Legal File: Elements of negligence and malpractice 
Rebecca Walker JD, MSN 

The Nurse Practitioner: The American Journal of Primary Health Care
May 2011 
Volume 36 Number 5
Pages 9 - 11

Malpractice suits against advanced practice nurses (APNs) are rising in number and increasing in severity. APNs need to understand the basics of nursing malpractice, including their liability, options with malpractice coverage, the future of the APN's role, and legislative issues such as tort reform. To assist the APN with this learning process, the organization the APNs are employed by, other professional associations, the colleges of nursing, and state and national regulators are all valuable resources. In an analysis of APN practice it appears that potentially some 20% to 30% of APN care is delivered by phone, and may expose the practitioner to a level of liability that might not have been previously considered. In deciding these cases, courts look to establish what is a reasonable response for a prudent APN. They determine what is "reasonable" by looking at policies and procedures, testimony of professional experts in the field, and evaluating local and national standards, as related to causation and injury. Nursing practice is not just a list of tasks that one can perform in their profession; it is a scientific process that changes with healthcare advancement and public policy.

Any written scope of practice, be it state regulation or national professional standard, must be written broadly enough as to not limit professional growth, while at the same time providing the practitioner guidelines for determining limitations. This article will review standards of practice, the elements of civil negligence, and apply the rules of law to APN professional practice.

The Joint Commission defines negligence as the "failure to use such care as a reasonably prudent and careful person would use under similar circumstances." The Joint Commission also defines malpractice, in part, as "improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position."1 According to the National Practitioner Data Bank, more APNs are being named in malpractice actions every year. As more autonomy is awarded and APN roles expand to meet the demands of society, the APN will be exposed to a heightened level of liable for medical malpractice.

Tort law

Although there are many variations in APN standards of practice depending upon specific licensure, specialty, collaborative requirements, prescriptive authority, and the like, one constant remains: the requirement to act reasonably within that specific area of practice. In evaluating legal liability, the act of being "reasonable" is determined through the application of tort law.

Tort law is a specific area of law that encompasses civil negligence. When sued for medical or nursing malpractice, the Court must determine whether or not the practitioner was negligent, and if found negligent by the Courts, professional malpractice has occurred. Medical malpractice has become a specialized area of legal practice where attorneys focus on claims involving healthcare practitioners. As such, the attorney should be well versed in regulatory requirements, scope of practice, and professional organization recommendations and standards.

When working with legal counsel, APNs should make certain that the attorney fully understands the professional standards and scope of practice for that specific APN specialty and doing this will provide for a better working relationship with legal counsel as well as an improved understanding of the nurse's professional limitations.

Negligence

Claims based on medical malpractice will almost always encompass the elements of civil negligence. Although civil negligence claims may be complicated by legal rules, subparts to legal elements, and prior common law decisions, there are four basic elements to all negligence claims. In determining whether or not negligence has occurred, the general rule in civil tort law requires that if in fact one of the elements is not demonstrated under "a preponderance of the evidence" evidentiary standard, the entire claim for negligence should fail and the practitioner should be successful in defending the claim. It would be naive to believe that all rules of law are applied evenly, and as such, to protect their practice APNs should have a basic understanding of the elements of negligence.

Looking specifically at negligence, the first element to be established is that a "legal duty" was owed. Legal duty is established by evaluating the practitioner's scope of practice. The ultimate question is "would a reasonable or prudent APN in the same or similar circumstances have acted or reacted the same?" The first tier in evaluating whether or not the legal duty is owed will be the policies and procedures under which the APN practices. Regardless of where the APN practices, there will always be policies and procedures that will establish the standards of care. For example, if the APN practices in a private practice and is caring for a client in a hospital setting, the APN will be responsible for practicing within the limits of the hospital policies while caring for that client in that facility. All APNs must be acutely aware of the different facility policies for independent practitioners. After evaluating the facility policies the legal analysis will turn to local boards of nursing licensure, national regulatory standards and professional organizational standards, along with any professional positional statements or practice guidelines to determine standards of care. To combat the task of knowing what these standards are, the APN should be active in local and national organizations to keep up to date on changing scopes of practice.

Breach of legal duty

The second element to be determined by the Court after establishing the legal duty is to determine whether or not there was a "breach" of the legal duty. Breach of legal duty takes into consideration the legal analysis of "foreseeability." Although commonly one of the key issues litigated, Restatement, (Third) of Torts addresses foreseeability as "the ability to perceive or reasonably anticipate that an injury could occur from the act or omission of a legal responsibility."2 Therefore, the next step will require evaluating whether or not it was perceivable that the damages asserted by the plaintiff were foreseeable when the duty owed by the practitioner was breached.

Causation

The third element of civil negligence is causation. Although this element has other rules of law and requirements to be successfully established, it simply links the breach of the practitioner's duty to the damages asserted. This element answers the question "was the injury 'caused' by the breach of legal duty?" Causation contains two important subparts. The first is "cause in fact." Cause in fact analyzes the practitioner's actions to determine if it were not for the breach of the legal duty, the injury would not have occurred. This element requires there be some direct link between the actions of the practitioner and the injury. In legal analysis of general causation, if it is determined that some other superseding event occurred between the breach of duty and the injury, the Court may determine the original practitioner is not liable for the damages as asserted by the plaintiff.

The second part of the causation element is "proximate cause," which is often referred to as legal cause. This sub-part is much more difficult to prove because it also involves the issue of foreseeability. Proximate cause is defined as "an act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred."3

Proximate cause is normally determined to be the primary cause of an asserted injury. It is not necessarily the closest cause in time or space to the injury, nor is it the first event that sets in motion a sequence of events leading to an injury. In summary, proximate cause generally produces particular, foreseeable consequences without the intervention of any unforeseeable or independent cause.

To make this element even more confusing, proximate cause of an injury sometimes requires a deeper legal analysis. Courts have devised the "but for" or "sine qua non" rule, which considers whether the injury would not have occurred "but for" the defendant's negligent act. If an injury would not have occurred but for a defendant's act, it may establish that the particular act or omission is the proximate cause of the harm. However, this does not necessarily establish clear liability since a variety of other factors can come into play in tort actions. Some jurisdictions may also use the "substantial factor" formula to determine proximate cause. This rule considers whether the defendant's action or inaction was a substantial factor in producing the harm. If the act was a substantial factor in bringing about the damage, then the defendant will be held liable unless he or she can raise a sufficient defense to refute the claims. For example, a nurse anesthetist administered an excessive dose of diazepam to an elderly patient waiting to go into the OR. After receiving the preoperative sedation, the patient was wheeled on a stretcher to the hallway outside the OR doors to await the procedure where the patient subsequently fell off the stretcher and fractured his hip. As a result, the patient brought a claim against the CRNA for the medication error asserting that he would not have fallen off the stretcher if he was not overmedicated with diazepan, and therefore he would not have fractured his hip. During litigation it was identified that the patient was left alone and the stretcher rail was left down by the transport personnel. Therefore, "but for" the rail not being placed back up, the patient would not have been injured. This action will likely "cut off" the liability for the fall as related to the administration of the diazepam, and the CRNA would likely win the case.

Damages

The last element of negligence is damages. Damages are proven when it is determined the injury was a result of the practitioner's actions. In civil cases, monetary damages are awarded when a plaintiff is successful against the practitioner for the injury suffered. The intent of awarding damages is to make the plaintiff whole, meaning as if the negligence never occurred.

There are essentially three types of civil damage awards:

Special damages

These are reimbursement payments for out-of-pocket expenses, including medical bills, legal charges, cost of repairing damaged or destroyed property, and loss of current and projected income.

General damages

These are reimbursement payments for damages that do not readily lend themselves to quantitative measurement, commonly known as "pain and suffering."

Punitive damages

These are reimbursement payments for damages due to gross negligence by a defendant.4 The amounts awarded to a successful plaintiff are determined by the jurisdictional limits and jury. That being said damage amounts vary widely by region across the county. Awards are usually much higher in metropolitan areas and much lower in rural communities, depending upon the type of injury and local socioeconomic culture.

Maintaining a high standard of practice

During the course of an average work day, APNs make critical decisions, perform skilled tasks, prescribe medications, and guide healthcare decisions. This article focused on the key elements of negligence and malpractice. When scope of practices are followed, keen assessment skills are utilized, evidence-based research is considered, and actions are properly performed and documented, APNs should never come across a professional negligence claim that is litigated successfully. As nurses, we should not practice defensively. We must always practice to the highest standard and stand true to our regulatory requirements. Knowledge is power and the more we know about our practice, the safer we are.

REFERENCES

1. Joint Commission on Accreditation of Healthcare Organizations. Sentinel Event Glossary of Terms [website]; 2003. http://www.jcaho.org/accredited+organizations/laboratory+services/sentinel+events/glossary.htm. [Context Link]

2. Goldberg J, Sebok A, Zipursky B. Tort Law, Responsibilities and Redress. 2nd ed. New York: Aspen Publishers; 2008. [Context Link]

3. West's Encyclopedia of American Law. 2nd ed. 2008 The Gale Group, Inc. Summary Report on the National Practitioner Data Bank. 2008. http://www.npdb-hipdb.hrsa.gov/resources/reports/NPDBSummaryReport.pdf [Context Link]

4. Glannon JW. The Law of Torts: Examples and Explanations. 4th ed. New York: Aspen Publishers; 2010. [Context Link]


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