I am not a lawyer. The following is what I have gleaned from 30+ years of living with one.
You can be sued for the following:
1. Battery-when a client does not consent to be touched and there is emotional or physical damage from "touching"(let's not go there again!)
2. Breach of warranty-promise to provide a service/guarantee and it is not provided.
3. Infliction of emotional distress or bodily harm by an act of omission or comission-there has to be a connection between the two above
We've been talking a lot about something the LC does that can cause a law suit, but there can be damage from something we do not do. For example, a nurse does not properly assess shoulder pain as being related to uterine pain(referred pain) and therefore does not report this pain to the physician. The patient's uterus ruptures resulting in a baby with severe brain damage. In this case the nurse created an act of omission, by not properly assessing this mother and alerting the physician so that this baby could be delivered sooner.
In relation to the current discussion, why do we collect data if we are not going to make some kind of "diagnosis"? Assessment doesn't just mean collecting information. It means making a judgment about that data. Webster: "to estimate or determine the significance, importance or value of; to evaluate.
Another issue is documentation. A local obstetrician here was sued and the patient won big time not because he did anything wrong, but because what he did was not documented.
Anyone can be sued anytime if there is a hungry enough lawyer, but whether it makes it passed the first hearing is another issue. I don't know the answer to the questions that have been proposed and discussed. As a private consultant, I think we are "out there". But here is what I believe and practice:
-Keep abreast of all the current research and what LC's in your area think is current standards of practice. Would I be able to get an "expert" in my field to testify that they would have done the same thing in my situation?
-Establish a good rapport with my clients. Listen. Listen. Listen. and more Listening.
-Have them part of the problem solving and decision making process
-Communication with their physician. Keep their phyician informed about our plan and if it conflicts with his/her plan, I call and ask him/her to explain their rationale, what info they have that I don't have and try to come up with a plan with which we both agree.
-Document all the data I get from the family, the plan we agree on, and all follow-up
-Close follow-up to see if the plan is working
-Regarding the use of herbals or other therapies I state in my plan: Discussed the use of fenugreek, reglan, pumping after feedings, etc. to increase milk supply--I'm sure some clever lawyer could say that I prescribed it, but they can say night is day and day is night!
In summary, I think that clients are paying me to make judgments based on the data they give me and to offer suggestions for solutions to their situation based on the clinical and research data available. A lot of times I say, "There is research to validate this, or there is no research to validate this, but here is what a lot of lactation consultants have reported based on their clinical experience" to support my recommendations.
This is not an easy issue!
Carol L'Esperance, RN, MSN, IBCLC
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