Nursing malpractice: determining liability elements for negligent acts.

Croke, E. (2006). Nursing malpractice: determining liability elements for negligent acts. Journal of Legal Nurse Consulting, 17(3), 3.

Link: Nursing malpractice: determining liability elements for negligent acts (PDF format attached here)

Essay Prompt: Identify primary problems that led to the malpractice suits (Croke, 2006), and identify the role the nurse played and what the nurse did wrong.

Your 1-2 page paper should include adhere to APA formatting and references/ citations for the article. Additional sources are optional.

Despite ongoing efforts to educate nurses on the law and their professional responsibilities through nursing programs and continuing education courses, the number of nurses named as defendants in malpractice actions continues to increase (Croke, 2003; Guido, 2006; National Practitioner Data Bank (NPDB) Annual Report, 2004). In 1986, The Health Care Quality Improvement Act, Title IV of P.L. 99-660, authorized the Secretary of Health and Human Services to establish and monitor a national practitioner data bank (NPDB). The mission of the NPDB is to protect the public by “restricting the ability of unethical or incompetent practitioners to move from State to State without disclosure or discovery of previously damaging or incompetent performance”(NPDB, 2004, p.10).

The NPDB is a central repository receiving information from private and governmental agencies under U.S. jurisdiction. Information received by the NPDB is accessible to registered entities, such as state licensing boards and professional societies, which are eligible to query. Although patients cannot access the NPDB, health care providers listed in the NPDB can access their own information to check for misinformation. The NPDB collects information on physicians, dentists, nurses, and other health care practitioners who, as a result of judgments in malpractice suits, have entered into settlements, had disciplinary action taken against them that resulted in their licenses being revoked or suspended, had their privileges to practice limited, or had to pay monetary awards (Croke, 2003). According to the National Practitioner Data Bank 2004 Annual Report, since its inception in 1990 and continuing through 2004, there have been approximately 5,001 malpractice claims assessed against all types of registered nurses (RNs). The NPDB established the following malpractice reason categories for reporting numbers of nursing malpractice payments: Nursing malpractice: determining liability elements for negligent acts.

Anesthesia related Behavioral health related Diagnosis related

1. 2. 3.

Equipment or product related IV or blood products related Medication related Monitoring related Obstetrics related Surgery related Treatment related Miscellaneous The NPDB classifies RNs into five categories:

nonspecialized RNs, nurse anesthetists, nurse midwives, nurse practitioners, and clinical nurse specialists/advanced practice nurses. Nonspecialized RNs were responsible for the most malpractice payments (3,131 or 62.7%), followed by nurse anesthetists (1,035 or 20.7%), nurse midwives (459 or 9.2%), nurse practitioners (368 or 7.3%) and clinical nurse specialists/advanced practice nurses (8 or 0.2%). The majority of payments for malpractice claims were based upon monitoring, treatment, and medications problems, as well as obstetrics and surgery-related problems (NPDB, 2004).

Today’s health care environment poses even greater liability risks for nurses. Liability risks that have contributed to the increased number of malpractice cases against nurses include: improper supervision/delegation, early patient discharge, nursing shortage, hospital downsizing, increased autonomy, advanced technology, and better-informed consumers (Croke, 2003). The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) defines negligence as a “failure to use such care as a reasonably prudent and careful person would use under similar circumstances” and malpractice as:

improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory. Malpractice is a cause of action for which damages are allowed (JCAHO, 2005).

4. 5. 6. 7. 8. 9. 10. 11.

Nursing Malpractice: Determining Liability Elements for Negligent Acts Eileen M. Croke, EdD MSN RN ANP LNCC

Nurses must be concerned about malpractice litigation because nurses may now be held accountable for their own negligence. It is important for each nurse to know relevant law and legal doctrines, and incorporate them into everyday practice as a safeguard for the health care provider as well as the health care recipient (Guido, 2006). This article will review each element involved in determining legal liability for negligent acts. When reviewing a nursing malpractice case for merit, the legal nurse consultant (LNC) needs to determine if all liability elements are present. Two case analyses of nursing malpractice are presented as examples for determining nursing liability. This article is not intended to be a substitute for contacting an attorney when questions arise about nursing malpractice litigation.

KEY WORDS Damages, Duty, Pecuniary Losses, Proximate Causation, Res ipsa loquitor

� • Journal of Legal Nurse Consulting • Summer 2006 • Volume 17, Number 3

In 2004, the median and mean payments for all types of registered nurses were $100,000 and $302, 737, respectively (NPDB, 2004). Nurses must be concerned about malpractice litigation because nurses may now be held accountable for their own negligence. It is important for each nurse to know relevant law and legal doctrines and incorporate them into everyday practice as a safeguard for the health care provider, as well as the health care recipient (Guido, 2006).

Liability Elements of Malpractice Litigation For a nurse to become liable in a malpractice action, the

law requires that certain elements be proven by the plaintiff before a successful case can be brought against the defendant nurse (Guido, 2006). The elements include duty, breach of duty, foreseeability, causation, injury, and damages, except as noted under doctrine res ipsa loquitor. When reviewing a nursing malpractice case for merit, the legal nurse consultant (LNC) needs to determine if all liability elements are present. If any of these elements is missing, the nurse is not liable for malpractice. The LNC must know relevant state laws and definitions applicable for each element of liability. A summary of medical malpractice laws indexed by state is located at www.mcandl.com/states.html.

Duty. The duty of care that is owed to a patient is when an individual engages in an activity where that individual is under a legal duty to act as a reasonable and prudent person would act (Guido, 2006). Two aspects are involved in the duty of care. The first aspect that must be shown is that a duty was owed to the patient. This aspect is created by a legal nurse-patient relationship, not just by employment status; a legal nurse-patient relationship must exist before a lawsuit can commence. Examples of such a relationship include instances when the nurse accepts a patient care assignment, receives a report on a patient, or gives telephone advice to a patient. The LNC may be asked by the attorney to research the nature of the relationship between the plaintiff and alleged defendant nurse (Iyer, 2003). Nursing malpractice: determining liability elements for negligent acts.

The second aspect of duty that must be proven is the scope of care that was owed to the patient. The standard of care owed to the patient is that exercised by a reasonable and prudent nurse with like training and experience and under the same or similar circumstances. Nurses are held accountable to the standard of care that was in existence at the time the care was rendered. Various sources for standards of care include JCAHO, State Nurse Practice Act (NPA), National League for Nursing (NLN), American Nurses Association (ANA), nursing specialty organizations, institutional policies and procedures (P&P), hospital nursing job descriptions, nursing journals and textbooks, and expert witness testimony.

Breach of Duty. This occurs when a nurse’s care falls below the acceptable standard of care owed to the patient. The deviation can occur by an act of omission or commission. For example, a nurse omits giving an ordered insulin dosage to a known diabetic patient, and the patient lapses into a diabetic coma. Or a nurse gives an ordered insulin dosage to a known diabetic patient, fails to monitor his subsequent lack of oral

intake, and the patient suffers a debilitating hypoglycemic reaction. Whether a nurse has satisfied or breached the duties of care owed to the patient is determined by the applicable standard of care.

Due to the fact that medical and nursing knowledge is “more technical than the scope of common knowledge,” most state laws require the use of expert witness testimony for establishing the standard of care at issue in a medical or nursing malpractice lawsuit (Iyer, 2003). The expert witness must be qualified by reason of education, training, or experience to opine about a given subject matter (Testimony by Experts, 2000). If the negligence action falls within the common knowledge exception, such as when the subject matter is within the ordinary, common knowledge and experience of the layperson, expert testimony may not be required. Together, the attorney and LNC must determine the applicable standard of care owed to the patient in existence at the time the nurse rendered the patient care.

The LNC reviews the entire medical record, “comparing and contrasting care with published standards determining whether or not there was a breach in the standard of care in a given subject matter” (Iyer, 2003, p. 262). The review also facilitates determining case issues and selection of qualified experts.

Foreseeability. In this area, the nurse has a responsibility to foresee harm and take actions to eliminate the risk. The nurse does not need to foresee events that are “merely possible,” but only those that are “reasonably foreseeable” (O’Keefe, 2001).

Could the nurse in the preceding example reasonably foresee that not monitoring a patient’s lack of oral intake subsequent to receiving insulin would result in a hypoglycemic reaction? “The challenge is to show that one could reasonably foresee a certain result based on the facts as they existed at the time of the occurrence rather than what could be said based on retrospective thinking and results” (Guido, 2006, p. 75).

Causation (proximate cause). This area is more difficult for the plaintiff attorney to prove. Causation builds upon cause-in-fact and foreseeability. In cause-in-fact (also known as the “but-for” test), the plaintiff must show that the nurse’s breach in the standard of care actually resulted in the plaintiff’s injury and that these injuries were reasonably foreseeable. For example, a nurse may administer a wrong drug dosage to a patient in breach of standard of care, but there was no subsequent injury; therefore, the plaintiff does not have a cause of action.

When determining a nurse’s negligent action in relation to the alleged injury, Iyer (2003) recommends that the LNC should ask the following questions:

Did the negligence cause the injury? Did the breach cause all or part of the plaintiff injury? Is there any reason why the result would have been the same absent the deviation? Legal definitions for causation are found in jury

instruction guides for the jurisdiction in question. “The jury instruction guide states the precise language that a judge willNursing malpractice: determining liability elements for negligent acts.