’s not like dietitians are saying, ‘Oh boy, I’ve been sued.’ They are typically under instruction from their risk management departments not to discuss it,” says Nancy Collins, PhD, RD, LD/N, who maintains a Florida-based consulting practice and cofounded RD411.com. Collins is also a nationally recognized nutrition legal expert, having served as an expert for more than 400 medical malpractice lawsuits.

What Are Dietitians Up Against?
Perhaps there are reasons for the low rate of dietitian malpractice. Potential rationales may include that dietitians don’t make frequent mistakes, are not viewed as decision makers, have good relationships with patients, work below the radar, and do not have deep pockets, according to a session titled “Avoiding Liability Quicksand: How to Plan Your Steps Carefully” presented by Ellen M. Pritchett, RD, and Carolyn Buppert, NP, JD, at the 2007 ADA Food & Nutrition Conference & Expo (FNCE).

“Dietitians don’t typically get involved in general negligence or unethical behavior, but there is a problem with the legal system. It is a blessing that everyone has free access to file a lawsuit, but the downside is that everyone can file a lawsuit. It doesn’t mean they have sufficient cause,” says Busey.

Medical malpractice has reached crisis levels in some states, and such cases usually take a great deal of time and money to research and prepare for. Yet only 3% of all medical malpractice claims go to trial. Paige Lubritz, RD, LD, cofounder of Dietary Network Services based in Austin, Tex., has been a dietetics expert in roughly 40 cases nationwide. “I haven’t been to trial yet. Rather than drive up costs, these cases seldom go to trial,” says Lubritz.

The rate of lawsuits may increase as dietitians branch out into self-employment and take on more procedures and decision making in riskier areas of practice.

Each malpractice case is decided individually on the basis of the evidence presented in court. There are general principles and guidelines that govern the courts’ decision-making process. A patient seeking legal redress must prove actual injury, a relationship of duty between the parties, breach of that duty, and a cause-and-effect relationship between the breach of duty and the injury suffered.1

The courts look closely at the law on scope of practice, asking questions about whether the dietitian had the legal authority to provide care and whether the appropriate standard of care was followed. Negligence is the failure to act in a reasonable and prudent manner. Malpractice is the failure of a person with specialized education and training to act in a reasonable and prudent manner. To prove negligence or malpractice, it is important to establish that the dietitian owed the patient or client a special duty based on a dietitian-patient relationship, the dietitian breached his or her duty to the patient, the patient suffered actual harm or damage, and there was proximate cause between the breach of standard of care and the patient’s injury.2

On-the-Job Risks
The truth is that all areas of healthcare present their share of legal liability. The best healthcare is provided in a setting that works to minimize those risks, delivers quality care, and ensures patient safety.2 When it comes to evaluating your own on-the-job risks, you need to explore your practice setting. During the FNCE session, Buppert suggested that dietitians ask themselves important questions such as, “Do [I] have training? Do state and federal authorities allow [me] to do this? [Am I] going way out on a limb?”

“We all have to worry about liability, but it’s a spectrum of risk. It depends on what the nature of your practice is. You can’t put everyone in the same category of risk. An oncology setting may have much more risk than other settings,” says Busey.

It all starts with defining the dietitian’s individual scope of practice. This important aspect informs any potential liability or allegation that may arise in malpractice litigation. It sets up the context within which a court will determine whether negligent conduct occurred and whether the dietitian acted within the scope of practice. It lets the jury decide whether the dietitian adhered to the standard of a reasonable and prudent dietitian in the same or similar circumstance.2

Dietitians expanding beyond the constraints of traditional responsibilities may open themselves to greater risk for liability. “As dietitians become more and more essential in the healthcare process and become essential players, it adds awareness by patients. Dietitians walk into the target range,” says Busey.

Pritchett and Buppert pointed out that taking on tasks such as placing nasoenteric access devices may put an RD in a position that is no longer below the radar. The article “American Society for Parenteral and Enteral Nutrition and American Dietetic Association: Standards of Practice and Standards of Professional Performance for Registered Dietitians (Generalist, Specialty, and Advanced) in Nutrition Support” may be helpful in guiding professionals working in nutrition support.

Other areas of dietetics practice may also offer greater risks. Collins is seeing an increase in litigation for so-called bariatric surgery gone bad. “It’s a nutrition issue because the patient may lose too much weight or get dumping syndrome. The patient may not be following their multivitamin/mineral protocol and allege that the dietitian didn’t explain it to them,” she says, adding that prenatal care is also typically a sensitive area. In addition, Collins has seen cases in the prison system involving the provision of culturally appropriate foods and nutritional adequacy in solitary confinement.

The long-term care setting has everyone on pins and needles. “There are significant risks in long-term care facilities. You often have a patient who may die, and when that occurs, the family lawyer may seek opportunities for recovery. They may not do research to find out who it was that was responsible. They will probably sue everyone involved in the process: the nursing home, physician, and other healthcare providers in the facility,” says Busey.

According to Collins’ work observations, there are two other hot beds of risk: unintended weight loss and nonhealing wounds. Lubritz agrees, adding, “Somebody is losing weight, and what have you tried to do? How many times did you go back to the plan of care with new interventions? Did you talk to the family? Did you get the doctor involved? If they lose weight, develop decubitus ulcers, and you do not have proper defensive documentation, the liability falls on the care plan team and the dietitian.”

When it comes to tube feeding issues, Lubritz suggests that the care plan team approach the family regarding their wishes for tube feeding at the point of patient decline and subsequently document the meeting. “You don’t want the family to say later that they didn’t know how serious the issue was and that without a tube feeding, their family member could die. The physician needs to document poor prognosis as well when a resident starts to decline. Establish a good rapport with the physician so that the lines of communication are open when there is intervention needed by the physician,” says Lubritz.

Choking in residents that leads to wrongful death suits is another vulnerable area for dietitians, according to Lubritz. With developments in a controversial patients’ rights issue regarding refusal of treatment, if a patient doesn’t want thickened liquids or mechanically altered diets, they or their families can sign a waiver refusing these diets. “But these waivers aren’t holding up in court. The plaintiff attorney can say, ‘You’re the expert. You were paid to take care of the patient.’ It is a very difficult spot to be in,” says Lubritz.

“Another branch of liability for dietitians is the simple business side rather than the caregiver side, such as breach of contract,” says Busey. Collins suggests hiring a legal expert to give appropriate advice in the practice setting.

To Insure or Not to Insure
Is your employer’s liability insurance coverage enough to protect you? Pritchett and Buppert suggested that dietitians get at least $1 million for their own coverage. If a dietitian is covered by his or her employer’s policy, the liability limits may be shared by other defendants. “If you’re not putting your hands on patients, ordering, or prescribing, you may be able to get away with an employer’s coverage. But when something goes wrong, it’s nice to have your own attorney. It’s not all that expensive yet,” said Pritchett.

“When you are evaluating whether you need insurance, think about what can go wrong in your practice. Who can get harmed?” advises Busey, who wrote a September 2007 JADA article, “Do Food and Nutrition Professionals Really Need Professional Liability Insurance?” He notes in the article that all private nutrition practices need two types of liability insurance. The first is a comprehensive policy to cover liability arising from the operation of the business (eg, if a client is injured as a result of a dangerous or defective condition on the premises). A malpractice liability policy is the second type. The article advises that although malpractice liability policies are available from your insurance broker, the group rates negotiated by the ADA tend to offer the best prices and coverage.

“Dietitians should have insurance. Unfortunately, having an insurance policy increases the likelihood of the dietitian being named separately when a facility is sued. But I have it myself, and I require my dietitians in my practice to have it,” says Lubritz.

Six Tips for Minimizing Risk
If you’re looking for ways to practice dietetics more defensively, read on.

1. Give Good Care
“The issue is making sure that you are confident in the advice that you are giving and the treatment that you are providing,” says Busey. Pritchett suggested taking a proactive approach by looking at all areas of your practice, including regulatory, scope of practice, federal and state rules, legal standards of care, professional scopes of practice and standards of practice, and healthcare facility policies, protocols, and guidelines. The ADA’s Scope of Dietetics Practice Framework can be a helpful tool for this process. It is also important to maintain effective and efficient communications, establish clear roles that are aligned with regulated scopes of practice, and create and follow policies to guide interdisciplinary interactions.2

2. Update Your Skills
Changes in the field must be reflected in your practice as they occur. “Protect yourself by keeping up-to-date. The practice changes, and you have to keep up with it. In long-term care, dietitians may not be interacting with other dietitians or attending conferences,” says Collins. Review at least annually and comply with established clinical protocols, guidelines, treatment standards, or critical pathways for your practice setting or specialty.2

3. Don’t Accept an Unacceptable Job
“Dietitians need to stop accepting jobs that put them at risk,” says Collins. For example, if you accept a consulting contract in a facility that does not allow you sufficient time to do an effective job, you are putting yourself at risk. “They will ask you why you accepted this job. One case can wipe out your whole practice. It’s totally against the ADA ethics guidelines if you can’t deliver appropriate care to people,” Collins stresses.

4. Document, Document, Document
Just remember that well-worn adage: If you didn’t document it, it didn’t happen. According to Collins’ 2007 article “Minimizing the Risk of Litigation” in Extended Care Product News, “Frequently, the patient’s chart does not support the fact that optimal care in accordance with accepted standards was delivered. If the documentation is illegible, illogical, or incomplete, how can it be defended in a court of law? It is this very point that often leads to out-of-court settlements, even though the care was perfectly acceptable.” Height and weight inaccuracies, improper monitoring of meal intake, untimely follow-up on nutritional recommendations, and lack of documentation on tube feeding intentions are some problems Collins frequently finds in documentation.

“The documentation I see by dietitians is frequently below the accepted standard of care. It is often incomplete, follows no logic. It shows that dietitians don’t follow up with other dietitians, that there is no continuity in care from the hospital to the nursing home, and that there is no camaraderie between the professions. The legal system is three to five years behind the event. You probably don’t remember the patient and if your notes are so poor, it’s a problem,” says Collins.

“Make sure your notes and reports are well thought out and thorough. You need to have documentation that can help you re-create the setting,” adds Busey. Lubritz suggests thinking like a surveyor when looking at the chart. Did you do all that you could for that resident within the standard of care?

5. Keep the Family Happy
“Keep good rapport with the family. If they are happy with you, it is much less likely they will sue you,” says Lubritz. Making sure that you are adhering to food preferences and allergies, doing everything you can to address nutritional issues such as poor intake and weight loss, and communicating with the family about nutritional concerns and approaches that you are taking can help prevent misunderstandings down the road.

6. Give Respectful Care
“The best way to head off lawsuits is to treat people as you would want to be treated. Respect, comfort, courtesy, understanding, and professionalism go a long way. Most of the family members have never been in this situation before. Many have never been in a long-term care facility before and need a little compassion. Most persons do not sue people they like,” says Collins in her article.

The bottom line is that you should provide quality care to every resident, patient, and client you encounter. Your practice should be based on successful strategies that improve client outcomes and are based on sources of evidence, including research, national guidelines, policies, consensus statements, expert opinion, quality improvement data, and client preference.2 Do your job well, seek insurance for protection, and get on with being a dietitian.

— Sharon Palmer, RD, is a contributing editor at Today’s Dietitian and a freelance food and nutrition writer in southern California.

Is Serving as a Legal Expert for You?
Nancy Collins, PhD, RD, LD/N, was called on as a legal expert after 10 years of day-to-day experience working in long-term care. But she notes that serving as an expert medical witness may be more challenging than you think. “I see a lot of dietitians trying to do this who aren’t qualified as an expert witness. If you are not an expert in that area, you should not be doing it,” she says. Collins was recently asked to serve as an expert on a pregnancy case, but she refused on the basis that it was not in her area of expertise.
“The first question asked by lawyers is how much of your income is derived from legal work. They are not looking for a professional witness. They are looking for an expert in the field,” says Collins.

It also takes a great deal of fortitude to be an expert witness. “During a deposition, the opposing council will try to discredit you for the first hour or two, and often this can become contentious. It is the opposing attorney’s job to dig into your background, your education, your work history, and everything that you’ve published and show that you are not qualified as a witness,” says Collins.

If you are interested in serving as a legal medical expert, it may behoove you to take risk management and legal consulting training, Collins suggests.

— SP

Know Your Risks
Want to stay on top of your risk for liability? Sit down with these helpful reads.

American Dietietic Association (ADA): Code of Ethics for the Profession of Dietetics: www.eatright.org/cps/rde/xchg/ada/hs.xsl/governance_14954_ENU_HTML.htm

ADA: Considerations When Using the Scope of Dietetics Practice Framework Decision Tree: www.eatright.org/cps/rde/xchg/ada/hs.xsl/home_13709_ENU_HTML.htm

ADA: MNT Evidence Based Guides for Practice: www.eatright.org/cps/rde/xchg/ada/hs.xsl/events_5468_ENU_HTML.htm

ADA: Nutrition Care Manual: www.nutritioncaremanual.org

ADA: Overview of the Scope of Dietetics Practice Framework: www.eatright.org/cps/rde/xchg/ada/hs.xsl/home_13657_ENU_HTML.htm

Busey JC. Do food and nutrition professionals really need professional liability insurance? J Am Diet Assoc. 2007;107(9):1480-1486.

Collins N. Nutrition: Minimizing the risk of litigation. Extended Care Product News. 2007;122(8):8-10.

Joint Standards Task Force of ASPEN and the American Dietetic Association Dietitians in Nutrition Support Dietetic Practice Group, Russell M, Stieber M, et al. American Society for Parenteral and Enteral Nutrition and American Dietetic Association: Standards of Practice and Standards of Professional Performance for Registered Dietitians (Generalist, Specialty, and Advanced) in Nutrition Support. J Am Diet Assoc. 2007;107(10):1815-1822.

Lacey K, Pritchett E. Nutrition Care Process and Model: ADA adopts road map to quality care and outcomes management. J Am Diet Assoc. 2003;103(8):1061-1072.

Levine JM (ed). Medical-Legal Aspects of Long-Term Care. Tucson, Ariz.: Lawyers and Judges Publishing Co, Inc.; 2003

References
1. Cross AT. Malpractice liability in private practice of nutrition. J Am Diet Assoc. 1988;88(8):946-948.

2. Pritchett EM, Buppert C. Avoiding liability quicksand: How to plan your steps carefully. Presentation at the American Dietetic Association Food & Nutrition Conference & Expo; September 30, 2007; Philadelphia, Pa.