malpracticeGenerally, medical malpractice refers to professional negligence by the hospital or its staff whose actions have caused emotional, physical and monetary damage to a patient under care. Its scope includes physicians, nurses, and other healthcare professionals. However, it has long been associated with doctors. What most people don't know is that this issue is also prevalent in the nursing profession.

In fact, statistics show that medical malpractice in nursing has significantly increased in the past few years. This shows that nurses should be concerned about the elements involved in malpractice and avoid being sued thereafter.

A malpractice case begins with a chart review to determine if deviations from the standard of care occurred. An expert's signed affidavit details any deviations. Expert qualifications addressed in the Daubert Standard typically include being active and current with experience in the same area for at least 3 of the 5 years prior to the incident. Tennessee requires experts be from a similar size facility in the same or an adjacent state.

Standard of Care

The Standard of Care is derived from organizational policies and procedures, plus those from regulatory bodies. Policies and procedures will be reviewed by opposing councils. These may be general or specific to the nursing practice. Regardless, it should be neither too broad nor too narrow and should be reviewed periodically.

Policy and procedure defines the minimum expected of staff, and they may exceed policy and procedure. Copies of policy and procedure should also be accessible at all times. The affected staff should be involved when creating policies and procedures. They are responsible for following them after training. Other hospital sources include mandatory and documented in-services.

Regulatory bodies include the Centers for Medicare & Medicard Services (CMS) and The Joint Commission.

Four Elements of Malpractice

The four elements of medical malpractice that must be satisfied before filing anything are:

  1. Duty
  2. Breach of Duty
  3. Damages
  4. Causation

The burden of proof is on the plaintiff, the party with the complaint. If any of the four elements is not satisfied, malpractice is not proven.  

  1. Duty

    Duty is what you owe to the patient. Make sure to use a broad term when defining duty organizationally in policies and procedures. For example, use "provide a safe environment" rather than "prevent harm." The latter may imply any harm befalling a patient is the nurse's fault.

    Nursing duty includes interpreting and following physician's orders. A duty undertaken must be performed correctly. For example, when attempting to start an IV or when intubating, persistence may be good. But at what point will a jury wonder, "Why didn't they call in someone that knew what they were doing?" Delay in treatment is generally defined as more than 4 hours. If an IV cannot be obtained, choose another route if able.

  2. Breach of Duty

    The duty owed to patient is breached by responsible party. For example, a nurse fails to provide a safe environment by omitting to put the bed down.

  3. Damages

    Damages occur as a result of the breach. The patient falls out of that bed and breaks an arm, incurring damages. If the patient falls but is not injured, no damages occur.  This may be poor patient care, but does not satisfy the element of damages.

  4. Causation

    There must be a direct cause and effect to the injury. This is usually the most difficult to prove. The "But for the bed being left in the high position, the patient would not have fallen."

    Another sample situation: A fentanyl and Marcaine epidural was ordered during labor. The mother received a mislabeled epidural of morphine, resulting in an overdose. This necessitated Narcan reversal for the baby. No expert was able to determine that "but for the mother's overdose," the baby would not have subsequent developmental issues. In this case, causation is not satisfied.

Now that you know these 4 criteria, you can help protect yourself from unjustified claims of medical malpractice in the nursing profession. However, remember these are still not excuses for poor nursing care.

About the Author: Katie Morales MSN, RN, C is a legal nurse consultant. Know more about her practice—visit her website at DisceRNment, LLC.