Caught in the Middle: Doctor's Order vs Hospital Policy -- When They Conflict, Which Must Nurses Follow?

Carolyn Buppert, MSN, JD

Disclosures

July 01, 2015

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Question

When a physician's order is in apparent conflict with hospital policy, where does the nurse stand, legally, in choosing one over the other?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

Dual Responsibilities: Physician Order vs Hospital Policy

A nurse who has encountered situations in which the hospital's policy or protocol is in conflict with a physician's order asks, "Which am I most obligated to follow—hospital policy or physician orders? I'm responsible to follow both. Am I more protected by the law in following the physician's order or in following the hospital policy (assuming both are safe for the patient)?"

If a physician gives an order that contradicts a nurse's employer's (hospital) policy, there is likely something wrong with the process. A nurse shouldn't be caught between two genuine authority figures. If a nurse is put in this difficult position, one thing that he or she can do is turn the interaction with the physician over to a supervisor. Perhaps the hospital policy needs to be rethought, narrowed, or renegotiated. Perhaps the physician doesn't realize that there is a position that is different from his or her own, with perhaps more justification than the physician's rationale for the order. Someone in a higher administrative position than the staff nurse should troubleshoot.

A nurse who outright refuses to carry out a physician's order is going to immediately be persona non grata with the physician and possibly the hospital and licensing board. Responding, "That would violate hospital policy," in a neutral tone of voice, might open up a discussion with the physician. If the physician balks, then saying, "I'll need to check that out with the charge nurse" might be a way to let the physician know that it's not just the nurse being difficult, enabling the nurse to pass the decision up the corporate chain of command to determine whether a situation calls for violation of a policy.

Clinical Scenarios

A resolution often depends on the particulars of the scenario. Usually there is a difference of opinion about which direction—the physician's way or the hospital's way—would be safest for the patient. Hospital policies and physician orders usually are based on concern for patient safety. However, sometimes physicians simply want to get their work done and move on, and the easiest way to do that is to turn work over to a nurse. For example, a physician might ask a nurse to enter a verbal order into the computer, when the physician can very well enter the order him- or herself. A hospital policy may call for physicians to enter their own orders, with minimal exceptions. The hospital's policy is based on the premise that patient safety is better protected if an ordering clinician enters his or her own orders. The hospital accrediting body supports that policy.

The nurse who goes ahead and enters the order risks making a mistake stemming from inadequate communication, being accused of exceeding scope of practice, and violating hospital policy. It is not worth these negative consequences for a nurse to enter the order.

Let's consider another scenario, in which a physician tells a nurse to remove a chest tube or an umbilical catheter in a neonate. Hospital policy calls for a physician or advanced practice provider to perform those functions. Again, if the nurse carries out the physician's order, not only might patient safety be compromised, but the nurse's career is put in jeopardy for exceeding scope of practice. The nurse should decline to follow the physician's order but also should involve a supervisor.

The Courts Have Spoken

Consider a third fictional scenario, in which a physician wants to intubate a patient in the patient's room, whereas the hospital's policies and procedures call for intubation in an intensive care unit (ICU), except in an emergency situation when there is no time for transport. The physician tells the nurse to get the supplies ready and prepare the patient for intubation. The physician thinks time is of the essence and the time consideration outweighs the benefits of having a monitored bed. The nurse thinks the patient should be manually ventilated with a resuscitation bag until he can be transported to the ICU, just a few minutes away. In this case, there may not be time to bring in a supervisor.

In such a scenario, a nurse may find that a refusal to follow a physician order is career-ending. I find no cases where a nurse was disciplined when the nurse was following hospital policy. However, the following case from California illustrates what can happen to a nurse who refuses to follow a physician's order that the nurse believes is unsafe:

Nurse F, who had 20 years of nursing experience, was the resource nurse one morning at a hospital in California. Around the time of change of shift, a man was found to be in some respiratory distress, although he was still conscious. A physician (an intern who had started practicing 2 weeks previously) ordered that the patient be intubated in his room and asked that the supplies be gathered. Nurse F said the physician could not intubate the patient on the floor, and that the patient needed to be transported to the ICU, about 5 minutes away. Nurse F unplugged the patient's bed and maneuvered out the door, pushing the bed to the ICU. The patient arrived still conscious and still in need of intubation, which was completed. About 30 minutes later, a code blue was called, and the man expired shortly thereafter. The intern reported Nurse F to the administration for countermanding a physician's order. The hospital fired Nurse F and reported her to the California Board of Nursing. The Board of Nursing charged Nurse F with unprofessional conduct and incompetence and suspended Nurse F's license, but stayed the suspension and put her on probation for 3 years. Nurse F sued to take the case to court to reverse that decision. She argued that intubation in the ICU was safer and that since the patient was not unconscious, it was better to intubate where there were more resources than in the hospital room. A trial court affirmed the Board's decision. Nurse F appealed. The California Court of Appeals affirmed the lower court's decision, saying that a nurse is required to follow a physician's order, and that a nurse can refuse to follow a physician's order only if the order is erroneous or dangerous, but that in this case, the physician's order was reasonable.[1]

Lessons Learned

This case tells us that it is permissible for a registered nurse to disobey a physician's order that is inaccurate or dangerous to the patient, but it's not permissible otherwise. It is key to understand that it doesn't matter whether the nurse thinks the physician's order is dangerous; what matters is whether a majority of other experts would believe the physician's order was reasonable or dangerous. A nurse isn't going to have time to conduct research when faced with a patient who needs intubation. Generally, going along with a physician's order is going to be safest, unless there is a hospital policy to the contrary, or unless other physicians and nurses strongly and reliably support his or her position.

Some boards of nursing may have opinions on this dilemma. For example, the Texas Board of Nursing says:

[The Texas Administrative Code] 22 TAC §217.11(1)(B) requires the nurse to "promote a safe environment for clients and others." This standard establishes the nurse's duty to the patient/client, which supersedes any physician order or any facility policy. This "duty" to the patient requires the nurse to use informed professional judgment when choosing to assist or engage in a given procedure.[2]

It is not known whether the Texas Board of Nursing would have disciplined Nurse F in the case described above. Given that the court found the physician's position reasonable, I suspect Nurse F would have been disciplined in Texas as well.

The safest ways for a nurse to protect him- or herself while advocating for patient safety are:

  • When at all possible, include one or more supervisors in discussions with physicians when questioning a physician's order.

  • Understand that any refusal to follow a physician order must be based on evidence and standard of care, not just difference of opinion.

  • When there are valid arguments for two different ways of treating patients, and the attending physician orders one way and the nurse believes in another way, the physician wins. However, nurses certainly may voice their opinions and use their skills of persuasion to try to change the physician's mind.

  • If a physician's order requires a nurse to exceed his or her scope of practice, the nurse has a legitimate basis for refusing to carry out the order. However, diplomacy is advised.

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