Whose risk is it anyway? Legal risk is just another way to say patient risk

I’m a clinical educator and AWHONN Fetal Monitoring Instructor, a nursing school professor and a staff nurse. So between patients, students, staff and providers, education is a big part of my work. But I’ve noticed in the last several years, it doesn’t matter what that class is, as soon as they know I review legal cases and serve as an expert witness, it’s all people want to talk about! The nurses who were confident at explaining complex physiology back to me get a weird look. The voices get more hushed. Then the questions start: “Well, is it true that…?” Fill in the blank. “I heard that if you document…” Fill in the blank. Some of these are along the lines of urban legends. Many are things I myself have heard in hospital mandatory risk classes. Very rarely are any of them based in reality.

I try to remind them, just as I remind you reading this now, that the legal risk is just another way of talking about patient risk. It’s not something different…it’s just patient safety. Did that help you relax? No?

The mindset of being afraid of ‘getting sued’ as a nurse makes so much sense! We are a people who care a lot and want to help. So a patient getting harmed or being angry is a major concern.  On top of that, we work in environments that can be fear driven. Even our units unintentionally reinforce this fear…we share horror stories...the risk management classes...the vague feeling of “getting in trouble” from leadership. So instead of feeling like we’re talking about patient safety it feels like we’re contestants on Fear Factor (the WORST reality competition show of the early 2000’s in my opinion).

You know what helps? Uncentering myself from the equation. If we look at this statement again: “Legal risk is just another way of saying patient risk”, I notice something else. There is my (largely fictionalized) legal risk and there is the patient's (actual) risk. You don’t come to work and take a legal risk. Your patient is the one with all the risks. Her body and her baby are taking the risks. Sure, she’s pregnant, the baby’s gotta come out somehow, but she is consciously choosing to bring herself and her baby to you. Start looking at every patient this way. It will change everything.

I also used to teach hypnobirthing, which admittedly is a far stretch from my current expert witness work. But in 2013, I was pregnant and I wanted to also take a hypnobirthing class from my friend Kristen Olberz. She is an amazing labor nurse who I look up to so much in how she navigates the inpatient world with a really strong sense of herself, her professional abilities, and centering patients. So, there I am in my hypnobirthing class. And for those who don't know, the whole point of hypnobirthing is releasing fears so we can be more relaxed in labor and experience less pain. First class we all are saying what we are afraid of. My other pregnant classmates are saying things like “Epidural!” “Tearing!” “A C-Section!”. When it was my turn? “Ummm dying…Yeah, I'm afraid of dying”. They really shouldn’t let labor nurses in birth classes, right? Sure, many of our patients aren’t like me, fearing literal death, but some do and most patients have intense fears about harm. 

And don’t we know these fears are real? We know we have a problem with mortality and morbidity in our country. And we know that we especially have a problem with the effects of systemic racism on our black and brown moms and babies. If you don’t believe the balance of risk is heavily tilted towards our patients and not tilted towards us, I’m not sure that any of the scary statistics I could share will convince you.

So again…whose risk is it anyway? Legal Risk is just another way to say patient risk. We as labor nurses and birthworkers have our own fears and trauma, and that is absolutely valid and in no way am I dismissing it.  But when it comes to the fear of ‘getting sued’ we need to stop centering our fears as the clinician and remember to center the patient by focusing on staying vigilant to the risks to them. Instead of being fearful, we need to focus on being their advocate. This patient, their body, and their baby is taking the real risks. What an amazing duty we have! A duty to be vigilant and advocate through consent and shared-decision making. A duty to focus on increasing your knowledge. A duty to understand the ways patients are preventably harmed, which drives malpractice litigation. It’s not a burden to practice this way. Believe me when I say it will bring relief and joy back to being a perinatal nurse. It will set you free.

Curious to know more about exactly how to do this? I’ve got a new course on legal risk coming very soon. Sign up for my email newsletter to be the first to know when it becomes available in early January!