CHAPTER 46. Malpractice and Negligence
Alice C. Murr and Mary Frances Moorhouse
Nursing is a dynamic profession that continually evolves in response to changing needs, demands, and resources of society. The complexity of the healthcare delivery system today is such that the roles and responsibilities of the nurse are constantly expanding. Increased responsibility and independence are accompanied by increased accountability for nursing decisions and practice. Furthermore, Internet sites and television advertisements help shape expectations of healthcare recipients and may impact decisions to litigate. In a litigious society, an increasing number of nurses are being named in malpractice lawsuits by patients turned plaintiffs (Sharpe, 1999). For their own protection, and certainly for that of their patients, nurses must be aware of their legal rights and responsibilities.
Laws provide a basis for nursing intervention in the provision of patient care, they distinguish the roles and responsibilities of the nurse from those of other healthcare providers, and they define the boundaries of dependent or autonomous practice in various roles and clinical settings.
Standards of Care
When a nurse is sued for malpractice, he or she is being sued for negligence, broadly defined as “the failure to use ordinary or reasonable care” (Garner, 2004). Being held to a “reasonable standard” dictates that the nurse practices within professional standards of care.
Nursing practice is based on the understanding and use of a body of knowledge, some of which is borrowed from other disciplines, some of which is unique to nursing. The American Nurses Association (ANA) defines “standard” as the “authoritative statements by which the nursing profession describes the responsibilities for which its practitioners are accountable….written in measurable terms, standards also define the nursing profession’s accountability to the public and the client outcomes for which nurses are responsible.” (ANA, 1991)
The term standard of care is defined in tort law as “that average acceptable degree of skill, care, or diligence that a reasonable and prudent person in the same profession, would, or should, exercise under the same or similar circumstances” (Sharpe, 1999). This broad definition is further refined by various means. It is established through regulatory agencies, such as state boards of nursing, as well as by healthcare facility policies, procedures, and protocols; practice guidelines published by policy and accrediting agencies (e.g., The Agency for Healthcare Research and Quality [AHRQ], or The Joint Commission [TJC]); and by professional and clinical specialty organizations, (e.g., ANA, American Association of Critical-Care Nurses [AACN], Association of Operating Nurses [AORN]).
Standards of care are published in professional journals, nursing textbooks, and practice guidelines (e.g., care maps/clinical pathways, algorithms, protocols, technical bulletins). Standards may be implied in the advertising of any agency (e.g., “neonatologist on staff 24 hours a day” or “XYZ Hospital provides the best care in the Midwest”) making a claim that can be held as a standard of care, particularly when a legal action is considered (Harvey, 2004).
Although all nurses at all practice levels are held to a standard of care, that standard of care varies somewhat according to geographical locale and practice setting (e.g., intensive care unit; inner city health clinic; industrial, educational and corrections facilities; legal and investigative arenas), and type of practice (e.g., advance nurse practitioner, staff nurse in hospital or community clinic, facility administrator, medical examiner, legal consultant).
Standards of care, arise from the following:
• Regulations based on state and federal statutes. The clinician has an obligation to adhere to federal laws and her or his state’s nurse practice act and scope of practice guidelines. State boards of nursing set the standards for entry into nursing practice, regulate licensure, enact regulations and standards, and adjudicate cases involving violations of professional standards or rules. Nurse practice acts contain general statements of appropriate professional nursing actions. They define nursing, set standards for the nursing profession, and give guidance regarding scope of practice issues. As such, a state’s nurse practice act is the single most important piece of legislation affecting nursing practice. The nurse must incorporate the nurse practice act with her or his educational background, previous work experience, institutional policies, certification requirements, and technological advancements. The nurse must demonstrate competence through the elements of a professional knowledge base, awareness and use of appropriate practice standards, decision-making and communication skills, and experience. Performance may be quantified periodically through continuing education, peer review, and clinical area certifications. Violating any statute or regulation of the state automatically makes the nurse and her or his employing facility negligent.
• Professional practice guidelines. In the ANA Code of Ethics, provisions are listed that state the ethical obligations and duties of professional nurses. The elements describe the nurse’s fundamental commitment and values, boundaries of duty and loyalty, aspects of duties related to advancing the profession, and collaborative efforts with other healthcare professions to shape policy and meet the health needs of society (ANA, 2004). Professional practice is also guided by protocols and guidelines written for specific practice areas that are drafted in a general way so as to apply to nursing care in a variety of settings.
• Facility policies and procedures. Required by law and accrediting agencies, policies and procedures are used in court to establish standards of care. It is expected that the nurse’s practice is consistent with these policies and procedures, and when a lawsuit has been brought, they are most likely the first documents examined when evaluating whether or not a standard of care was met. Failure to follow policy does not mean that the nurse is automatically negligent, but it can mean that it will be up to a jury to decide whether or not the nurse was negligent.
Nursing Malpractice and Negligence
The term malpractice is used to define professional negligence; as such, it is a subset of negligence, although in general the terms are used interchangeably. Specifically, malpractice is negligence committed by a person in a professional capacity and differs from simple negligence in that it involves specialized skills and training not possessed by the average person.
Although there are numerous legal claims that may be brought against a nurse, the most prevalent claim is negligence. Simply stated, nursing negligence is deviation from the standard of care. If the nurse acts in a way that a reasonably prudent nurse would not act, or fails to take action in a way that a reasonably prudent nurse would act, the nurse’s actions (or omissions) are negligent. The law touches on a wide range of possible nursing conduct that falls under the legal heading of negligence (including failure to render care or failure to rescue), that meets applicable standards, or that indicates the nurse acted in a manner that was intentionally harmful to the patient (Sharpe, 1999).
Even when a nurse’s actions are not intended to bring harm to the patient, the patient or representative can bring a negligence suit against the nurse. Negligence per se is a situation in which expert testimony is not required to establish the applicable standard of care, if the defendant’s conduct violates a law that is designed to protect the class of persons of which the plaintiff is a member. For example, liability existed without citing standard of care when a student nurse administered anesthesia, in violation of a state statute, and injured the patient (Central Anesthesia Assoc., P.C. v. Worthy, 1985, cited in Brown v. Belinfante, et al., 2001).
Expert witnesses are used by both prosecuting and defense attorneys to establish standards of care. The expert’s role is to explain to the jury the standard of care based on her or his particular expertise. The question of who can testify to standards of care may depend on specific statutory or case law in any jurisdiction, but in general, a testifying expert must possess sufficient training, experience, and knowledge (as a result of practice or teaching in the clinical setting or specialty area where the incident occurred) as to satisfy the court that she or he is familiar with the accepted standard of care (Harvey, 2004). Although physicians have testified regarding nursing practice, it is being recognized that medicine and nursing have different philosophies and approaches, and physicians are not educated in nursing. Nurses should testify regarding nursing practice and should not testify as a medical expert linking a breach of the nursing standard of care to medical complications suffered by the plaintiff (Echard v. Barnes-Jewish Hosp., 2002). In the end, the jury will interpret the opinions of the expert witnesses and determine if negligence has occurred.
Elements of Negligence
In order for a plaintiff to prevail in a suit against a nurse for negligence, the plaintiff must prove all four elements of the cause of action: duty, breach of duty, causation, and damages.
Duty
Duty is defined as acts or interactions required after the presumption of a relationship between the provider and a patient. Duty is established when the nurse (1) provides direct care to an individual, (2) observes an unattended person in need of care, or (3) observes or is aware of another provider performing care in a manner that may cause harm (Brent, 2001 and O’Keefe, 2001).
Breach of duty
A breach of duty is defined as neglect or failure to fulfill, in an appropriate and proper manner, the duties of a job (Ashley, 2004 and O’Keefe, 2001). To determine whether or not a duty was violated, it is necessary to delineate the standard of care of a particular circumstance. It must be determined if the nurse (1) met the standard of care, (2) did not do the right thing (misfeasance), (3) did nothing/did not act (nonfeasance), or (4) did the right thing in the wrong way (malfeasance) (Murr & Moorhouse, 2001).
Causation
The proximate cause (causation) is often the most difficult element to prove. The difficulty lies in the fact that the cause of an injury often cannot be easily identified. A nurse’s negligence may be one of several possibilities. Foreseeability is a causation concept that can apply, stating that the nurse has a responsibility to anticipate harm and eliminate risk. For example, if a drug book states that wrong dosage of a certain seizure medication may cause injury, the element of forseeability of causation of harm exists. If a wrong dosage is administered and the patient suffers a seizure as a result, a direct relationship could be proved between the patient’s injury and the nurse’s action (Marquis & Huston, 2008).
Another element called res ipsa loquitur (the thing speaks for itself) can apply to causation, if four conditions have been met:
1. The act that caused the injury was exclusively in the nurse’s control.
2. The injury would not have happened but for the nurse’s negligence.
3. No negligence on the patient’s part contributed to the injury.
4. Evidence of the truth as to what happened is unavailable (Iyer & Aiken, 2001).
A simple example of res ipsa loquitur might include this: a patient emerges from the operating room with a burn on his right posterior thigh that was not present before surgery. The surgical table equipment was under the nurse’s control, and the patient had no part in the injury because he was unconscious. Therefore, the causation for injury would be considered as applying to the nurse.
Damages
Damages are defined as monetary compensation that may be recovered in court if the plaintiff shows that the act or omission damaged or harmed him or her in some way. Actual or compensatory damages are losses sustained by the injured person and include relevant medical expenses, lost earnings, impairment of future earnings, and past and future pain and suffering. Punitive damages are designed to punish defendants. The character of negligence necessary to sustain an award of punitive damages must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons” (Brent, 2001, p. 88). For example, a patient admitted to an extended care center for rehabilitation was left restrained in a bed or chair for extended periods of time until advanced pressure ulcers developed, ultimately leading to his death (Doherty, 1993).
Criminal versus Civil Law
Laws can be classified in a number of ways, based on whether they are substantive, procedural, civil, or criminal. All types of law are intermingled in various ways and in different areas of litigation and practice. Civil law recognizes and enforces the rights of individuals and organizations. Criminal law defines crimes and the punishment an individual can incur, including loss of freedom (Aiken, 2004).
When it comes to guilt, the scales of justice are balanced in a civil trial, but weighted for the defendant in a criminal case. In a criminal case, the defendant is presumed innocent until proved guilty. The winner in a civil trial need only move the scale a “feather’s weight” (to 51%) to prevail, whereas in a criminal case, guilt must be proved beyond a reasonable doubt (Murr & Moorhouse, 2004).
One of the two areas of civil law is tort law. A tort is a wrong that harms. The three types of torts include intentional torts, negligence (nonintentional torts), and strict liability. These wrongful acts, whether arising from intentional or negligent conduct, have as their common principle the idea that injuries are to be compensated. Differences between intentional and nonintentional torts can be characterized as differences in intent, injury, duty, and consent (Aiken, 2004).
Although negligence can occur without harmful intent, an intentional tort is an action requiring a specific state of mind, usually an intention to do a wrongful act. In intentional tort actions, plaintiffs do not have to prove that any actual injury occurred, as the harm is in the invasion of a person’s rights. Potential consequences of intentional torts include loss of reputation and esteem, exposure to criminal liability, loss of professional license, loss of insurance, and punitive damages (Murr and Moorhouse, 2001 and American Nurses’ Association (ANA)).
Intentional Torts
These actions include acts that violate another person’s rights or property. In the medical arena, this includes assault, battery, and false imprisonment (Harvey, 2004 and O’Keefe, 2001).
Assault
Assault is an act that is designed to make a person fearful or in apprehension of bodily harm. Assault does not require touching; it can be a threatening statement, such as, “If you don’t stay in that chair, I am going to tie you down.”
Battery
Battery is the unlawful or offensive touching of another without consent. Examples of battery committed by a nurse are inserting an intravenous (IV) line after the patient revokes permission or inserting a feeding tube in a terminal patient who is refusing care.
False imprisonment
False imprisonment is defined as unlawful, intentional, and unjustifiable detention of a person against his or her will within fixed boundaries so that the person is conscious of or harmed by the confinement. An example of false imprisonment could be the use of direct physical or chemical restraints or detaining the person in a care setting against his or her will or desire for treatment.
Quasi-intentional torts
These actions include such elements as defamation, slander, invasion of privacy, and breach of confidentiality. The latter two have more implications in the healthcare environment of today (Harvey, 2004 and Morrison, 2000).
• Invasion of privacy can occur in any medical setting where a patient’s name or medical information is viewed or obtained by unauthorized individuals; these actions can involve public exposure of private facts, intrusion on the seclusion or private concerns of the person, or the patient’s name or picture being used without express written consent.
• Breach of confidentiality is a legal and ethical concern for healthcare providers, especially in this day of electronic record keeping and transmission of medical information through various means, such as e-mail, the Internet, and facsimile (fax). For example, information can be left on a computer screen, faxes can be sent to providers, or payers can be viewed by many persons, and sensitive information can be unintentionally given to unauthorized individuals.
Liability Issues in Healthcare
Common sources of nursing liability include failure to notify the physician, making assumptions about following questionable orders, inadequate monitoring, failure to follow policies and procedures, medication errors, failure to safeguard against falls and other preventable injuries, use of unsafe equipment or failure to use equipment correctly, and breach of confidentiality. Each will be discussed briefly here.
Failure to notify the physician
The nurse must communicate thorough, accurate, and timely information about the patient’s condition to the physician and others as appropriate (e.g., other caregivers, family [if patient allows], and chain of command in nursing/facility staff). Some malpractice cases have hinged on whether the nurse was persistent enough in attempting to notify the physician or in convincing the physician of the seriousness of a patient’s condition. Courts are likely to recognize that after-the-fact communication is no communication.
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