Vol. 9 •Issue 18
• Page 33
The Learning Scope
Student Supervision
Legal issues can include discrimination claims and grade appeals
By Mary Ellen Smith Glasgow, PhD, RN, CS, & H. Michael Dreher, DNSc, RN
This offering expires in 2 years: August 13, 2009
The goal of this CE offering is to provide nursing faculty with current information on legal issues in nursing student supervision. After reading this article, you will be able to:
1. Analyze various issues pertaining to nursing clinical education using a legal framework.
2. Discuss the legal issues pertaining to the role of the nursing faculty member in the clinical area.
3. Discuss how student disability issues impact nursing clinical education.
You can earn 1 contact hour of continuing education credit in three ways: 1) For immediate results and certificate, go to www.advanceweb.com/nurses. Grade and certificate are available immediately after taking the online test. 2) Send this answer sheet (or a photocopy) along with the $8 fee (check or credit card) to ADVANCE for Nurses, Learning Scope, 2900 Horizon Dr., King of Prussia, PA 19406. 3) Fax the answer sheet to 610-278-1426. If faxing or mailing, allow 30 days to receive certificate or notice of failure. A certificate of credit will be awarded to participants who achieve a passing grade of 70 percent or better.
Merion Publications Inc. is an approved provider of continuing nursing education by the PA State Nurses Association (No. 008-0-07), an accredited approver by the American Nurses Credentialing Center's Commission on Accreditation. Merion Publications Inc. is also approved as a provider by the California Board of Registered Nursing (No. 13230) and by the Florida Board of Nursing (No. 3298).
Learning how to recognize and anticipate legal risks associated with clinical supervision is a crucial skill for nursing academic administrators and an important one for faculty. Due in part to the complex legal aspects of the roles of today's nursing faculty members and academic administrators, we developed and co-taught a doctoral nursing course this past spring in Drexel University's DrNP-in-London program entitled "Legal Issues Confronting Nursing Faculty & Administrators."
In this case-based course, students received an introduction to the legal system by an attorney and learned how to access and read legal cases using LexisNexis, a legal database used extensively in law schools. In London, students met with a similar undergraduate nursing director at Kingston University of London and, perhaps surprisingly, found similar student discipline issues and disposition of cases.
In today's increasingly litigious society, it is important for faculty and administrators to be proactive in utilizing the expertise of legal counsel at their institutions. Many nursing academic administrators do not contact counsel until a problem arises with a student, and it often is too late.
The legal issues associated with clinical education are numerous and have changed over time. This article focuses on four common legal issues that may confront nursing academics: vicarious liability, discrimination charges, grade appeal litigation and discrimination claims pertaining to students with disabilities.
Nursing academic administrators need to sensitize faculty to the legal issues that may arise as a result of clinical education.1 Developing a skill set to anticipate legal risks requires a strategy. University-based legal counsel may educate new faculty during orientation and provide updates throughout the academic year.
Vicarious Liability
In some cases, a faculty member or institution can be held liable for the conduct of a student. This is called vicarious liability. There are several types of vicarious liability; however, respondeat superior and "negligent supervision" are most applicable to the nursing student in the clinical environment. The respondeat superior doctrine is translated as "let the master answer for the sins of the servant" and makes the employer responsible for the tortuous acts of its employees.2
In contrast, negligent supervision is claimed when faculty members fail to reasonably supervise students under their direction. For example, if the nursing student informs the faculty member she has never performed a certain procedure, it would be unreasonable for the faculty member to allow the student to perform the procedure unsupervised. If the patient sustained an injury as a result of the unsupervised procedure, the faculty member would be held accountable to the patient for negligent supervision.
Faculty need to properly supervise students, particularly when they are engaging in new or high-risk procedures. Further, careful consideration needs to be given to the student's ability and the acuity of the patient assigned. Student data related to adverse events, near-misses and documented errors on clinical units need to be collected, aggregated, analyzed and acted upon by faculty in consultation with clinical affiliations.3
Discrimination
Title VI of the Civil Rights Act of 1964 prohibits discrimination against any person on the grounds of race, color or national origin in any program receiving federal funds. In language similar to that of Title VI, Title IX of the Education Amendments of 1972 outlaws discrimination on the basis of sex in any education program receiving federal funds. The Age Discrimination in Employment Act of 1967 bans discrimination in employment on the basis of age — against anyone 40 or older with no upper limit.4
In terms of clinical education, discrimination claims are sometimes made against an individual clinical faculty member who has 8-10 students in a clinical group, and concern student/faculty ratios. Typically, such claims are made when the student is in jeopardy of being placed on clinical probation or receiving a clinical failure.
Because clinical evaluation is partly or largely subjective in nature, faculty must consult legal counsel when documenting student clinical performance in these instances. Documentation needs to be timely and objective, clearly stating how the student did not meet the clinical objectives. This is especially critical for new clinical teaching faculty members or adjuncts who may not be as familiar with proper protocols for documenting poor clinical performance.
In addition, due process must be provided to the student, at both the department/program level and the university. Every college or university has an office of equality that will initially investigate a complaint's merit. The faculty member also should consult with the university faculty ombudsman for support throughout the process. If the student's claims are false, the faculty member will need the institutional support an ombudsman provides.
Grade Appeal Litigation
Overwhelmingly, the courts have deferred to universities in grade disputes, placing the burden of proof on the student. The courts recognize faculty members possess expertise in their disciplines, and the courts are reluctant to question the scholarly integrity of the faculty member.
We can find no case law where a tenured faculty member has had his grade overturned by a court of law, but there have been several cases where nontenure track faculty members have had their grades overturned. However, in Parate v. Isibor (1989), a college dean ordered a nontenured faculty member to change a student's grade. In this case, the court ruled in favor of the plaintiff, stating the individual professor's assignment of a letter grade was protected speech and entitled to some measure of protection by the First Amendment.
Similarly, in Regents of University of Michigan v. Ewing (1985), a medical student who failed the NBME Part I Exam required to progress to the final 2 years of a combined 6-year undergraduate/graduate medical degree program filed suit claiming violation of his due process rights when he was not permitted another opportunity to take the exam and was dismissed. While the federal district court found no violation of his due process rights, the circuit court of appeals disagreed and reversed the decision. However, a unanimous Supreme Court ruling reversed the appeals court's ruling, holding there was indeed no violation of due process, again giving institutions great leverage in establishing common educational standards and regulations.
What is most important is the student receives due process as outlined in the policy of the respective nursing program. The grievance procedure should be clearly outlined in the program handbook, particularly as it pertains to clinical probation and failure.
Another significant point is the concept that the syllabus is a contract. Typically, the syllabus and handbook are considered contracts by which the nursing program and student must abide.5 "The court is concerned that decisions are not capricious, arbitrary, irrational, executed in bad faith or are in violation of constitutional or sanctuary rights."6 For these cases, faculty documentation is extremely important. Documentation needs to be objective and timely, and must discuss specific behaviors the student exhibited or did not exhibit.
Disability Law & Clinical Education
Over the past decade, the courts have been called to apply the provisions of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 in several cases, with implications for nursing education programs. Courts have clarified the relative obligations of both students and faculty in determining accommodations.7
An important strategy is to have a list of technical standards for your program. Certain functional abilities are essential for the delivery of safe, effective nursing care during clinical education activities. Therefore, the faculty needs to determine certain technical standards requisite for admission, progression and graduation. That is, what standards will ensure the quality and competencies necessary to succeed in the nursing program while also withstanding potential challenges under disability laws? These technical standards should be included in all application materials, posted on the program's Web site and published in the program handbook.
We maintain technical standards need to be developed not just for baccalaureate nursing programs, but for master's nursing programs (advanced practice nursing programs in particular) and practice nursing doctorate programs such as DNP and DrNP as well. Such information serves to provide advance notice on the minimum competencies and expectations for all nursing students.7
It must be very clear applicants and students who seek accommodations prior to or immediately after enrolling in the program also must request an assessment of the types of reasonable accommodations needed for the clinical education component of the program.
Meeting Technical Standards
Following is an example of a list of technical standards: An individual must be able to independently, with or without reasonable accommodation, meet technical standards of general abilities, and those specifically of 1) observation; 2) communication; 3) motor; 4) intellectual, conceptual and quantitative abilities; 5) essential behavioral and social attributes; and 6) ability to manage stressful situations.
Individuals unable to meet these technical standards, with or without reasonable accommodation, will not be able to complete the program and are counseled to pursue alternate careers.
General Abilities
The student is expected to possess functional use of the senses of vision, touch, hearing and smell so data received by the senses may be integrated, analyzed and synthesized in a consistent and accurate manner. A student also must be able to perceive pain, pressure, temperature, position, vibration and movement, abilities important to the student's capability of gathering significant information needed to effectively evaluate patients.
A student must be able to respond promptly to urgent situations that may occur during clinical training activities and must not hinder the ability of other members of the healthcare team to provide prompt treatment and care to patients.
Observational Ability
The student must have sufficient capacity to make accurate visual observations and interpret them in the context of laboratory studies, medication administration and patient care activities. In addition, the student must be able to document these observations and maintain accurate records.
Communication Ability
The student must communicate effectively, both verbally and nonverbally, to elicit information and translate that information to others. Each student must have the ability to read, write, comprehend and speak the English language to facilitate communication with patients, their family members and other professionals in healthcare settings.
In addition, the student must be able to maintain accurate patient records; present information in a professional, logical manner; and provide patient counseling and instruction to effectively care for patients and their families. The student must communicate effectively verbally and in writing with instructors and other students in the classroom setting.
Motor Ability
The student must be able to perform gross and fine motor movements with sufficient coordination needed to perform complete physical examinations, utilizing the techniques of inspection, palpation, percussion, auscultation and other diagnostic maneuvers. A student must develop the psychomotor skills reasonably needed to perform or assist with procedures, treatments, medication administration, and management and operation of diagnostic and therapeutic medical equipment, and such maneuvers to assist with patient care activities like lifting, wheelchair guidance and mobility.
The student must have sufficient levels of neuromuscular control and eye-to-hand coordination. A student must possess the physical and mental stamina to meet the demands associated with extended periods of sitting, standing, moving and physical exertion required for satisfactory and safe performance in clinical and classroom settings, including performing CPR if necessary. The student must possess manual dexterity, such as the ability to draw up solutions in a syringe.
Intellectual & Quantitative Abilities
The student must be able to develop and refine problem-solving skills crucial to practice as a nurse. Problem-solving involves the abilities to measure, calculate, reason, analyze and synthesize objective and subjective data, and to make decisions, often in a time-urgent environment, that reflect consistent and thoughtful deliberation and sound clinical judgment. Each student must demonstrate mastery of these skills and possess the ability to incorporate new information from peers, teachers, and the nursing and medical literature to formulate sound judgment in patient assessment, intervention, evaluation, teaching and setting of short- and long-term goals.
Behavioral & Social Attributes
Compassion, integrity, motivation, effective interpersonal skills and concern for others are personal attributes required of individuals in nursing programs. Personal comfort with and acceptance of the role of a nurse functioning under supervision of a clinical instructor or preceptor are essential.
Students must possess the skills required for full use of their intellectual abilities; the exercise of good judgment; the prompt completion of all responsibilities in classroom and clinical settings; and the development of mature, sensitive and effective relationships with patients and other members of the healthcare team. Each student must be able to exercise stable, sound judgment and complete assessment and interventional activities. The ability to establish rapport and maintain sensitive interpersonal relationships with individuals, families and groups from a variety of social, emotional, cultural and intellectual backgrounds is critical to nursing practice.
The student must be able to adapt to changing environments, display flexibility, accept and integrate constructive criticism given in classroom and clinical settings, effectively interact in the clinical setting with other members of the healthcare team, and learn to function cooperatively and efficiently in the face of uncertainties inherent in clinical practice.
Ability to Manage Situations
The student must be able to adapt to and function effectively in stressful situations in both classroom and clinical settings, including emergency situations. Students will encounter multiple stressors while in the nursing programs. These stressors may include, but are not limited to, personal, patient care/family, faculty/peer and/or program issues.8 Meeting this particular standard is challenging, as many of the common disabilities nursing school faculty and administrators now encounter include ADHD, Asperger's syndrome, panic disorder, anxiety disorder and others.
The nursing academic administrator should meet proactively with the director of disabilities and legal counsel to determine what is and is not a reasonable accommodation for the clinical environment. It should be noted a classroom accommodation is distinct and separate from a clinical accommodation.
For instance, a student may be granted extended time for didactic classroom testing, but not given additional time to perform drug calculations in the clinical setting. Faculty members should not provide an accommodation for any student with a disability without the proper documentation respective to the accommodation from the Office of Disability.
Need for Consistency
It is imperative a consistent, transparent and fair process for addressing issues exists when students have difficulty meeting course clinical objectives or fail to meet the standards for safe nursing care. Clinical evaluation is a challenging, emotionally charged and complex process. It rarely is black and white, and quite often is accompanied by ambiguities and societal pressures — departmental or institution/societal pressures to pass the student, fear of reprisal from the student, lack of faculty confidence in making a determination of a failing grade and a personal belief the student may improve.
As we grapple with these issues, we need to remember nursing faculty members are responsible for making fair and just decisions on behalf of the public we serve.9 We have a responsibility as nursing professors and educators to educate and graduate only safe future clinicians and practitioners.
References
1. Janosik, S. (2005). Anticipating legal issues in higher education. NASPA Journal, 42(41), 401-414.
2. Kaplin, W.A., & Lee, B.A. (2006). The law of higher education (4th ed.). San Francisco: Jossey-Bass.
3. Gregory, D.M., et al. (2007). Patient safety: Where is nursing education? Journal of Nursing Education, 46(2), 79-82.
4. Poskanzer, S.G. (2002). Higher education law: The faculty. Baltimore and London: Johns Hopkins University Press.
5. Boley, P., & Whitney, K. (2003). Grade disputes: Considerations for nursing faculty. Journal of Nursing Education, 42(5), 198-203.
6. Chasens, E., et al. (2000). Legal aspects of grading and student progression. Journal of Professional Nursing, 16(5), 267-272.
7. Helms, L., Jorgensen, J., & Anderson, M.A. (2006). Disability law and nursing education: An update. Journal of Professional Nursing, 22(3), 190-196.
8. Drexel University. (2002). Technical standards for admission, academic progression, and graduation in undergraduate and graduate nursing programs. Retrieved Aug. 2, 2007 from the World Wide Web: http://www.drexel.edu/cnhp/nursing/technical.asp
9. Brown, Y., et al. (2007). Unsafe: Student clinical performance calls for a systematic approach. The Canadian Nurse, 103(3), 29-32.
Resource
Zuzelo, P. (2000). Clinical probation: Supporting the at-risk student. Nurse Educator, 25(5), 216-218.
Mary Ellen Smith Glasgow is associate professor and associate dean for undergraduate programs, MSN programs and continuing nursing education, and Michael Dreher is associate professor and director of doctoral nursing programs, both at Drexel University, Philadelphia.
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