Nursing Liability and Nursing Malpractice – Part 2

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In this blog I discuss the concept of nursing malpractice. It is the second blog of my two-part series. To read part one, click here.

The Duty of Reasonable Care.

The plaintiff must first show that the nurse had a duty to provide care for the plaintiff. The element of duty is usually straightforward and relatively easy for the plaintiff to prove because once nurses undertake care for their patients they have a clear duty to provide care for that patient in a competent and reasonable manner. Nurses owe a clear duty of care to all of their patients.

Breach of Duty.

When applied to nursing, a breach of a duty occurs when a nurse does, or does not do, what a reasonable nurse would have done under the same, or similar, circumstances. This would mean that the nurse’s care fell below the acceptable standard of care.
The standard of care is a legal concept which reflects how a nurse is expected to act professionally. It incorporates the expectation that nurses conduct themselves with the degree of care, skill and knowledge that reasonably competent nurses would exhibit in a similar situation. It is important to remember that the standard represents a minimum level of practice to which nurses must adhere in order to avoid being found negligent. In other words, nurses do not have to exert heroic efforts to perform their job satisfactorily; they are expected to exercise their good judgment, education and training to the best of their ability, under the circumstances. Nursing care that falls below the acceptable standard of care may result in a medical malpractice lawsuit against the nurse. The standard of care is particular to each field of nursing practice. For instance, orthopedic nurses determine the standard of care for orthopedic nurses.

Injury or Damage.

To prove the element of injury the plaintiff must be able to establish that, in addition to pain and suffering, they have experienced a physical injury, lost money or have an actual reduction in the quality of their life. The injury which the plaintiff suffered will help to determine the monetary damages that will be awarded if the plaintiff succeeds at trial.

Causation.

Causation is often the most difficult element of medical malpractice to prove. In order to prove that the defendant caused their injury, loss or harm, the plaintiff must show that the defendant’s act or omission either caused, or was a substantial factor in causing, harm to the plaintiff. If the defendant proves that the harm would have occurred anyway, irrespective of the defendant’s act or omission, then the negligence action will fail for lack of causation.

Sources for the Standard of Care.

Where do nursing standards come from, and who decides what the standard of nursing care should be in each particular medical malpractice case? The answer is that the sources for nursing practice standards are varied. The court relies on some or all of theses sources to help determine the applicable standard of care in each individual case.
Some of these sources for nursing standards include:

1. Florida Nurse Practice Act, Chapter 464, Florida Statutes;
2. Other Florida Statutes and the Florida Administrative Code;
3. Case law;
4. Principles, guidelines and standards of professional associations such as the American Nursing Association (ANA);
5. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO);
6. Hospital Policies;
7. Standards of Care as testified to by other members of the profession; and
8. Authoritative Nursing Texts and Journals.


Nurse’s Accountability for the Standard of Care.

As a licensed nurse, you are expected to know what the generally accepted standard of care entails and follow that general standard in your daily practice. The policy and procedure manual of your facility should contain nursing care guidelines. However, if the facility you are working in does not adhere or comply with the generally accepted standard of nursing care, then, following the facility’s policies and procedures will not protect you from a charge of malpractice. This is because all nurses are accountable for the nurse’s standard of care. If you are aware that your facility’s policies and procedures are below the generally accepted standard of care, then you should promptly notify your nurse-manager or the risk-control committee of your concerns.

Conclusion.

Over the years nurses are becoming ever more likely targets for plaintiffs, and their attorneys, in medical malpractice cases. It is extremely important for a nurse to know the malpractice laws that encompass the nursing profession. By knowing each element of medical malpractice and the different standards of care that a nurse is held to. A nurse who can adhere to the different standards of care can avoid being held liable for medical malpractice.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

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