There are two types of torts: an unintentional tort or wrong and an intentional tort. An unintentional tort is an unin- tended wrong against another person. The two most com- mon unintentional torts are negligence and malpractice.
Negligence is defined as the failure to act in a rea- sonable and prudent manner. The claim of negligence is based on the accepted principle that everyone is expected to conduct themselves in a reasonable and pru- dent fashion. This is true of laypersons, student nurses, and licensed professionals. A more formal definition of negligence is the failure of a person to use the care that a reasonably prudent and careful person would use under similar circumstances (Griffith and Tengnah, 2008).
Malpractice is a special type of negligence (i.e., the failure of a professional, a person with specialized edu- cation and training, to act in a reasonable and prudent manner) (Iyer and Levin, 2007). As state NPAs have evolved to reflect the increasing professionalism of RNs, courts have begun to recognize the negligent acts of nurses as malpractice. Evidence of this change in TABLE 8-2 EXAMPLES OF JOURNALS
DEDICATED TO LEGAL ISSUES IN NURSING PRACTICE
JOURNAL PUBLISHER
Nursing Law’s Regan Report (formerly Regan Report on Nursing Law)
Medica Press, Providence, RI Journal of Nursing Law KRM Information Ser-
vices, Eau Claire, WI Legal Eagle Eye Newsletter
for the Nursing Professions
Legal Eagle Eye News- letter, Seattle, WA Journal of Legal Nurse
Consulting
American Association of Legal Nurse Con- sultants, Glenview, IL JONA’s Healthcare Law,
Ethics and Regulation
Lippincott Williams &
Wilkins, Philadelphia, PA
135 CHAPTER 8 Legal Issues in Nursing and Health Care
perceptions is apparent in the increasing use of RNs as expert witnesses in malpractice cases.
In general, expert testimony is not needed in cases of
“simple negligence,” when the actions of the defendant are so obviously careless that even a layperson would recognize the conduct as negligent. In contrast, if the jury does not possess the special knowledge and infor- mation that professionals ordinarily have, an expert witness is required to establish whether the person breached the expected standard of care. In this case, the breach in duty is not simple negligence but malpractice.
Elements Essential to Prove Negligence or Malpractice
Although any patient (or surviving family member, in the case of a patient death) may sue the nurse and his or her employer, the following elements must be proved for the plaintiff to succeed in the case.
1. The nurse owed the patient or client a special duty of care based on the establishment of a nurse-patient
relationship. When the nurse accepts a patient assign- ment, it establishes the relationship and requires the nurse to meet his or her duty to the patient. The duty of the nurse is to possess the knowledge and skill that a reasonable and prudent nurse would pos- sess and exercise in the same or similar patient care situation. The duty of the nurse as described is the standard of care. A nurse-patient relationship also may be established through telephone communica- tion in the case of a nurse who performs telephone triage and advice or via computer or audiovisual systems that are being introduced in some health care settings (American Academy of Ambulatory Care Nursing, 2011; American Telemedicine Asso- ciation, 2008).
2. The nurse has breached his or her duty to the patient or client. Evidence is presented that proves the nurse breached the standard of care. The standard of care is derived from a multiplicity of sources; these are described in Box 8-3.
BOX 8-3 SOURCES THAT CONTRIBUTE TO THE STANDARD OF NURSING CARE
Federal Laws
Emergency Medical Treatment and Active Labor Law Americans with Disabilities Act
Patient Self-Determination Act Occupational Health and Safety Act
The Patient Safety and Quality Improvement Act Federal Administrative Rules and Regulations Rules and regulations for participation in Medicare Federal Agencies
U.S. Food and Drug Administration
Agency for Healthcare Research and Quality clinical guidelines
National Institutes of Health publications
Centers for Disease Control and Prevention publications (Morbidity and Mortality Weekly Report)
State Statutes Nurse practice acts State reporting statutes
• Child abuse/elder abuse reporting statutes
• Domestic violence reporting statutes
• Health facility licensing laws
State Administrative Rules and Regulations Licensing board rules
Board of Nursing
Position statements and advisories Nursing Case Law
Appellate court decisions Professional Organizations Standards and guidelines for practice Nursing journals
Position statements
Technical bulletins and practice resources Code of ethics
Manufacturer Guidelines Durable medical equipment Drugs and solutions
Disposable equipment and supplies Agency Policies and Procedures Job descriptions
Agency-specific documents Nursing care plans
Care maps or critical pathways
Unit- or department-based standards of practice Medical bylaws
136 UNIT 2 Current Issues in Health Care 3. Actual harm or damage is suffered by the patient.
4. There is proximate cause or a causal connection between the breach in the standard of care by the nurse and the patient’s injury.
• No intervening event is responsible for the injury.
• A direct cause and effect can be demonstrated.
• In some jurisdictions, the nurse’s breach in duty must only be proven to be a substantial cause of the patient’s injury.
This last element merits further discussion. The rela- tionship between the nurse’s breach in the standard of care and the patient’s injury must be established by the plaintiff. To prove proximate cause, there must be a direct causal link. For example, a patient reports that he has an allergy to penicillin and wears a MedicAlert bracelet to that effect. A physician orders penicillin to treat the patient’s infection. The nurse fails to check or ask the patient about allergies. The nurse administers the penicillin, and the patient suffers an anaphylactic reaction and dies. There is a direct connection between the nurse’s actions and the patient’s death. Proximate cause has been established.
One may ask what the physician’s liability is in this case. The physician also owes a duty to the patient and may be found negligent for ordering penicillin, if he or she had knowledge of or should have had knowledge of the allergy. However, even in the case of a physician’s negligence—“I knew about the penicillin allergy, but forgot”—the nurse has a separate and independent duty to the patient to prevent harm. The nurse must review the patient’s medical record for information about allergies, ask the patient about allergies, and check the patient’s identification band before administering a drug.
In some jurisdictions, it only is necessary to prove that the nurse’s actions were a substantial cause of the injury or harm to prove negligence. For example, in a large teaching hospital, a nurse notes a significant change in a patient’s vital signs, suggesting deterioration in his con- dition. A first-year resident is called to the bedside and made aware of the patient’s status. The resident orders the nurse to simply continue observing the patient. The first-year resident remains immediately available in the unit and receives repeated reports of a continued decline in the patient’s condition. There is a clear chain of com- mand policy established in the hospital, which takes into account varying levels of skill and expertise of the residents in training. There is also a chain of command
policy to deal with unresolved disagreements between health care professionals and nonresponsive providers.
Despite the existence of these policies, the nurse does not activate the chain of command.
The patient suffers hypovolemic shock caused by internal bleeding, and this leads to permanent anoxic brain damage. In this case, the nurse’s failure to obtain additional medical advice and consultation (a senior resident was physically present and available in the hospital) was a substantial cause of the patient’s injury.
These two examples illustrate that negligence may con- stitute a commission (inappropriate penicillin adminis- tration) or an omission (failure to activate the chain of command) in care.
Negligence and the Doctrine of Res Ipsa Loquitur In the majority of cases, a plaintiff must retain a nurse expert witness because the jury does not ordinarily pos- sess the scientific and technologic knowledge necessary to determine the required standard of care. When the negligent act clearly lies within the range of a jury’s common knowledge and experience, the doctrine of res ipsa loquitur (“the thing speaks for itself”) may be applied. For example, recent studies have confirmed that approximately 1000 to 2500 foreign bodies (instru- ments, needles, surgical sponges) are inadvertently left in a patient’s body following surgery each year, result- ing in approximately $42,000 in additional care costs ( Educational Review Systems, 2008; Shah and Lander, 2009). Leaving a surgical instrument in the patient’s body after an operation is one case in which the doctrine of res ipsa loquitur may apply. It would be obvious to any layperson that it is below that standard of care not to remove a surgical instrument.
Dickerson v. Fatehi (1997) illustrates this point.
A woman who underwent neck surgery experienced severe pain in her right arm, hand, and neck after the procedure. Approximately 20 months later, a second surgery was performed to determine the cause of the patient’s continued pain. An 18-gauge hypodermic needle with a plastic attachment for a syringe was dis- covered in her neck and removed. The woman sued the surgeon and nurses involved in the original surgi- cal procedure. The claims against the nurses included a failure to maintain a proper needle count and a failure to ensure the removal of the needle after surgery. The court hearing this case dismissed the suit. On appeal, the Supreme Court of Virginia reversed the lower court’s
137 CHAPTER 8 Legal Issues in Nursing and Health Care
decision and directed the case for trial. The Supreme Court held that in this particular case expert testimony was not necessary to establish the applicable standard of care and that the doctrine of res ipsa loquitur applied. A jury would be able to determine whether a reasonably prudent circulating nurse and scrub nurse should have made and reported an accurate needle count.
Gross Negligence
In some cases, the negligent act of the nurse is so reck- less and reflects such a conscious disregard for the patient’s welfare that it represents gross negligence.
When the nurse acts with complete indifference to the consequences for his or her patient, the court may award special damages meant to punish the nurse for the outrageous conduct. These damages are referred to as punitive damages. Each state has established standards to determine when punitive damages may be awarded.
In Mobile Infirmary Medical Center v. Hodgen (2003), the jury awarded $2.5 million in punitive damages (later reduced to $1.5 million) when a new graduate, not yet licensed, administered five times the ordered dose of digoxin. The jury found that the new graduate had been improperly supervised by the novice nurse assigned as her preceptor by the shift charge nurse. The charge nurse was also found liable for failing to properly direct the preceptor in her role responsibilities. The Supreme Court of Alabama found, among other things, that the nurses acted callously and wantonly, the legal threshold that must be crossed before punitive damages can be awarded (Snyder, 2003b).
Another landmark case is Stogsdill v. Healthmark Partners, L.L.C. (2004). A resident of a nursing home died as a consequence of multiorgan system failure sec- ondary to sepsis from a ruptured bowel. The nursing home staff had failed to promptly report the patient’s failure to have a bowel movement or complaints of severe abdominal pain and abdominal swelling. The nursing home staff also failed to follow the physician’s standing orders to provide appropriate therapy for constipation, including enemas and milk of magnesia.
When a family member expressed concern about the resident’s severe constipation and abdominal pain, a nurse told the relative that they did not call the physi- cian every time “somebody gets a bellyache.” The jury awarded $500,000 in compensatory damages and $5 million in punitive damages. The U.S. Circuit Court of Appeals for the Eighth Circuit ruled that the nurses’
conduct was so outrageous that punitive damages were appropriate (Tammelleo, 2004a).
Claims of Negligence and Student Nurses
Claims of negligence may arise when student nurses pro- vide care. The emphasis on patient safety and reporting preventable adverse outcomes has brought an increas- ing number of student errors to light (Institute for Safe Medication Practices [ISMP], 2007; Mahlmeister, 2008; Wolf et al, 2009). Because the student is not yet a licensed professional, the faculty member or licensed nurse who is supervising the student is often named in the lawsuit (Brooke, 2009). The state board of nursing may have an advisory or position statement regarding the scope of practice of nursing students and the duty of the supervising registered nurse supervising the student to maintain the appropriate level of oversight. Such is the case in California, where the Board of Nursing has promulgated a position statement, “Clinical learning experiences: Nursing students” to guide the supervis- ing nurse in her duty (2008). The agency or hospital in which the student is practicing also may be named under the legal doctrine of vicarious liability. Dimora v. Cleveland Clinic Foundation (1996) is a case in point.
A student nurse was assigned to care for a patient who had serious difficulty with maintaining her balance and required close supervision when standing, walking, and transferring. The student nurse testified that she knew the patient had an unsteady gait, but still left her unat- tended on a commode. The patient fell and was injured.
The hospital was named in the lawsuit and appealed, claiming the student was not an employee. The Ohio Court of Appeals ruled that a hospital was held to the same legal standard of care for a student nurse’s error as for the same error committed by a licensed professional nurse.
Several recent cases reinforce the importance of informing the patient that a student is providing the care, and documenting that he or she agrees to the care. In Lovett v. Lorain Community Hospital (2004), a student nurse, under the direct supervision of an instructor, administered Demerol and Vistaril by the intramuscular route and punctured the sciatic nerve.
The patient sued the hospital for negligence. A lower court dismissed the initial lawsuit because the student and the instructor were not employees of the hospital.
The Ohio Court of Appeals reversed the lower court’s decision. The higher court affirmed that a patient may
138 UNIT 2 Current Issues in Health Care assume that the care he or she receives in a hospital is provided by that institution. The patient can assume that the student and instructor are agents of the hos- pital, unless the patient has been specifically informed and has agreed to receive care from the student (Snyder, 2004b). In a case involving an RN training to become a certified registered nurse anesthetist (CRNA), the court again affirmed the fundamental right of the patient to give informed consent when a student is providing the care. The student CRNA accidentally tore the patient’s esophagus while performing a tracheal intubation (Luettke v. St. Vincent Mercy Medical Center, 2006). The legal standard of care requires patients to be informed of the identities of persons providing care and treatment and to be told who will be supervising a student.
Because a student nurse is not yet a licensed profes- sional, if a lawsuit is filed the alleged claim is usually
“ordinary negligence” rather than “professional mal- practice.” In one case, however, the Michigan Court of Appeals permitted a claim of professional malpractice when a student nurse committed a medication error resulting in the patient’s death (Dennis v. Specialty Select Hospital—Flint, 2005). In this case, a physician ordered an oral antifungal agent (Nystatin). The student nurse erroneously administered the drug intravenously. The patient died shortly thereafter. The court ruled, among other things, that the student should have possessed the requisite knowledge and clinical judgment to adminis- ter the drug safely. The actions of the student were not
“ordinary negligence,” but “professional malpractice”
(Tammelleo, 2005). The court also ruled that both the student nurse and the hospital in which the patient death occurred could be subjected to the claim for malpractice.
Criminal Negligence
Criminal negligence represents a case in which the neg- ligent acts of the nurse (normally an unintentional civil wrong) also constitute a crime. In most states, a nurse can be prosecuted when the conduct is deemed so reck- less that the action results in serious harm or death to the patient. In 1997, two RNs and an advanced practice nurse licensed in Colorado were charged with criminal negligent homicide in the death of a newborn resulting from a medication error (Kowalski and Horner, 1998).
In this case, an oil-based form of penicillin was errone- ously administered to the infant. The drug was admin- istered at 10 times the physician’s prescribed dose. This
case is detailed in a 1998 article by Kowalski and Horner titled “A Legal Nightmare: Denver Nurses Indicted” (see References). A more recent case occurred in Wisconsin in 2006 when a labor and delivery nurse inadvertently administered a piggyback solution bag of epidural anes- thesia through a peripheral intravenous line. The patient, a 16-year-old woman, experienced cardiovascular col- lapse and died. The error was compounded by a failure to place an identification band on the patient and to use the available point of care bar coding system. In the root cause analysis of this sentinel event conducted at a later date, “multiple latent systems failures” were also identi- fied (Smetzer et al, 2010). The Wisconsin Department of Justice charged the nurse with a felony criminal offense.
The charge was eventually reduced to a misdemeanor count of illegally administering prescription medica- tions. The Wisconsin Department of Health and Human Services imposed restriction on the nurse’s ability to par- ticipate in any capacity in a facility funded by Medicare and Medicare programs for five years. The Wisconsin Department of Regulation and Licensing suspended the nurse’s license for nine months, and the hospital termi- nated her employment. In response to the Wisconsin case, the ANA released a statement opposing charges of criminal misconduct when a registered nurse did not intentionally mean to harm the patient (ANA, 2007).
These two cases should be read by every student nurse and licensed nurse in order to fully appreciate the change in the legal climate in the United States. They reflect the changing perspective of our justice system when negligent acts of health care professionals result in patient death. In the event of an unanticipated patient death, it is more likely that the conduct of basic as well as advanced practice nurses will be scrutinized by the criminal justice system (Iyer and Levin, 2007). This shift may in part be a result of the public’s increasing awareness of the magnitude of error in health care. It also may stem from consumer demands for greater accountability by health care systems and workers when injury or death occurs. Conservative estimates pub- lished by the Institutes of Medicine in 2000 suggested that as many as 98,000 patients die each year as a result of the negligence and malpractice of health care provid- ers (IOM, 2000), and another 90,000 deaths per year are attributed to hospital-acquired infections (CMS, 2011).
National data regarding hospital-acquired infections may be accessed at the Centers for Disease Control and Prevention’s National Healthcare Safety Network