Both Guilty and Not Guilty
think of celebrated cases where defendants have been tried in both civil and criminal courts.
What were the verdicts in both cases? if the verdicts were not the same, analyze why this happened. do you agree that taking away an individual’s personal liberty by incarceration should require a higher burden of proof than assessing for monetary damages?
Assignment: also complete a literature search to see if you can find cases where a nurse faced both civil and administrative charges. Were you able to find cases where the nurse was found guilty in a civil court but did not lose his or her license? did you find the opposite?
LEGAL DOCTRINES AND THE pRACTICE OF NURSING
Two important legal doctrines frequently guide all three courts in their decision making. The first of these, stare decisis, means to let the decision stand. Stare decisis uses precedents as a guide for decision making. This doctrine gives nurses insight into ways that the court has
previously fixed liability in given situations. However, the nurse must avoid two pitfalls in determining if stare decisis should apply to a given situation.
Precedent is often used as a guide for legal decision making.
The first is that the previous case must be within the jurisdiction of the court hearing the current case. For example, a previous Florida case decided by a state court does not set precedent for a Texas appellate court. Although the Texas court may model its decision after the Florida case, it is not compelled to do so. The lower courts in Texas, however, would rely on Texas appellate decisions.
The other pitfall is that the court hearing the current case can depart from the precedent and set a landmark decision. Landmark decisions generally occur because societal needs have changed, technology has become more advanced, or following the precedent would further harm an already injured person. Roe versus Wade, the 1973 landmark decision to allow a woman to seek and receive a legal abortion during the first two trimesters of pregnancy, is an example. Given the influence of politics and varying societal views about abortion, this precedent may change again in the future.
The second doctrine that guides courts in their decision making is res judicata, which means a “thing or matter settled by judgment.” It applies only when a competent court has decided a legal dispute and when no further appeals are possible. This doctrine keeps the same parties in the original lawsuit from retrying the same issues that were involved in the first lawsuit.
When using doctrines as a guide for nursing practice, the nurse must remember that all laws are fluid and subject to change. An example of changing law regarding professional nursing occurred in an Illinois Supreme Court case just over a decade ago when the law finally recognized nursing as an independent profession with its own unique body of knowledge. In this case (Sullivan versus Edward Hospital, 2004), the Illinois Supreme Court decided that physicians could not serve as expert witnesses regarding nursing standards (Find Law for Legal Professionals, 2013). This demonstrates how the law is ever evolving. Laws cannot be static; they must change to reflect the growing autonomy and responsibility desired by nurses. It is critical that all nurses be aware of and sensitive to rapidly changing laws and legislation that affect their practice. Nurses must also recognize that state laws may differ from federal laws and that legal guidelines for nursing practice in the organization may differ from state or federal guidelines.
Boundaries for practice are defined in the Nurse Practice Act of each state. These acts are general in most states to allow for some flexibility in the broad roles and varied situations in which nurses practice. Because this allows for some interpretation, many employers have established guidelines for nursing practice in their own organization. These guidelines regarding scope of practice cannot, however, exceed the requirements of the state Nursing Practice Acts. Managers need to be aware of their organization’s specific practice interpretations and ensure that subordinates are aware of the same and follow established practices. All nurses must understand the legal controls for nursing practice in their state.
pROFESSIONAL NEGLIGENCE
Historically, physicians were the health-care providers most likely to be held liable for nursing care. As nurses have gained authority, autonomy, and accountability, they have assumed responsibility, accountability, and liability for their own practice. As roles have expanded, nurses have begun performing duties traditionally reserved for medical practice.
As a result of an increased scope of practice, many nurses now carry individual malpractice insurance. This is a double-edged sword. Nurses need malpractice insurance in basic practice
as well as in expanded practice roles. They do incur a greater likelihood of being sued, however, if they have malpractice insurance, since injured parties will always seek damages from as many individuals with financial resources as possible.
In addition, some nurses count on their employer-provided professional liability policies to protect them from malpractice claims, but such policies often have limitations. For example, employers may not provide coverage once an employee has terminated their employment, even if the situation which led to the complaint occurred while the nurse was employed there and some employer-provided policies have inadequate limits of liability for the individual employee. Nurses then are advised to obtain their own personal liability policy.
Unfortunately, both the enhanced role of nurses and the increase in the number of insured nurses have led to a great increase in the number of liability suits seeking damages from nurses as individuals over the past few decades. In particular, malpractice has become of great concern to advanced practice nurses such as nurse practitioners and nurse midwives. Nurse practitioners are not only paying high costs for their insurance premiums, they generally are subject to strict professional liability (malpractice) insurance requirements.
Elements of Malpractice
All liability suits involve a plaintiff and a defendant. In malpractice cases, the plaintiff is the injured party and the defendant is the professional who is alleged to have caused the injury. Negligence is the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do—or as doing something that a reasonable and prudent person would not do. Reasonable and prudent generally means the average judgment, foresight, intelligence, and skill that would be expected of a person with similar training and experience. Malpractice—the failure of a person with professional training to act in a reasonable and prudent manner—also is called professional negligence.
Five elements must be present for a professional to be held liable for malpractice (Table 5.3).
First, a standard of care must have been established that outlines the level or degree of quality considered adequate by a given profession. Standards of care outline the duties a defendant has to a plaintiff or a nurse to a client. These standards represent the skills and learning commonly possessed by members of the profession and generally are the minimal requirements that define an acceptable level of care. Standards of care, which guarantee clients safe nursing care, include organizational policy and procedure statements, job descriptions, and student guidelines.
TABLE 5.3 Components of Professional Negligence
Elements of Liability Explanation Example: Giving Medications
1. duty to use due care (defined by the standard of care)
the care that should be given under the circumstances (what the reasonably prudent nurse would have done)
a nurse should give medications accurately, completely, and on time 2. Failure to meet standard
of care (breach of duty)
Not giving the care that should be given under the circumstances
a nurse fails to give medications accurately, completely, or on time 3. Foreseeability of harm the nurse must have reasonable access
to information about whether the possibility of harm exists
the drug handbook specifies that the wrong dosage or route may cause injury 4. a direct relationship
between failure to meet the standard of care (breach) and injury can be proved
patient is harmed because proper care is not given
Wrong dosage causes the patient to have a convulsion
5. injury actual harm results to the patient convulsion or other serious complication occurs
Second, after the standard of care has been established, it must be shown that the standard was violated—there must have been a breach of duty. This breach is shown by calling other nurses who practice in the same specialty area as the defendant to testify as expert witnesses.
Third, the nurse must have had the knowledge or availability of information that not meeting the standard of care could result in harm. This is called foreseeability of harm. If the average, reasonable person in the defendant’s position could have anticipated the plaintiff’s injury as a result of his or her actions, then the plaintiff’s injury was foreseeable. Ignorance is not an excuse, but lack of information may have a negative effect on the ability to foresee harm.
Being ignorant is not a justifiable excuse, but not having all the information in a situation may impede one’s ability to foresee harm.
For example, a charge nurse assigns another registered nurse (RN) to care for a critically ill patient. The assigned RN makes a medication error that injures the patient in some way. If the charge nurse had reason to believe that the RN was incapable of adequately caring for the patient or failed to provide adequate supervision, foreseeability of harm is apparent, and the charge nurse also could be held liable. If the charge nurse was available as needed and had good reason to believe that the RN was fully capable, he or she would probably not be held liable.
A number of malpractice cases have hinged on whether the nurse was persistent enough in attempting to notify health-care providers of changes in a patient’s conditions or to convince the providers of the seriousness of a patient’s condition. Because the nurse has foreseeability of harm in these situations, the nurse who is not persistent can be held liable for failure to intervene because the intervention was below what was expected of him or her as a patient advocate.
The fourth element is that failure to meet the standard of care must have the potential to injure the patient. There must be a provable correlation between improper care and injury to the patient.
The final element is that actual patient injury must occur. This injury must be more than transitory. The plaintiff must show that the action of the defendant directly caused the injury and that the injury would not have occurred without the defendant’s actions. It is important to remember here, however, that not taking action is an action.