These are very difficult and often morally-taxing times, especially for nurses. Facilities are anticipating or already experiencing record census surges, and many are operating under facility disaster plans authorized by a continued State of Emergency
declaration. Governor Brown’s Executive Orders and guidance from the Oregon Health Authority can be confusing and allow facilities to suspend staffing plans and allow them to require mandatory overtime. This Frequently Asked Question (FAQ) document
attempts to answer many of the questions that we are receiving, based upon currently available guidance, but if you have questions, be sure to contact your Labor Representative. It is important to remember that this FAQ is no substitute for legal
advice specific to your individual situation.
Q: Can a nurse be disciplined for charting less than normally required?
A: It depends. Incomplete charting could be a basis for discipline, but not if you are following policies. The amount and type of charting varies from employer
to employer and from setting to setting. Charting is defined in an employer’s policies and should be standardized in a given unit. A nurse should always follow the policies that are in place, and in the current crisis, this usually means modified
charting requirements to accommodate crisis staffing.
Q: Can OSBN discipline an RN for exceeding their scope of practice?
A: Yes, the Oregon State Board of Nursing (OSBN) can discipline for exceeding scope of practice. This includes performing activities, intervention and roles that exceed
the level of nursing at which you are licensed and that which exceed your individual scope of practice. OSBN defines individual scope of practice as: “…an individual licensee’s demonstrated competency that has been developed and maintained through
practice experience and through engagement in independent and formal learning experiences. Individual scope of practice is based on the licensee having the knowledge, skills, abilities, and competencies necessary to accept a client assignment, perform
a procedure or intervention and take on different roles within the practice of nursing.”
There must be policies and protocols established by the institution to guide crisis staffing. Know the boundaries of your licensure, know the limitations of your individual scope, and remain within both. If you are asked to perform an activity, intervention
or role that is outside of your level of licensure or individual scope, you must advocate for yourself and for the safety of your patients.
Q: Does a nurse’s legal liability increase as a result of changing practice environment/expectations?
A: Not necessarily. The key component is to follow policies and protocols established by your employer and remain within your level
of licensure and individual scope of practice as discussed in the previous question. Emergency declarations have been made at the federal, state, county and facility levels, and with these declarations, facilities have the authority to alter practice
environment and documentation expectations to ensure our healthcare system continues to provide the best care possible to the most people.
Q: What is the standard for care under these emergency circumstances?
A: The most important question you should ask yourself when considering whether or not you are at risk for license discipline is “Would a reasonable and prudent nurse
faced with these circumstances do the same thing?”
If an entire unit has moved to crisis staffing, modified charting, modified care standards, thorough policies and protocols are in place defining the modifications, and your colleagues
are following the modified care environment, then it is likely reasonable. According to the American Nurses Association, crisis conditions such as this pandemic often require a change to a utilitarian framework of care, compromising quality by necessity,
and that will be considered in any liability investigation. Examples of the application of this standard include:
- Would it be reasonable for a nurse to attempt to intubate a patient who is in a crisis because the provider is busy with another critical patient? No, a reasonable nurse would not, they would stay within their individual scope and licensure scope:
insert oral or nasopharyngeal airway, provide increased oxygen through an appropriate mask, reposition patient, etc.
- Would a reasonable nurse be part of a team taking care of a patient population that they are unfamiliar with? Yes, a reasonable nurse would participate in a team and would limit the care they provide to those tasks for which they have the “knowledge,
competencies, skills, and abilities” to perform.
Q: The pandemic is resulting in nurses being asked to work in areas where they don’t have direct experience. Is it true that we have immunity for potential liabilities during the crisis?
A: No, there is no “immunity” in Oregon for malpractice
claims arising out of the COVID crisis. However, the standard of care that a nurse is held to for civil liability takes into account the extraordinary circumstances we are all under. Similar to the standard for OSBN, the key question that establishes
that standard for civil liability is: “Would an ordinarily careful nurse faced with these circumstances do the same thing?” Unfortunately, there is no bright line when it comes to civil claims, but in practice Registered Nurses are rarely named as
defendants in medical malpractice cases. The facility is far more likely to be named as a defendant and nurses who are acting in the course and scope of their employment should be defended and indemnified by their employer. However, the safest course
is to have your own liability coverage as well.
Nurse Services Organization, a national liability and license defense insurer, states: “Since there is lack of clarity in terms of immunity, it is prudent to not presume you have any immunity.
Further, plaintiff’s counsel can file suit, immunity or no immunity, if the plaintiff’s counsel believes the client was injured and that injury was the direct result of the nurse or other healthcare professional providing or failing to provide professional
services. If a suit is filed, nurses will want to have their own malpractice insurance coverage to ensure their best interests are represented. In the best-case scenario, the suit brought against the nurse will be deemed baseless and their insurer
will work to get the suit dropped/dismissed.”
Q: Can I refuse a patient assignment?
A: Yes. A nurse can refuse an assignment that they do not have the knowledge, competencies, skills, and abilities to safely care for. You must follow your best nursing judgement, and if you
choose to decline, you should document the situation as clearly as possible. You should be able to clearly argue with evidence as to why the assignment was unsafe in your professional nursing judgment and why any other reasonable nurse would also
have refused the assignment. According to the OSBN, "Refusal to accept an assignment or establish a care relationship with the patient or patients does not constitute patient abandonment. Such refusal may constitute employment abandonment and would
then fall under the employer/employee relationship." When determining any license discipline, the OSBN has acknowledged that, “it is unfortunate when a nurse is placed in a position to have to decide between one or the other: being gainfully employed
or adhering to the responsibilities of nursing licensure in protecting the patient.”
ONA has the ability to help with your employment through your Collective Bargaining Agreements but has limited ability to help with license discipline if it has been evidenced that you breeched the Nurse Practice Act. When in doubt, seek advice from your
Labor Representative!
Documentation that would be helpful includes emails and other written communications and copies of policies and protocols.
Q: If my assignment becomes unsafe at any time during my shift should I complete an SRDF or an OHA complaint?
A: Yes. Staffing Resource and Documentation Forms (SRDF) are critical to documenting what is happening, as well as helping
ONA understand where hot spots are within the state. To complete an SRDF, go to www.oregonrn.org and click on the “Report a Staffing Issue” button at the top of the page. You can also submit staffing complaints directly to OHA. There is no connection
between the two forms, as SRDFs are only sent to the people that the submitting nurse chooses to send them to and OHA complaints are private until the complaint is fully investigated, but both are critical to fixing the staffing issues plaguing our
state. It is important to remember though that completing an SRDF or OHA complaint do not absolve the nurse of their responsibilities under the Nurse Practice Act.
Q: What is the responsibility for nurses who are supervising non-licensed personnel, such as students and National Guard service members? How will a nurse know what the skills and competencies are of the individuals they are delegating to?
A: Per OSBN: “It is the responsibility of the organization employing both the RN and the UAP to assure that their staff is educated and competency … not the individual RN assigning the activity or procedure. It is the responsibility of the RN to know
the activities or procedures that UAP staff members are authorized by the employer to perform in the setting …The RN is also responsible to determine if a client’s condition is appropriate for an activity to be assigned to the UAP to perform for a
client.”
Q: Can I be fired if I refuse to get the COVID-19 vaccine and do not have an exemption?
A: Yes, under the current rule implemented by Governor Brown, health care workers need to be fully vaccinated by October 18, 2021.
Q: Where can I find the full language of the Oregon Nurse Practice Act?
A: The full text of the Oregon Nurse Practice Act can be found online here
Q: Where can I find the text of Governor Brown’s recent order eliminating weekly testing and requiring vaccinations for health care workers?
A: The full text of Governor Brown’s order, Oregon Administrative Rule (OAR) 333-019-1010, can be found here
Q: Where can I find more information on the specific impacts of the recent rule on health care workers?
A: You can find the Oregon Health Authority’s “Healthcare Provider and Healthcare Staff Vaccine Rule FAQ” online here
Q: Should I have liability insurance?
A: Yes. Visit www.nso.com to learn more.
Q: I am worried about facing discipline from OSBN because of crisis staffing and standard. How will OSBN decide to discipline nurses?
A: One factor that OSBN looks at is “would a reasonable nurse do the same thing in the same
situation?” While you may experience new and uncomfortable care environments, you must stay within your professional and individual scope of practice – and this requires assessment of the care environment, your assignment, and your skills with
reflection on would colleagues with similar backgrounds engage in the activity.
Additional Online Resources
- ANA Crisis Standard of Care COVID-19 Pandemic
- Protecting Clinicians from Civil Liability During a Public Health Crisis: Legislative and Professional Efforts
- ONA Declining Unsafe Assignment Documents
- Ethical Framework for Nurses and Institutions During COVID-19 Pandemic
- Nurse Practice Act Definitions: Division 6 of the Nurse
Practice Act provides standard definitions
- ANA’s Code of Ethics
