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Fear of “liabilities” is often a barrier to keeping patients awake and mobile in the ICU. Yet, we know that the ABCDEF is evidence-based best practices. So what are the legal liabilities to a hospital, leadership, and bedside clinicians of current cultural practices? Maggie Ortiz, MSN, RN joins us now to share her expert perspective.

Episode Transcription

Kali Dayton 0:00
This is the walking home from the ICU Podcast. I’m Kali Dayton, a nurse practitioner and ICU consultant. I help teams create awake and walking ICUs through evidence based sedation and mobility practices by hearing from survivors, clinicians and researchers will explore how to give ICU patients the best chance to walk out of the ICU and go home to survive and thrive. Welcome to the ICU revolution. You throughout my consulting journey, I have encountered a lot of fear about liability, doctors, nurses, RTS, PTs, OTs, everyone fears liability of keeping patients awake and mobile. This episode, we’re going to dive deep into the surprising liabilities of our current cultural practices that do not align with the ABCDEF bundle with an expert. Maggie Ortiz. Maggie Ortiz, thank you so much for coming on the podcast. We’ve been friends for a long time. I’m thrilled to have you be here. Will you to our audience?

Maggie Ortiz 1:19
Yeah, so as as well, as well, ditto, ditto. Do super impressed with everything you do follow you. So I’ve been a critical care nurse for 24 years. Started with an associate’s degree, which I always like to interject, because it was my way, you know, went into into the world, where I spent a year residency in an ICU, which I do believe in support as well. That gave me my nursing foundation. So I think that’s very important. Spent most of my 15 years in an ICU, but I went on to do some other things while I was still doing that foundation. I did the ER, I did pre op, I did pacu IR, travel local. Went on to work in the cath lab, where that’s my love. Actually did some electrophysiology, but I am not an EP nurse, so did a lot of procedural when I go on to get my masters. I did a bridge. I did a BSN to MSN in leadership, which I’ve never been in. I just don’t fit that hold. But I focused on procedural sedation, creating a tool that the scheduler could use eight questions to discriminate whether it should be an RN sitting that patient or an in the anesthesia department. Because I found primarily in interventional radiology, where we see some of the sickest patients and where the patient does have to be sedated. As a person, the cath lab, we don’t care if you’re sedated. We ain’t doing nothing. You’re painful and you are sometimes unstable, but I are sickest patients are in sedating. I’ve seen deaths around that area. Have they just involved anesthesia? So I created this just like little tool. And I did spend some time, as you know, out of Board of Nursing. I went to formal training to learn the investigative process. I went back within the agency. Only stayed for about six months because I did have concerns about what I now know due to be some due process, things that you know I’m pursuing law school because I feel that passionate about it. So now I advocate for us. I help nurses in their legal teams when they’re under investigation, if you’ve seen them on the news, I’m more likely than not know them, and I just I advocate for our profession like you do. I call a little like nurse love, tough love. Sometimes it’s not always easy to hear, but I’d rather you hear before you get that letter than after you get that letter.

Kali Dayton 3:46
Absolutely, and I have helped attorneys draft up defense letters help them, as in, I drafted the defense letters for nurses. And so I spent years as a side thing, helping with that advocacy. I feel really passionate about protecting nurses. So what we’re going to talk about today can be a little bit sensitive, but I just knew that you were the woman for the job, because we’re going to be talking about legal liability is when it comes to how we’re practicing the ABCDEF bundle. Add a chart reviews, trying to understand samples, case studies passed, and current patients that are in these ICUs I keep seeing things that could look really bad having drafted these defense letters, going through nursing documentation and then trying to help them defend themselves. I carry that perspective with me. Looking at these cases, even though they’re not under fire currently, yet, I see where that could become a liability in the future. The fact that it’s so common that it’s even joked about on social media, it makes me really nervous for nurses. So this discussion is not to encourage liabilities for nurses, but rather protect nurses against liabilities. So you are the advocate for nurses, Maggie, I mean, your website is advocate for nurses, right? Yes. So you have also been in critical care. Nurse, how did you perceive my information when you were first exposed to it?

Maggie Ortiz 5:07
I was just like, wait, what we’re doing? What that’s harmful? That’s the deviation from the standard of care as we know it. What in the crab cakes? What is she doing? She’s risking her license. Now, where I sit today, I think that you’re a badass, and that I know that our degrees are all in science. And what is science, and it is evolving, and it does take someone bucking what we do know as traditional, as long as it’s done in an organized fashion like you’re doing, taking those things into consideration. So knee jerk as a prior investigator like you, I have done expert work as well. I was like, Oh, wow, that’s a lot, because you and I both know that we’re indoctrinated into culture. When I came out into the world, I saw what the seasoned nurses were doing around me, not only what I was hearing, but then what I was seeing. So we mirror just the behaviors that are environment as well, especially when you’re under five years. And currently you I don’t know if you do know that the average experience of, let’s just say the ICU nurse as a rule, is 2.6 years, 2.6 years.

Kali Dayton 6:30
And so there can be a lot of not really knowing what science is and deviating and or being even open to some protocols, like you’re talking about some of the stuff that you’re doing in episode 156. I interviewed a nurse that understood the research, but as she was oriented into the ICU, she was almost being persecuted for trying to Practice the research for questioning the cultural norms holding up those standard questioning the RAS that was being documented. When she would do her RAS documentation, her precepting nurse, would say, Whoa, you documented a RAS negative four, but they’re a rasa negative two. And she said, I went through YouTube videos, I looked at the graphs, the charts, objectively. It was not a rasa negative two, but she did not want me to chart a rasa negative four, according to my assessment. So they’re not even encouraged to practice the evidence, right? There’s so much culture that’s defining their practices, but when someone objectively is looking through these charts, they’re going to be holding up their documentation against the science, against what’s actually happening. For example, when I’m looking at these case studies doing a chart review, I’m looking at what the rest is documented, but I’m also looking at their documented respiratory rate, and what’s the respiratory rate set on the ventilator. So if someone charts a rasa negative one or negative two, but they are writing the event consistently. That kind of gives me some objective information to suggest that that was an inaccurate RAS documentation which could be off documentation. So what does that look like with liability? What’s your perspective Maggie on these RAS documentations? Because when I have teams do manual audits, 50 to 70% of these rat scores are inaccurate. What does that mean to the bedside nurses?

Maggie Ortiz 8:05
Why do you? Why do you? And in your expert opinion, because I wasn’t even thinking about where I learned this tool. Now, it wasn’t in general orientation, right? Because that’s not something that happens. And I was trying to remember back now, would this have been in my residency, I’m sure it was. But along with, oh, I don’t know, 5,000,047 things that I was learning along that way, you know. I mean, so what’s the education? Is that for Danes, there’s no consistency. I’m going to say there’s no consistency. Now, you are the expert. I’m not. So what is it?

Kali Dayton 8:40
Well, when you say that the average experience time for our nurses is 2.6 years, well, that puts our current ICU nurses, and large majority into COVID onboarding orientation. So one, the RAS has not always been around. So when you first started the ICU, the RAS did not exist, correct?

Maggie Ortiz 8:59
And I was trying to think what we were using. We were using, we were using Riker, probably, is that, no, what? There was something else. Again, I should know this, but it wasn’t,

Kali Dayton 9:09
I mean, sedation levels back in the early 2000s not to date you, but it was, thank you.

Maggie Ortiz 9:15
but it was, it was not part of it. Cam, wasn’t part of it. Research that was still happening.

Kali Dayton 9:19
Yes, so the older nurses, maybe, I mean the really old ones, like they mean, obviously, chart on the raft, but it wasn’t a formal education. Our newer nurses, maybe they were educated. They’ve told me is one. Either I was never taught this, or no one explained to me why I was doing this, or really how to do it. I was just given this chart, and said chart on this, just refer to this. And there’s a drop down thing that happens in the EMR that guides you, but when you are under fire, when you’ve just kind of done the same thing, why not just chart what someone else started right before you? It’s probably always too what do those things really mean? So when I each team’s on site, and we break it down to. Here are the responses by touch, his responses by voice. Their eyes light up. They’re like, Oh my gosh. I never thought of it that way. I was never taught that. And they’re mortified. But here they’ve gone now years, just doing what everyone else was doing. But if this comes under review, if a family member is like, wait, I was there. I touched my mom’s hand all the time. I was always touching her, and she never opened her eyes. She never responded. But in documentation, she was always a negative too, but she never opened her eyes to voice. Okay, let’s

Maggie Ortiz 10:30
walk this through. Yeah, a lot of things are, I don’t think that you realize that I’m realized, and as you’re saying, some of this stuff, because let’s just play to the fact that you haven’t had you’re in one of these older nurses, and you’ve never had any education. So now you’re on the stand, because that’s always the worst case scenario right now you’re on the stand. Let’s just say this is civil litigation. Now a nurse is 98% more likely to stand in front of a board of a nursing and that’s something that’s quoted by Ed boss. She’s the ANA lawyer, not by Maggie. That’s all stuff that’s researchable, so you’re more likely to stand there, but we are talking about civil litigation, so you’re on the stand. So I’m the opposing counsel, right? And I’m actually a nurse who’s going to be cross examining you, and there will be nurses in the backdrop you and I know this as well, even if the attorney is not a nurse. So I’m like, so first five to seven minutes of your deposition, you know this, I know this. Are talking about your education, stroking yourself. I’m a great ICU nurse. I did all this yada yada yada. Then I’m going to have your employee file, and so that’s going to give me a check box of what you learned on the unit, because I’m going to have your general orientation, which I’m going to ask you about up front, and we’re going to bleed into Okay, so let’s move to your unit, and you’re going to think I’m your friend, right? You don’t know that I’m helping you dig your hole. So let’s talk about it. So I’m looking at you. Oh, wow. Tell me about all your words. And so let’s get down to your unit. And so how are you assessing the patients? Yada yada yada. So show me in your employee file where, let’s just see it’s called a rascal. To find that for me. Tell me what that means, and show me in your employee file where you got that education, and so it was the time you learned in school. Okay, so if you didn’t get it on your unit, then show me so, but you’re documenting. But okay, so you don’t know what it is, but you’re documenting in the patient’s medical record. Nurse, okay, so now let’s look at the Nurse Practice Act, because in Texas, I think, and again, I wrote this down for you folks, 301352, says that you’re supposed to know when you’re documenting stuff in the medical record. So let’s just go back So did your nursing leader, because they’re going to try to hijack your organization as well, because they want to sweep in that, because that gets them more money, shows a different level of negligence. So is this something like your preceptor? Do you see what I mean? You’re if you’re documenting something as a nurse, and you don’t know what that means, the responsibility is on us, to a certain degree as well, to get that level of education with my preceptor when you first get hired. Because we’re professionals, and if you don’t know we do have to ask for what we need, you would say you’re orientating me. And I was like, oh, Kelly, so I’m saying, what was that acronym you use? I don’t know this. I didn’t learn this in school. Whatever. Can you guide me towards some education? Where would I find this? Walk me through this? Whatever that means. And honestly, the ICU manager and should have a policy this should be something part of the new higher education training and knowledge to understand anything that you’re ever documenting in that’s unit specific. And it doesn’t matter if it’s labor and delivery the emergency room, a nurse having to go to ESI training. I had to go to ESI to triage. ESI is additional education that nurses learn how to triage that scale. So I don’t care what it is that we’re learning this. You’re just referencing the RAS ra score. So it doesn’t matter what you’re learning. If you’re document something in the medical record that dictates the treatment plan, you got to know what that means. So when you’re doing these chart reviews, or your leadership’s doing these chart reviews, and the leader needs to go to the nurse and say, okay, so it looks like your documentation doesn’t align, possibly with what maybe the physician is documenting, as far as alert and orient, whatever that is, you’re saying negative four. But all of this is not aligning. And when it’s under in a court of law, or swinging back to that court of law, there’s all these discrepancies, and now you’re sweating, sweating, trying to defend these discrepancies. And it’s not, it’s just we’re not trained that this is not your world. It’s theirs. It’s theater. They’re going to want you to sweat because now you’re going to be inconsistent. Now the jury is from the local grocery store, right? You see when it’s just it’s not a good look, it’s not a good look. And

Kali Dayton 14:40
I also see with our cam screening. So when we consider confusion assessment method as the only way to really identify acute brain failure, organ dysfunction, a life threatened organ dysfunction, and we go back through the charts after someone’s had delirium and whether they died, maybe they’ll they’re suing because they have picked they have this cognitive impairment. Is whatever reason, maybe they’re bringing this back, saying the team didn’t prevent this from happening, didn’t tell me it was happening. Did they even identify that was happening? They didn’t treat it. And now I’ve had these repercussions, or now my father’s passed. How does that look? When we look through documentation and we see unable to assess all over and that’s what I see a lot, is they will document, maybe a rest of negative one, but then the cams is unable to assess. Now, in our dashboards, in our eight FBO dashboards, it looks like charting is compliant, because they charted something for the cam, but looking down into the nitty gritties, they’re not really assessing the cam. What does that look like on the nurse? Usually not just one nurse. It comes in groups, right? If the past person started unable to assess, that’s what the next person is likely to put as well. But if you’re really not brass negative one, you can assess a cam, and you should assess a cam, so that’s a failure to assess, diagnose and likely treat as well. Or the RAS is not really a negative one. It’s really like a negative four, and that’s why you’re unable to assess either a way there are some false documentation happening or some what would you qualify it? Maggie, like negligence. Something is happening that is not best practices, and it’s a bad look and bad things happen. It’s

Maggie Ortiz 16:15
falsifying documentation honestly, because if that assessment is a negative, one is not unable to assess you, and I know that, right? That’s not, that’s not the epitome of that description of that criteria, correct? Because that’s basically what it is. And so if everything else to include other providers are not consistent, and we’re not necessarily the experts, now you have neurology MDS coming in, and their documentation is gravely distant. Ours and cultures never defense. I can tell you the last case that I was deposed in the nurse under oath said, for reasons that were deviations, that it was the culture of the unit that’s reportable, conduct of a board of nursing. I was a prior investigator. You cannot say that at any time that there’s civil litigation and there are deviations. So with civil litigation, let’s just tell the audience it’s duty, breach of duty, causation and injuries. That’s for civil litigation. And like criminal order, nursing, all there has to be is duty, and then there was a deviation. None of that other stuff matters. If you deviated from the scanner to Karen, you created a duty as a relationship to the patient. You took report you were managing that patient in whatever capacity, and then there was that duty. So any deviation in documentation, management of medication, of tools, can be reportable. And all the family has to do is just say there was, and now there is an investigation that will be opened that has nothing to do with civil or criminal litigation. The they are the board will have to investigate that, and there’s no statute of limitation for a board. And what’s

Kali Dayton 17:56
interesting is, as I’ve interviewed families and survivors, and we’ve had them on the podcast, they know when a nurse comes in and increases sedation, the patient knows the patient is afraid of those certain nurses. The family members know they want to say overnight, because they know that it’s going to increase overnight. I don’t think they really knew or know now that could be reportable. That’s against best practices, there’s such a liability. And the people that I’ve interviewed, most that I talk to, they don’t want bad things to happen to nurses.

Kali Dayton 18:28
They just want the system, yeah, but if you get someone that is that person, especially if something bad has happened, and they want some sort of acknowledgement, this could be ground that they could use to say while you remember, on these certain nights the sedation went up, or they became less responsive. And we could go back in documentation and see the propofol went from 30 to 50, but the rest is still negative, one the whole time.

Maggie Ortiz 18:52
And that’s quant. And what you and I just touched on that’s all quantifiable in a court of law that that a pharmacist could look at it, you and I would look at it. This is something that’s easily quantifiable, and with other adjunct things I’ve seen where they’ll add on even Seroquel for PRN or document stating agitation when the respiratory rate, the heart rate doesn’t even match these things that we know and science supports, and no one else is documenting and but going up on the sedation, some cultural practices that you already know about that again, not that I feel like when I’m saying this, that I feel like this is done with Mal intent. I feel like that is cultural when bathing, turning a patient, some of these things that we’re told or practice, you need to increase the sedation or bolus, then, because you’re causing them pain, a P, P, assume pain is present. These are all bad practices that we are, I believe, taught and again, not with the poor intent of the nurse, just because the nurse. Feels like I see these other nurses do it. I’m told this is painful, which we can logically even think as well. They have a million lines, right? But that those are poor practices the and then you’re documenting scores that are not valid and could be because they aren’t. They are truly unresponsive. It’s because you bolus the home, right? And

Kali Dayton 20:19
I’m passionate about nurses having autonomy, yes, and having orders and protocols that allow for that. I have seen units in which the protocols are so tight that it leads nurses to do the wrong thing. For example, they have to put every single word specifically for their awakening trials decreased propofol by five mics every 30 minutes to it’s not sustainable, too much work, and it’s not beneficial to the patient, right? So I would never want to go down that rabbit hole, but when we allow for so much autonomy, but then there’s no education to guide that critical thinking and that autonomy, for example, nurses are not systematically trained to understand the risks of sedation, the patient perspective of sedation. So when we have this gap in education, then culture guides those choices, and the autonomy is abused, not with Mal intent, but nonetheless, in the end, patients are harmed. So we’ve talked about RAS when our RAS scores are not accurate, it’s false documentation. And I will tell you that it’s pretty easy to identify. You can also hold it up against physical therapy comes in and they try to mobilize the patient. They say unresponsive to voice, but you’ve documented negative one. The physician talked something similar. So there’s a lot of evidence and other people’s documentation that can leave the nurses vulnerable and exposed. We talked about the cam. If you’re not actually doing the cam and you chart some sort of answer that when it wasn’t actually done, that’s false documentation. If you’re not performing the cam, when you should be able to perform the cam, not false documentation. Maybe it is if you’re saying unable to assess, but you should be able to assess, but that’s a liability. That’s not screening for an organ dysfunction.

Maggie Ortiz 21:59
Well, if you’re so that leads you down another road, because if that is the score, then you need to be letting the doctor know, because then something’s really wrong, right? Then you’re not best for you to respond, and you are a nurse, and you don’t get to make those decisions. Do they stroke? Did they you know what? I mean, there could be something else going on, and your duty is to alert the doctor. So if that is true, then that would require a different pathway to start going down well.

Kali Dayton 22:23
And I saw in a team recently, there’s such poor documentation at the cam that patient that I could tell had profound delirium by other things than the documentation. But the cam was not documented for six days. Nothing was documented on for six days. So then, if I was a family member or that survivor myself, I looked back at that and I’m like, Well, I was having horrific hallucinations. I was in so much pain, I was so mortified and traumatized. But no one ever screened me for that, and when I showed symptoms of it, when I turned off sedation and I was panicked, they resumed sedation. So that’s also a failure to respond. So it’s a failure to screen, to assess, but then also a failure to respond. So what does that look like for liability to say they not, they increased my sedation in response to acute brain failure. But now I know that sedation was causing or just exacerbating and prolonging that. Now I have this brain injury, these cognitive impairments. My life is completely different. But maybe that didn’t happen. I just came in for pneumonia. But here’s what I see in the nursing documentation that shows that they didn’t care about my brain, and they probably caused this. So let’s talk about awakening trials, because we have the document on that as well. I think the criteria for awakening trials is so all over the place, because agitation can be no build criteria, but there’s no actual RAS score. So I guess, in a way, that kind of protects nurses to say they were agitated. One we need to have actual RAS scores for the sake of the patients, to say they need to be a RAS of three or four for this to be a failed trial. But then the protocols that are implemented from SCCM say to resume sedation at half. But I can see that that didn’t happen. They resumed sedation, sometimes turned it up, or gave another or said bolus in response to that. What does that look like on the legal side? When that happens, that’s practicing

Maggie Ortiz 24:11
medicine. That is the practice of medicine. As a nurse, there’s a gross deviation from the standard of care is reportable to that nurses board. And I don’t want to scare anyone, but you can’t do that. I know, because it can be scary you and I know you’ve seen a patient start to decompensate. We have that’s and it is scary, but that’s you cannot deviate. Then the doctor has to come. You got to get your support. You have to call a rapid or COVID, whatever it is that you need to do. But it’s not going up and beyond what the protocol is, and then also the nursing leadership has some responsibility, as is the physician, because we all work as the team, and I think that’s part of the problem as well. We’re not all educated together and trained together, and really the only place I ever saw this was when I worked at military for. Facilities Lackland and the trauma ICU and the Brooke Army Medical and the trauma ICU, because there wasn’t this division between the doctors and the nurses. It was just about the care. So going back to the nurses and the doctors, part of that is just working as a team, because even if the doctor sees that there’s a lack of education or understanding, even going to the nursing manager say what’s happening, but we see where organizations, more often than not, where the doctors are contractors. Now I’ve worked at organizations like Lastly, like Baylor, where it wasn’t, they were not, they were a contractor. They weren’t coming and going, even in the cath lab, but where you get some of these systems, so to say it’s just one thing that’s cut and dry when it comes to all this stuff. But everyone has their piece of this. And so when we’re seeing these things, but as far as the nurse, then that goes, No, we don’t do that. And when a patient does fail, a spontaneous breathing trial, whatever we’re doing that some of the trials, I’m sorry, the chart audits, do need to go back and look at some of these things as well. So then nursing education. Because why are we here? What are we doing? Education? What do I say? Knowledge is power. One of the things that we’re trying to do is to educate nurses. So when you’re going to write that score negative four, you’re like, Wait, hold on. So I just heard Maggie and Galleon say we shouldn’t be doing this. And maybe I don’t really understand what this means. And I don’t care if it’s you take two seconds, five minutes, whatever it is, and you start educating yourself what that means and that you stand your ground and that you need to be going in the room. I don’t allow other nurses to dictate my practice. We’re going into the room. I don’t care who you are. I don’t care if you’re a nurse practitioner. I don’t care if you’re a CRNA. Let’s go into the room, and let’s do a bedside assessment of this patient at hand off, because that’s your job, even to looking at the drips, the concentrations, doing a robust and then making sure that you’re documenting Well, this patient looks like a negative two and not a negative four. So help me out here. You’re documenting this, but I’m seeing this and understanding when you’re taking report and you’re handing off that you’re doing a neuro assessment. That’s why you’re that’s part of your responsibility. I’m not assuming. And if I think that yours is different, I’m writing down what I’m seeing, and I don’t care what you wrote. That’s not the I’m taking responsibility for what I’m doing. And if I see something that deviates, and the patient really is not waking up, then I do have to call the doctor because something’s happening, and we may need to go to CT, and I what you did, and what I do is your business and not mine. If

Kali Dayton 27:28
you’ve been listening to this podcast, you’re likely convinced that sedation and mobility practices in the ICU need to change. The ICU community is facing incredible difficulty with the trauma from the pandemic, staffing crisis and burnout, we cannot afford to continue practices that result in poor patient outcomes, more time in the ICU, higher healthcare costs and greater workload for the ICU team. Yet the prospect of changing decades of beliefs, practices and culture across all disciplines of the ICU is a daunting task. How does this transformation start? It can begin with a consultation with me to discuss your team’s current practices, barriers, and to formulate a plan to help your ICU become an awake and walking ICU. I help teams master the ABCDEF bundle through education, consulting, simulation, training and bedside support. Let’s work together to move your team into the future of evidence based ICU care. Click the link in the show notes of this episode to find out more. We also need to be watching each other’s backs, right? So when they’re asked a negative two, but then you get in there, as you’re doing a bedside report or assessing together. Hey, they look like a negative four. Are you sure? Did something change? Yes, were they really doing this beforehand? Because that’s a big change. And yet, I think we just kind of one. Don’t care about the rest so much. So we’re like, well, they charge negative two. It’s probably negative two or just probably had them too sedated. I should just decrease sedation. But maybe something happened that change, that impact. So it’s important to be accurate, not just in documentation, but our interpersonal communications between all the disciplines. When I train teams, the new rule is no one talks in subjectives, no sleepy, drowsy, agitated. It’s all in a wrath so we can really catch these nuanced changes, but also so that we’re all accurate, and there’s another layer of accountability, because right now, RAS is owned by the nurses. Nurses only use it among nurses, and that sets everyone up for a liability, but especially the nurses. So when an SAT is done and a patient comes out at a rasa plus one, but the nurse isn’t trained to know how to respond to that, and therefore they deem it a failed trial, because that’s what they’ve culturally been taught to do. They resume sedation, not by half, but by full dose. Now the RT comes in and can’t do an SBT, and they say patient is too drowsy, but they’re charted at a negative one. It looks bad, but also it is bad. And. There’s no leadership saying, hey, that wasn’t a proper trial. That’s the liability. I want to protect your license. I want to protect the patient. There’s no physician saying, Well, what happened during the awakening of trial? Why did they fail? Let me go in with you and support thank you. None of that’s happening. It’s just like, oh, okay, it failed. Well, let’s try again tomorrow. And the same thing keeps happening. So nurses are continually set up by the lack of education, the lack of reinforcement, the lack of support, lack of leadership and but when it comes down to chart reviews, they’re the ones documenting on this. Everyone has to be involved in this. But in the end, it’s their documentation. They’re the ones tied to the sedation. So they’re if they’re giving and let me know your thoughts on this when they chart a rasa negative two, but they’re sedated to a rasa negative four or negative five. That’s one false documentation. But isn’t it giving more medication than is prescribed? Yes,

Maggie Ortiz 30:50
and then now that’s, again, you’re practicing medicine. That’s a controlled substance. You’re going down a DEA Road, pharmacy road. I just don’t think that it’s a road that would be something because now, if it’s reported, and now let’s add on, just like another layer, not to scare anyone, but now you have one of us, and now it’s maybe one of our family members, and it takes just one case of a wrongful death. And let’s just say the centers, the insurance company decides to get involved has nothing to do. The organization doesn’t report it. Do you know what the insurance company does? They decide that they’re going to investigate it. That’s CMS, that’s the Centers for Medicaid and Medicare. That’s that you’re done. That’s like a huge that’s like a no joke. Now the organization is involved. Every provider is involved. That will get reported their respective agencies. If this is someone who’s older, this is considered elder abuse. Look what was tied to Redonda because of that person’s age. That falls under different type of law that. And now, using that drug, you just use the drug. And now, what’s all over the media? It’s probably a fentanyl or something. What’s just popularized right now, fentanyl? I’m not saying it’s right, but what is, what’s a jury going to hear? What? Oh, my God, I said. Oh, so there’s so many layers to this. The educators are overwhelmed, because now the educators taking on three other departments. Maybe they’re not even ICU trained. They were a step down nurse. So some of these nuances within drips, I saw in the cath lab, we had an ICU nurse who was just like, hey guys. So you know what, I’m never gonna cath lab. So sorry about that. So you add on educators who don’t have the time. They’re now over multiple disciplines. You have physicians who come and go you’re in an educational facility now. They you’re I don’t even know if I realize this, that the doctors are not educated in scores that we’re using. That’s not even logical, that’s not even a logical argument, it’s like crazy and only that. So how is a doctor? So then an expert doctor, you and I have done expert work, would have to come back and say, How is this doctor rewinding this nurse’s score when the doctor’s not even trained on this? You know what I mean? I don’t even know what that looks like, because you and I both know I can’t give my opinion on we can’t opine on physician conduct. But wow. But

Kali Dayton 33:01
I do want to talk about the physician studying this, because, yeah, we’re talking about nurses, but you brought enough facility liability. If they’re not trained on it yet they’re doing these practices, that’s the facility liability. If this is a I don’t know if CMS goes in and looks at all the care over a month, all these part reviews, and they see the same patterns. That’s a huge liability on the facility. But the physicians as well. So I

Maggie Ortiz 33:22
could rub the CNO, and so I’ve seen where a CNO, a dn at an organization. There were some things happening within organization that had only been there for three months. So nursing leader CMS came in the building. This leader got charged with $900,000 under. CMS got his license revoked, because anytime there’s that kind of conduct that throws the felony because of the yes, do you see what I mean? I’m not, we’re not trying to scare No,

Kali Dayton 33:49
my brain is just exploding, though. Maggie, this is this is normal, like

Maggie Ortiz 33:53
this. We don’t learn this in school. This is why you and I are trying to educate, like the nursing students, drafting of stuff for nursing schools. I’ve talked to Texas Tech. I’m going to women’s university here in a couple of weeks. We’re speaking on larger platforms, because it’s not to scare because it’s when it was a lawyer who reached out to me and asked me, like, what were the nurses options? I said they would revocation. You got to write that out for a year, five years. And this was a felony that’s also tied to the OAG. And I’m not going to bore everyone with all these details, but it becomes a big, huge monsters. Let’s go to the nurse leader. Just because you’re a nurse leader, it doesn’t absolve you of any of this accountability or liability at all. That’s insurance fraud, fraudulent documentation. You see what I mean, I’ll get out. I don’t. Does everyone have the Nurse Practice Act? I mean, right? I have mine. I read mine. I know mine, right? And it’s not this, all this stuff. It’s three sections of it, standards of practice, unprofessional conduct, and grounds for discipline. And this is readable. The CNO has their own 217, 11, 1211, One, I think is in my state, but I encourage every nurse leader to check theirs out, because their job description is different than yours, and I’s when we we check in as a bedside nurse, and why I choose not to be a leader. I think I’ve started this whole conversation with saying that, because, you know what, I understand a lot of things that no one does because of my experience, and I don’t want that accountability that’s huge. And I don’t, oh my gosh, understand this, nor chief medical officers, they don’t understand what that means when they have this title. I won’t even be charge nurse, not a chance.

Kali Dayton 35:34
Okay, so I not even thought about the liability on nursing leadership. Maggie, I trained at 12 ICUs. I have snuck my nose and around a lot of other ICU stranded like understand, going through their case studies, their data, preparing for training them in the future. But this is such a consistent trend everywhere. So if suddenly these CNOs, I mean, they have this happening in the masses, in their facilities, they don’t even know this has happened. A lot of C nos, most CNOs don’t have critical care experience, and so they’re in charge of making sure that there’s compliance with something that they’re not familiar with, that has been going on for decades. But if suddenly CMS wants to get in their business and see and hold them accountable for this,

Maggie Ortiz 36:15
they can. You cannot just say, I’m the leader. I’m taking whatever it is a month a year, and I’m in charge of this organization, but I’m just going to put my No, it’s not how it works. But they

Kali Dayton 36:25
don’t know. They have no idea how it works, but they just assume that ICU is doing the ICU thing and that it’s all under control. So

Maggie Ortiz 36:32
are you calling them to the tape? So, and I’m just going to play the devil’s advocate, because what will the lawyer go after? So see, you know, what were you doing? Let’s just break this stuff up. You know, it’s a problem. You know, it’s an issue. Some of these things are coming on your purview. Let there be one legal case, and then that nurse leader can now no longer say I didn’t know there was one complaint, maybe not even a legal case. There was one. The Joint Commission had a concern. CMS, anyone you know what I mean, any root cause analysis, being an incident report, anything. Here’s

Kali Dayton 37:04
the crazy thing. Maggie, like right now, I know Joint Commission looks at the AF bundle compliance, but very superficially correct, and I might look a little dashboard. Do you ever require documentation for SAT? SBT, that’s the sense that I get it. That’s as far as they’re looking into it. But if they knew to look deeper into how are

Maggie Ortiz 37:21
they? All they would need was one report from like you, because it does take a nurse like I speak about this when I teach nurses to cross over, when I teach about like expert stuff, what makes you an expert is you’re nuanced in this. So it takes one person like you writing something I

Kali Dayton 37:37
would No, I mean, it wouldn’t be me. I No, no. It

Maggie Ortiz 37:41
just like someone who understands, because there, there are physicians and stuff who back your knowledge other agencies. So when I say you again, not just like you’re holding up the world, right? But all it takes is one person, one educate. It’s my family member, and now I just write up some words, and now they’re looking to some of the research that you created, or that’s out there in the world, I start going down this path, and then we’re done. Now I know that there were deviations, and that’s just backed by science, because what does the expert do? The expert finds evidence for the last five years, it’s peer reviewed every state. My state, is under Chapter 74, of civil expert testimony, right where each expert would have to stay in their lane, the doctor, the nurse, PT, OT CNL, RN, bedside, nurse, like I could not give my opinion on a nurse leader, because I’ve never held that right, but there will be someone who will be able to give their opinion on that same or similar. Yeah.

Kali Dayton 38:36
So when I finally get the opportunity to present the financial information to executive leadership teams. I always bring in illegal liabilities, because again, one one complaint, one lawsuit over this could, could be extremely expensive to them, but the public doesn’t know enough to really follow through with this. Malpractice attorneys don’t understand this information, so it hasn’t happened yet that I’m aware of smarter,

Maggie Ortiz 38:57
because there’s the ones who are asking to see their medical records. Right now, they can see their medical records in real time. No, they’re getting smart, and now, with this advent of them having this easy access, they can go on to the website. The second thing loved one is hospitalized. They’re hospitalized. If anyone’s a patient advocate. I was a patient advocate. I’m teaching them to get on their portal. I want access to my medical record. So it’s going, Wow, the evolution of this is huge. Well, the CFOs

Kali Dayton 39:27
eyes always get big, right? Because they’re, look, I’m talking about the financial loss that they’re currently experiencing, the return on investment to be had. And they’re like, oh my gosh, yeah, we got to do this. But the CMO oftentimes gets really fired up. And I thought, Oh, they get they understand the financial picture, because that’s you decrease cost by 30% you solve all these problems they’re already concerned about. So I assume that was the light in their eyes. Now I’m wondering if they’re like, oh my gosh, oh no, that’s a huge liability. Oh, huge

Maggie Ortiz 39:56
anyone to see an ocmo. That’s exactly why I will. Be in those positions. Because if you would have come to me with any of this, if you would have sat in front of me, I would have given my resignation the next day, I would have been done, because I would have been grossly worried that and the CFO, and again, I don’t remember the exact but most like insurance policies, will settle for what, like under 2 million, like for a hospital or whatever. Now, if he moves into there’s a difference and stuff that I speak about, because I believe that knowledge is power. So when I teach things like a charting course, it’s not just about the documentation. I read negligence, gross negligence and malpractice, because those are three different words, those are three different definitions. And so what does that seem a CMO worry about gross negligence, because that’s many disciplines. That’s nursing, medicine, Pete, you know what I mean. Okay, so with

Kali Dayton 40:47
that, I think that’s where mobility can fall into under as well. So we talked about RAS ham SATs. I think SBTs are done poorly as well. I think there’s liability in RTS and the way we do that. But early mobility, when this is brought up, nurses especially panic, because they feel like mobilizing their patients will be a liability. They’re afraid of things happening to the patient’s earned mobility, which there’s less than 1% adverse event rate with early mobility in the ICU, but they don’t know that, right? Anything that’s new, especially something like this, where it’s patients awake, they’re out of bed, it’s so different. They’re terrified of liability, but looking at it from this perspective, when they chart bed arrest as their mobility screening, and there’s no contraindication to mobility, there’s no exclusion criteria that is met by the patient, by the evidence, or even by hospital policy, yet they say that they are on bed rest and they do not mobilize them. What does that look like on the nurse, as well as the PTS, the OTs, anyone that has a mobility scope of practice and the patient does not get mobilized. What kind of liability does that hold?

Maggie Ortiz 41:53
Huge, huge. And I think when we first got on, I told you that my aunt passed and she was resuscitated in ICU, and she developed an unstageable pressure ulcer. She got osteo she got all the things that you already know of, right? And she died eight weeks later. And one of the things the second she landed in that bed. What was I talking about? Mobility. Don’t tell me. You can’t get her up. Why? Tell me what? How is she that? Grossly unstable? And when I’ve been deposed in cases? No, no, I grew up in the ICU. I don’t care. We use different things. Yes, I’m moving you over, but don’t tell me it’s un stop. The risk of them staying in that bed far exceeds them laying in it. Get out. Are you joking? Me lighting up that sedation. They need to be all the stuff we teach about when a coughing, deep, breathing, DVTs, pneumonia, the litany of this, there is no evidence to support that patient lying in bed. And you know who created that? We did? You know what science has evolved, and that’s nursing science. We it’s they on the stand, they would keep slapping you in the face with all the nursing science. Oh, I’m so sorry. Your people keep saying different. We have the score that was created by the nurse, right? We have, you know, I mean, there’s we created the tools that we’re using that will be used against you. I can’t there’s no so

Kali Dayton 43:06
let’s look at systematically. The hospital has not they don’t have protocols that support early mobility. If they don’t educated their staff on early mobility, that liability includes the hospital, if the hospital has done those things, but now the bedside clinicians go against that policy because it’s culture, right? They think the big thing is, people always say, well, it’s not in our policy. And I say, Well, I just read your policies, and this is within policy. They’re not practicing your policy, but they don’t know that. So they think that they’re liable for mobilizing patients, but are they then liable for not mobilizing their patients.

Maggie Ortiz 43:42
Yes, and culture and policy are very different things, and I do the same thing. I’m like because that’s lawyers have come to me because they like my reports, because, you know what I asked for. I not only bring in the Nurse Practice Act because I have an intimate knowledge of it, but I’m also asking for all the policies that I already know exist, and those are going to be used all the evidence based science. So no, most nurses don’t know that policy will be used against them. But then I’m going to double down on that, because 1514, in my state that says I have a duty to the patient that supersedes a hospital policy and or physician order. So what does the evidence science state say laying in that bed is going to cause a problem? So you don’t want my duty to that patient is to advocate, to get them out of bed. And what is PTS duty? They have a doctorate degree. Are you joking me? PT, OT the PT, stood in front of me and said, literally, asked me, So what I hear you saying is that you want me to advocate for her care. I said, Yes. I said, That’s all I’m asking for you to do, is to get her out of bed. Everything that you learn in your doctor degrees not to lay in that bed, everything that goes along with that. And most nurses don’t know when complications arise from us not moving. Those are not reimbursable by the insurance company. We’re going to go back to CMS. So you know who CMS is? Going to do come knocking on your door, and if you don’t think, because they’re not going to reimburse for that, and then they’re going to see nursing negligence, and then we’re going to go back to that. Then they have a duty to what to report to the Board of Nursing, because that the investigator is not a nurse. The nurse holds a license, so that in that the Centers for Medicaid and Medicare, maybe it starts with a Blue Cross, Blue Shield, who has to let CMS know that there are gross deviations in the standard of care. So not only within Blue Cross, Blue Shield, they report to CMS, who reports to the abuse, because this person was elderly, who then reports to the Board of Nursing, who then reports to the Board of Medicine. Now there’s a nurse practitioner as well, who’s an L, i, p, well, that nurse is going to the Board of Nursing as well. So

Kali Dayton 45:45
do they say, well, it wasn’t normal in our hospital to do this, or many hospitals aren’t doing this. There’s vast research to support it. Their policies are set up to allow mobility for these patients, normal or culture in this play any kind of defense.

Maggie Ortiz 45:59
So the only thing that would play any defense, and I was involved in a civil case early on. So two years into my I’m a baby nurse, maybe two years the Oh, and the patient developed a pressure ulcer. So it was a pressure ulcer case. The patient was grossly unstable. And so what I documented, this is on paper, I know that’s going to shock people, but I you aged me early on. I documented the patient was grossly unstable, but I kept shifting their hips, moving things, because what was a deviation of standard of care, not getting the patient out of the bed, not getting them into a chair. So what was happening? They were on multiple pressors. They had a drain, and just because they haven’t been tricking does a ventric automatically make them unstable to get out of bed? No, they’re going to be a doctor’s order that says that, is that a level of accountability or carefulness for lack of words that we need to utilize? Yes, but that doesn’t mean unless the doctor says that they’re that grossly unstable, and there are patients that were that grossly unstable, that we could not move them their pressures, but you better be documenting that. And so that’s what alleviated me. Because, you know what, I was documenting, my a line pressures that were grossly unstable, their heart rates, all that stuff that you talk about, my documentation reflected that they were that grossly unstable. Maxed out on three pressers, then I was going to try to get them up, or whatever I was going to do. But then I also called the doctor, and we both as a team decided it was not safe to get that patient out of the bed, because what the deviation from the standard of care, whether there was a doctor’s order or not, because I create nursing care plans, I’m a nurse. Nursing diagnoses are my where I live in, the nursing diagnoses would have supported getting that early mobile mobilization out of bed, so I would have had to call the doctor, because my nursing care plan would have been that I could not have got that patient out of bed for all the reasons, head to toe, right, and

Kali Dayton 47:57
specific exclusion crisis that was met Correct. I’ve always thought, wouldn’t it be so great if we had mobility show up on our Mars, because we have some care show up on our Mars now that we have to be accountable for we have to scan in things like that is why do you think that happened? Because something happened, there was a liability, there was a complaint, and the hospitals freaked out and put in something in their process to make sure it happened. But right now, mobility is not treated that is not treated that way. But if it was, then we would one. We would do it, and if we couldn’t do it, we would predict, like a Metoprolol order, and say, I’m holding this medication because of x, y and z, this certain criteria made it inappropriate for me to initiate this treatment at this time, but we don’t treat mobility that way. So there’s obviously nursing liability. But like you said, PTs and ODS have their doctorates, and yet, nurses get to dictate the mobility in a lot of ways, right? They manage the sedation. So if a physical therapist comes and the patient is too sedated to mobilize them,

Maggie Ortiz 49:00
who is that on? PT, I’m going to ship that. I’m going to bounce this back as well. They are Doctor prepared. Do not tell me. PT, could not then call the doctor and say, Dude, I’m giving my assessment. I am Doctor prepared. You’ve seen all their documentation, which is like, pages and pages. It’s, I can’t, I don’t, can’t digest it, right? They are part of the team to say I am seeing this, we need to talk about the assessment. This is not my wheelhouse. I am not medically trained, but seeing what I think is over sedation, possibly of the patient. But I can’t make that decision, because that’s not my wheelhouse. I need your help, because we are Team. No, there’s liability. The PT holds a professional license. They fall under the medical board. They fall under the doctor, just like a rad tech does, just like an MA does. So then the doctor can be reported for the PTS conduct, but they are doctoral prepared. There’s no excuse now, and

Kali Dayton 49:52
if maybe the patient’s not sedated, but they want to mobilize the patient, and then our says, no, they’re

Maggie Ortiz 49:56
too sick. Okay, define that. There’s a to get to make that decision, right?

Maggie Ortiz 50:01
No, no, that not in front of the patient. But then we respectfully go to the side, or we’re doing something, but the physical therapist then has a chain of command and needs to go up to their chain of command and just say, I don’t really understand what’s happening. But obviously we need to get with the nurse manager, because there needs to be education that’s happening in the units, because I don’t know what’s happening, right, in a respectful professional manner. You started with this. We know we start even saying we this is never to throw hate nor disrespect on any discipline, but we have to come together as a team. And some of the problems is that we keep littering in here. We’re not talking about it. Keep alluding to it. Is that average experience of the hospital nurse is 2.6 years. So some of is their lack of language understanding, because I already know some of the stuff that you’re talking about. I don’t know to be true. I grew up 15 years in the unit where it was the standard of care, where we mobilized this patient, this new stuff, this new is the lack of experience that is not the standard of care. We are the standard of care. We work together as a team, and that’s everyone and doubling back down on PT OT, they, too, have a duty to work with nursing, and it’s maybe it’s doing interdisciplinary meetings that should be happening daily. I grew up in a unit where we were doing that stuff, and it’s there’s nothing wrong with looking to nursing and saying so, not in front of the patients, possibly the patient’s family, because that can be concerning to them. It’s appropriate to step away from that and just say, Hey, this is what I’m seeing. What are you seeing? Let’s look at the drips. It could be that there’s a wrong concentration on the drug. We the patient now has hepatitis, and we need to get them off the propofol. We need to switch them on to something else. We need to go to prostatex, or the sedation just needs to come up all together. Yes, yes, don’t start

Kali Dayton 51:44
it unless there’s an indication. Which is we’re talking about liabilities. I think physicians can be held liable for ordering sedation without an indication, ordering versus benzodiazepines when there’s no absolute indication. I think CMOS need to be looking so closely at that, because we know that benzodiazepines increased mortality, and when we’re giving it out, because it’s what we’re used to, that is such

Maggie Ortiz 52:08
a lot. Maybe she knows about this. I was going to sedate someone in the cath lab, and this was a decade ago. Sister, yeah, population. She was older, and she said, so you’re going to give me verse? Said, even though the death, I was like, good for you. I said, No, ma’am. I said, because I don’t take that offensively ever. I always encourage the patient to be and I said, No, ma’am. I said, Good on you for doing your education. I said that absolutely does not have to be part of your sedation plan. You don’t even have to have sedation if that’s not what you want, you don’t have to know. I’m going to tell you. Could there be some things that are painful, possibly. But are we going to do anything the pain? This is Cath Lab. Are we going to do anything that’s painful to to you, even if we would have to deploy a stent, because that would be the worst case scenario? No, no, the numbing medication. Yes, but when we’re doing stuff in your body that’s not going to hurt, yes, if we when we deploy the stent, I’ve never had it done, but I am told that when it’s deployed, we have to inflate the balloon. It can cause chest pain,

Kali Dayton 53:06
which we might not give. Some people, no Why not give things? And that’s what

Maggie Ortiz 53:09
I said. We could give you a little bit of fentanyl. If that’s what you chose. You could even make that decision on the table. We could consent you, just for that. You couldn’t tell her at that time, I would still then have already consented you, knowing would that would be the only drug that we would use, and I could even start with 6.25 to see if that would cover the pain. If not, we could go up, but that’s the sedation plan. Is always in the patient’s hand,

Kali Dayton 53:33
but not on the ICU. And we had things like the beers criteria that almost forbid benzodiazepines being given to geriatrics, but suddenly that doesn’t matter when it comes to mechanical ventilation or critical illness. So I think this has been such a great conversation on the liability within the whole system. I’m excited for nurses, especially to hear this, because we’re both passionate about protecting nurses licenses and their livelihoods and allowing them to provide safe and optimal care for their patients. And it’s not happening when it comes to sedation, mobility and delirium management in the ICU, and that’s not necessarily the nurse’s fault. We didn’t even talk about the memes, but I think there’s liability in joking about things they’re joking about false documentation and harming patients that is searchable. What you put online stays online. It’s out there. So Watch your backs, watch your patients, watch your documentation, work together collaboratively to create a safe environment in which the patients are safe, but each discipline, each clinician, has their own license, safe because we’re practicing the best evidence based care. Anything to add on Maggie, I know and we could

Maggie Ortiz 54:43
talk forever. I feel like ever, never, ever, never, when you got to wrap it up, no, and to your point about the means. So let’s just go back to, I think we talked about anyone can file a complaint if a patient’s family sees this front facing or reported to a Board of Nursing. I’m just here to tell you that unprofessional conduct can be what. It is, and that is construed under on professional conduct. So to your point, and that’s everyone, there’s a lot of liability. All the stuff that we do is providing the nurses with the confidence. Part of that confidence is through the education and embracing it and feeling powerful and able to make changes in your own environment. And we just gave you all the gifts to do that. I’m about the tools in the toolbox. This is nurse love, tough love. My door is always open. I know your door is always open, and science is evolving. So thank you

Kali Dayton 55:30
so much for all you do to protect nurses, and I appreciate you bringing that expertise into the special, this special niche, and I look forward to learning more from you. Thank you. Thank you. Thank you, Sister. This schedule a consultation for your ICU as well as find supportive resources such as the free ebook case studies, Episode citations and transcripts, please check out the website, www.DaytonICUconsulting.com you

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