As a nurse and a nurse advocate, I am passionate about protecting nurses and all ICU clinicians from falling victim to legal liabilities in the ICU.

The alarming reality is that when hospitals fail to train and support their teams in keeping patients as awake and mobile as possible, everyone from hospital administrators to bedside clinicians is vulnerable to legal liabilities.

If hospitals are not practicing the ABCDEF Bundle, they are not complying with standard of care and are allowing significant risk and harm to happen to patients.

The ABCDEF Bundle has been proven to give patients the best opportunity to survive and thrive.

Even with subpar compliance, it has been proven to decrease:

• 7-day mortality by 68%
• Coma and delirium by 25-50%
• Readmissions to the hospital by 46%
• Discharges to anywhere but home by 36%

It’s also important to note that these outcomes are dose-dependent, so the less sedation is given, and the more patients are mobilized, the better all of these outcomes will be!

We also know that early mobility specifically decreases:

• Hospital-acquired pressure injuries
• Long-term cognitive impairments
• Long-term physical disability
• Hospital-acquired infections
• Delirium
• Falls

In addition, we know that avoiding sedation decreases:

• PTSD
• Death
• Time in the ICU
• Physical disability
• Chronic brain injuries
• Time on the ventilator
• Discharges to care facilities

 

The ABCDEF Bundle was first implemented in many ICUs throughout the U.S. between 2016 and 2019.

Unfortunately, in many units, the only evidence of the ABCDEF Bundle today is in charting prompts in the electronic health record (EHR).

So, what are the legal liabilities in the ICU when a team fails to provide the evidence-based care outlined in the ABCDEF Bundle?

Let’s take a deeper look at this issue and find out.

 

How Can Failing to Practice the ABCDEF Bundle Cause Legal Liabilities in the ICU?

In Episode 179 of Walking Home From The ICU, I interviewed Maggie Ortiz, RN, MSN, who is an expert nurse advocate.

During our conversation, I was shocked to learn that when it comes to the ABCDEF Bundle, hospitals, their leadership, and the clinicians who staff them, are vulnerable to several issues related to what would be considered false documentation.

Believe it or not, this is a very common occurrence, as certain elements of the ABCDEF Bundle are required in the EHR, but often, the charting is not accurate, and this is where problems can arise related to false documentation.

To put things in perspective, below I’ve detailed several examples of how this sort of thing tends to happen in the ICU.

 

Richmond Assessment Sedation Scale (RASS)

The Richmond Assessment Sedation Scale, or RASS, is a tool to measure patients’ psychomotor activity and is most often used to titrate sedation.

For example, when a provider orders a continuous sedative drip, it is usually ordered for a RASS score rather than a certain dose of sedation.

Thanks to past ABCDEF Bundle initiatives by the Society of Critical Care Medicine, most sedation order sets have a preset RASS score range of 0 to -2.

This means that patients are somewhere between completely awake to sedated to the point of being able to open their eyes to voice and make eye contact for less than 10 seconds.

RASS should be charted every 2-4 hours and PRN for patients on continuous sedation or analgesia.

As I have teams perform manual audits, they compare the prescribed RASS to the documented RASS to the actual RASS the auditors observe at the bedside.

Among the numerous teams that have provided me with their audit results, 50-80% of their documented RASS scores are inaccurate.

And as I discussed in Episode 134 of Walking Home From The ICU, about 60% of those inaccurate scores are at least two points too high.

This means that nurses are charting a RASS that reflects light sedation when patients are actually deeply sedated. This is false documentation, similar to charting fake vital signs.

 

Confusion Assessment Method (CAM-ICU)

The Confusion Assessment Method, CAM-ICU, or CAM, is a powerful tool used to diagnose ICU delirium.

It’s the equivalent of using creatinine to assess for renal function.

Depending on the facility and state, CAM screening is required to be done and documented 1-3 times every 24 hours.

Some teams may seem to have high rates of compliance with CAM charting, but upon further investigation, it is very common to see “UTA” charted, which means unable to assess.

If a nurse documents a RASS of -2 and “UTA” for CAM, this may be a sign of false documentation.

The only valid possibility is that the patient does not speak English.

Otherwise, the patient is sedated deeper than a RASS of -2 and the RASS score is falsified, or the nurse did not perform the CAM at all. This is false documentation.

It is also very common for nurses not to perform the CAM, but rather, base their documentation off of a patient’s ability to follow commands.

This is also false documentation and can be considered equal to falsifying a lab value.

 

Mobility Screening

Mobility screening is required in the EHR to document a patient’s level of mobility, and it’s usually required every 12 hours.

It may seem compliant if there is any charting present, however, a closer look often reveals “bedrest” documented for most patients in the ICU.

But when a patient’s true mobility level is not bedrest, and there is no contraindication to mobility, this can also be considered false documentation.

 

Spontaneous Awakening Trials (SAT)

The term spontaneous awakening trial, or SAT, refers to the process of turning sedation and analgesia off to assess for continued necessity of sedation and analgesia.

This should be done at least every 24 hours unless there is a contraindication, and it should be charted as either a pass or a fail.

However, if a SAT is charted as failed, but there is no sign of sedation being turned off, this may be a sign of false documentation.

And if it’s documented that a SAT was failed and the reason was agitation, yet the highest RASS is +1 (restlessness), this may also be considered false documentation.

 

Spontaneous Breathing Trials (SBT)

The term spontaneous breathing trial, or SBT, refers to when adjustments are made to the ventilator that allow the patient to take their own spontaneous breaths with minimal to no support from the ventilator.

This is used to assess the patient’s readiness to be taken off of mechanical ventilation.

If an SBT is failed, then the respiratory therapist is obligated to document which criteria were unmet.

However, it has been observed that this documentation can be falsified with answers that are untrue and do not apply to the patient, and this is also considered false documentation.

 

More Examples of Common ICU Legal Liabilities

Aside from the aforementioned issues associated with false documentation, there are many other issues related to the ABCDEF Bundle that can create legal liabilities in the ICU.

Whether it’s problems with prescriptions, failing to properly assess each patient, failing to properly treat them, or something else altogether, these missteps can cause some serious legal issues.

With that in mind, let’s look at several other potential legal risks in ICU care.

 

Administering More Medication Than Is Prescribed

When nurses sedate patients to a RASS that’s lower than what’s been prescribed, they are giving more medication than what’s been prescribed.

The medications in question include controlled substances like opioids and benzodiazepines, and when nurses do this, it’s basically like practicing medicine without a license.

One study showed that despite an ordered RASS of -3, 70% of patients were deeply sedated to a RASS of -4 or -5.

This is alarming considering that deep sedation is an independent predictor of death.

We see this trend in the research, where although the charted RASS scores were similar between day and night shift, the doses of sedatives and opioids were increased at night, which is likely false documentation.

When a SAT is failed, most hospital policies require nurses to resume the sedation at half of the previous dose.

Unfortunately, it’s a common cultural practice to resume the sedation at the previous dose, and sometimes even increase the dose.

This is giving more medication than has been prescribed, it’s going outside the RN scope of practice, and it’s against hospital policies.

 

Failure to Assess

In addition to false documentation, and going outside the scope of your practice, failing to properly assess patients can also cause significant legal liabilities in the ICU.

Having said that, let’s look at some situations where ICU legal liabilities can be caused by failing to properly assess patients.

 

RASS

When RASS documentation is not performed, this is a failure to assess.

In these situations, high risk and controlled substances are being given without monitoring and/or accurate doses.

And obviously, if this sort of thing ever went to court, it could be extremely damaging to both the hospital itself and all the clinicians who were involved.

 

CAM-ICU

In some ICU teams, CAM-ICU has 0% documentation, which means that patients are not being screened or assessed for acute brain failure.

But when you consider that delirium doubles the risk of dying in the hospital, this failure to assess is dangerous to patients and a significant liability for both hospitals and clinicians.

 

Failure to Treat

Aside from everything I’ve already mentioned, failing to properly treat patients can also create major legal liabilities in the ICU.

That being said, let’s look at several ICU legal liabilities that can be caused by failing to properly assess patients.

 

Delirium

Unfortunately, most ICU teams are not trained to adequately treat delirium.

This results in a failure to treat this condition using the proper interventions like avoiding medications that cause delirium, and facilitating real sleep, family engagement, and mobility.

Because when patients demonstrate symptoms of delirium, such as restlessness, anxiety, confusion, and impulsiveness, they are often given more deliriogenic sedatives.

But giving sedation in response to delirium could be likened to giving bacteria for sepsis.

Yet, in the ICU, this is common practice, and it’s considered culturally acceptable to respond to delirium with even more sedation.

 

ICU-Acquired Weakness

Patients quickly lose muscle mass and function in the ICU while sedated and immobilized, and this can lead to the life-threatening condition known as ICU-acquired weakness.

Most ICU teams are not trained to prevent and treat this condition, so when signs of this are observed, like limb weakness and failed SBTs, the response is to resume sedation and/or keep patients in bed.

The proper treatment for ICU-acquired weakness is to initiate mobility, but the cultural response is to chart “bedrest” as their level of mobility and to avoid mobility altogether.

No matter how you look at it, this can be considered a failure to treat.

 

Mobility

Physical and occupational therapists face significant challenges when it comes to properly providing their services in the ICU.

If they’re fortunate enough to be consulted, they still face barriers related to sedation and a lack of interdisciplinary collaboration.

For example, culturally, nurses have the final say in many ICUs, and it’s common for nurses to tell physical and occupational therapists, “This patient cannot be mobilized.”

Yet, physical and occupational therapists have their master’s and doctorate degrees, and they specialize in early mobility.

That being said, if they were to be questioned about not mobilizing a patient they were consulted on, would “The nurse wouldn’t let me,” hold up in court?

Or would they also be held liable for failing to prevent, assess, and treat delirium and ICU-acquired weakness?

 

Elder Abuse

As our patient population in critical care continues to age, we must provide age-friendly treatment.

But automatically sedating and immobilizing geriatric patients does not comply with the 4Ms framework being rolled out throughout our health care system.

With that in mind, ICUs that are administering benzodiazepines, prioritizing deep sedation, failing to prevent, screen for, and treat delirium, and immobilizing vulnerable geriatric patients may not fare well in the courts.

 

Final Words

ICU culture is a powerful and blinding force that can stop clinicians from questioning what is right and what is best for patients.

As a result, the potentially illegal practices I detailed above tend to be performed in ignorance.

As I explained in Episode 1 of Walking Home From The ICU, even I can relate to this, as after working in an Awake and Walking ICU, I too fell into the same harmful practices as my colleagues when I worked in other ICUs.

In any case, clinicians deserve to be educated and empowered to provide the best possible care for patients using the most up-to-date evidence-based practices.

But when an ICU culture does not allow for and encourage these best practices, everyone is at risk of being held legally liable.

It is terrifying to realize that major auditing organizations and local leadership are unaware of the importance and impact of the ABCDEF Bundle, not least in how it offers protection against potentially devastating legal liabilities.

But as I discussed in Episode 95 of Walking Home From The ICU, what if reimbursement agencies realized that failing to practice the ABCDEF Bundle was increasing health care costs by 30%?

And what if survivors knew about all of this?

What if the many survivors whose stories I documented decided to hold the hospitals who treated them liable for the substandard care they were given?

What if Susanne sued the hospital where she was treated for the 13 extra days on the ventilator, delirium, ICU-acquired weakness, permanent PTSD and cognitive impairments she suffered while under their care?

And what if Jim sued the hospital that treated him for the tracheostomy, PTSD, cognitive impairments, physical disability, and preventable three months in the ICU/LTACH he had to endure?

In the near future, when the world realizes that what is considered normal in the ICU is not right, there may be a mass awakening to the true reality of these practices.

Will your team be at the forefront and already practicing the ABCDEF Bundle when this happens?

 

Do you want your team to master the ABCDEF Bundle? If you’re ready to create an Awake and Walking ICU, please don’t hesitate to sign up for a free consultation.