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Elements of Negligence in Nursing Malpractice 8/27/2004 Negligence and malpractice are used synonymously in litigation. The
difference in terms is that “malpractice” is more of a
restricted or specialized kind of negligence, defined as a
violation of professional duty or a failure to meet a standard of
care or failure to use the skills and knowledge of other
professionals in similar circumstances. Nursing negligence is described as the action or non action
that breeches the standards of care, causing damages and nursing
malpractice action. Negligence needs to be established before you can have a nursing
malpractice case. “Negligence” is the failure of a nurse to
act as a reasonably prudent person under the same or similar
circumstances, which causes or results in harm to the patient. The elements of negligence are (1) duty; (2) breach of duty; (3)
causation; and (4) injury and damages.
Without all four elements clearly established there will be
no case to claim malpractice in a court of law. Duty is normally not an issue because the nurse, as an employee, has
agreed to the assignment. Breach of duty is the failure of the nurse to follow the standards of
care found in the hospital’s unit policies and procedures,
authoritative nursing textbooks, Board of Registered Nursing (BRN),
and the nursing specialty association guidelines/standards. Standards of Care can be defined as care that is taught in nursing
schools, with reference text books, and the hospital policy and
procedure manuals. It
is also the nurse’s responsibility to obtain continual knowledge
of the on going changes in health care. Many states mandate
continued education in order to maintain licensing in that state. Causation is the key word. In order for the case to be compensable the
act or incident/ negligence had to have caused harm to the
patient. One can ask the question if this act had or had not
occurred would the results have been the same. The next question
is what the nurse did about the error or omission of her action. Lastly, there must be an injury. If
there is no injury, there is no established negligence. There has
been no instance of damages. An example would be a nurse gives the wrong does of insulin. A blood
sugar is checked and found to be 30. The nurse follows the
standards of care for hypoglycemia.
The attending physician is notified, and the patient is
monitored and the blood sugar returns to normal in 1 hour. In this
instance, there are no residual damages.
There is duty, a breach of duty (the drug error) and
causation (subsequent low blood sugar), but no damages. The high risk areas for malpractice are:
As a legal nurse consultant use the elements of malpractice as your “mental” template. When you review the case, write on sticky notes and put into the margins 1) duty, 2) breach of duty, 3) causation, and 4) injury and damages.
Include these terms in your report to the attorney to
support your conclusion confirming that there is a legitimate
malpractice case. References: American College of Legal Medicine (1995) Legal Medicine (3rd Ed.) St.
Louis: Mosby. Nurse Legal Handbook (4th Ed.) (2000) Springhouse, PA:
Springhouse Corporation The author wants to thank Jack
Roberts @ Peak Positions
for making this article available to our customers. Jan Parrish, RN, BSN, LNC
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