Negligence and Malpractice
Nurse practitioners (NPs) carrying out their daily routines have one thing that appears on their “to do” lists every single day: “Do no harm.” Nevertheless, when an NP, or any other healthcare provider, makes hundreds of decisions a day, it is inevitable that mistakes will be made.
For example, researchers studying medical errors at a major teaching hospital followed nurses and doctors for nine months on three surgical units. They found that some medical error was made with almost half of the patients and that at least 18% of the patients had a serious consequence. Only 1% of these patients sued for malpractice, however.1
Though malpractice lawsuits against NPs are rare, the financial and emotional sequelae of being sued are so dire that it is worth dealing with this subject in depth. The incidence of lawsuits against NPs is difficult to state accurately, for a variety of reasons.
First, a filed lawsuit has no meaning other than to state that a person believes himself or herself to have been harmed. The belief may be unfounded. The blame may be placed on the wrong person. The complaint may not even meet the definition of malpractice. So, tracking the incidence of filed suits is of very limited value.
Second, some suits that are filed and that name NPs do so not because the plaintiff believes an NP caused harm but because an NP is a member of a team of caregivers who are being sued and because at the early stages of a lawsuit it is not clear who is responsible. On the other hand, some NPs who actually have been negligent may not be sued, for a variety of reasons.
Third, unless an insurance company reports a damage award—a successful lawsuit or a settlement for damages—against an NP to the National Practitioner Data Bank (NPDB), a lawsuit may come to light only if one searches county court or insurance company records. Insurance companies are required to report damage awards to the NPDB. If a suit is filed but the plaintiff is unsuccessful in proving the necessary elements for malpractice, there will be no report filed with the NPDB. Keeping a national tally of unsuccessful lawsuits filed against NPs is almost impossible.
This said, one study comparing the incidence of successful lawsuits against advanced practice nurses, physicians, and physician assistants found that in 2006, the chances of paying a malpractice award were 1 in 62 for physicians, 1 in 563 for PAs, and 1 in 1,016 for APNs, based on the ratio of awards divided by the number of licensed providers.2
▪ What Can Happen to an NP Who Is Sued?
An NP who is sued may feel like leaving the profession, may doubt his or her ability to make decisions, may resort to over-referring and seeking unnecessary consultation, may find that his or her insurance rates are increased, may miss days of work while testifying, may have to pay some legal expenses, and may have to mount a defense before the state licensing board.
Boards of nursing do not automatically investigate NPs who have lost malpractice lawsuits. However, if someone involved with the case reports the NP to the board of nursing, and the negligence approaches the level of gross negligence, the board of nursing likely will investigate. Gross negligence, for a professional, is the intentional failure to perform a professional duty in reckless disregard of the consequences.
▪ Life Cycle of a Lawsuit
A lawsuit starts with filing of pleadings with the state court, usually in the county where the incident occurred. Some states direct malpractice actions to an arbitration panel. The case is presented to the arbitration panel, and the panel makes a decision in favor of one party. Depending upon state law, either party may appeal, in which case there will be a trial. A judge or jury decides in favor of one party. Either party may then appeal to a higher state court. Rarely, a party will seek an appeal to a federal court. Federal courts may accept or refuse appeals from the state courts. It is possible that a malpractice case could go to the US Supreme Court, but highly unlikely. Usually, the highest state court of appeals is the highest level of consideration of a malpractice case, and often the parties will let the matter drop after the state trial court case. Because the holdings of state trial courts are not published, the public cannot easily access information on malpractice trials unless there is an appeal. The opinions of appeals courts are published, and that is the information attorneys and professionals can use to gain insight into malpractice cases.
▪ What Is Malpractice?
Malpractice is the failure of a professional to exercise that degree of skill and learning commonly applied by the average prudent, reputable member of the profession. Negligence is the predominant legal theory of malpractice liability. Negligence includes failure to follow up, failure to refer when necessary, failure to disclose necessary information to a patient, and failure to give necessary care.
▪ Elements of Malpractice
For success, plaintiff must prove the following elements:
NP owed plaintiff a duty.
NP’s conduct fell below the standard of care.
NP’s conduct caused plaintiff’s injury.
Plaintiff was injured.
Duty
A duty is established when there is a provider-patient relationship. A visit to the NP’s office by a patient establishes an NP’s duty to a patient. But there need not be an office visit to establish duty. Duty can be established by a telephone conversation or casual discussion with a patient or with someone who is not officially a patient. If an NP gives professional advice or treatment in any setting, a duty may be established. If an injured party has reason to believe that there was a provider-patient relationship, there may in fact be such a relationship, even if the provider did not think of the interaction in that way.
What Is the Standard of Care for NPs?
NPs are duty bound to use such reasonable, ordinary care, skill, and diligence as NPs in good standing in the same general type of practice in similar cases.
An NP is held to the standard of care of a reasonably prudent NP, and not necessarily to the standard of care expected of a physician. In many situations, however, the standards of care for MDs and NPs will be identical. For example, an NP doing primary care can be expected to be held to the same standard as a physician doing primary care.
If an NP is sued for malpractice, the standard of care will be argued in court. If an NP believes that she or he met the standard of care, the NP’s attorney will enlist expert witnesses, usually other NPs, who will give testimony describing the steps that a reasonably prudent NP would take in a similar situation. The plaintiff’s attorney also will enlist expert witnesses, who can be expected to testify that the standard of care called for other measures than those performed by the defendant NP. A judge or jury will accept either the plaintiff or the defendant’s explanation of the standard of care and will then decide whether the defendant NP met that standard.
Causation of Injury
For malpractice to have occurred, a breach of the standard of care must have caused an injury to the plaintiff. For example, a patient visits an NP and is diagnosed with otitis media. The NP prescribes penicillin, to which the patient is allergic as is marked on the patient’s chart. The patient leaves the clinic with penicillin, but before she takes the
penicillin, she is stung by a bee on the front steps of the clinic. She has an allergic reaction to the bee sting, falls and hits her head causing a permanent scar on her face. The patient sues the clinic and the NP, claiming that the NP had a duty to the patient, the NP breached the standard of care (by prescribing penicillin for a penicillin-allergic patient), and the patient suffered an injury. All of the above claims are true, but there is no malpractice because the breach of the standard of care (prescribing penicillin to an allergic patient) did not cause the injury (the wound to the head).
penicillin, she is stung by a bee on the front steps of the clinic. She has an allergic reaction to the bee sting, falls and hits her head causing a permanent scar on her face. The patient sues the clinic and the NP, claiming that the NP had a duty to the patient, the NP breached the standard of care (by prescribing penicillin for a penicillin-allergic patient), and the patient suffered an injury. All of the above claims are true, but there is no malpractice because the breach of the standard of care (prescribing penicillin to an allergic patient) did not cause the injury (the wound to the head).
Injury
A provider may be terribly negligent, but if there is no injury, there is no malpractice. For example, if an NP prescribes penicillin to a patient who is allergic, and the patient takes the penicillin but has no reaction that injures the patient, then there is no malpractice, even though the standard of care has been breached and even though, if an injury occurred, there would have been a causal relationship between breach of the standard of care and injury.
▪ Examples of Lawsuits Against NPs
Missed Diagnosis
Example 1: The patient, a middle-aged man, began experiencing chest pain at work. He called the clinic and got an appointment for 4 PM. He worked until 4 PM and went to the clinic. An NP evaluated the patient, took a history and examined him, and conferred with a physician. The NP diagnosed muscle spasm and initiated treatment with Valium.
The patient went home, went to sleep, and awakened at 1 AM with severe chest pain. He went to the emergency department, where he was examined by a physician. A chest X-ray was taken. The physician diagnosed muscle spasm. He ordered Demerol, intramuscularly, and prescribed oral codeine.
At noon the next day, the patient’s chest pain returned and was more severe. He went to the emergency department. An electrocardiogram was done, which showed a myocardial infarction. Finally, a correct diagnosis was made. The patient recovered but did not return to full-time work for 18 months. The patient sued for lost wages and won against the NP and the medical group [Fein v. Permanente Med. Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 369 (1985)].
What NPs Can Learn from This Case: Rule out the worse diagnosis early on, especially if it can be done easily and inexpensively, as with an electrocardiogram.
Example 2: An NP saw a young married female patient for symptoms of cramps, headache, dysmenorrhea, and lesions on the perineum during menses. The NP examined the patient and, on the basis of the physical exam, diagnosed genital herpes.
The NP counseled the patient about causes, prevention, and treatment. A physician working with the NP prescribed an antiviral medication appropriate for treating genital herpes.
The NP counseled the patient about causes, prevention, and treatment. A physician working with the NP prescribed an antiviral medication appropriate for treating genital herpes.
The symptoms continued. The patient saw another physician, who correctly diagnosed the lesions as severe candidiasis.
The patient sued the NP and the employing MD, claiming pain and suffering and expenses of treatment. The patient’s husband claimed loss of society, companionship, and conjugal relationship with his wife.
The court dismissed the case against the NP but found that the MD associated with the NP had breached the standard of care. The plaintiff won against the MD.
The physician appealed the case, asking whether the NP’s mistake was correctly imputed to the physician. The appeals court said it was [Adams v. Kreuger, 124 Idaho 74, 856 P.2d 864 (1993)].
What NPs Can Learn from This Case:
The diagnosis of a sexually transmitted disease carries with it an emotional component. A patient surely will discuss the matter with the partner, and relationships may break up as a result. Confirm physical exam findings with laboratory testing, especially when diagnosing sexually transmitted diseases.
Some courts do not consider NPs to be professionally responsible for their judgments.
Example 3: A patient came to a medical office for a history and physical. An NP took the history and noted that there was a remote history of ulcer, with no recent complaints. The patient came back later complaining of back pain. A physician read the NP’s history and initiated aspirin therapy. The patient developed a gastrointestinal bleed. The patient sued the NP for failing to diagnose an ulcer and sued the physician for failing to order an endoscopy before starting the patient on aspirin. The court found for the NP and the physician. The court found that the patient had failed to prove a connection between the patient’s gastrointestinal bleed and the failure to diagnose the ulcer or order an endoscopy earlier [Topp v. Logan, 197 Ill. App. 3d 285, 554 N.E.2d 454, 143 Ill. Dec. 519 (App. Ct. 1 Dist. 1990)].
What NPs Can Learn from This Case: Not every bad outcome is someone’s fault. There must be causation between a breach in the standard of care and a poor outcome.
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