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Crit Care Nurse 2003 Oct; 23(5): 72-73
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Legal Counsel
Ruthe C. Ashley, RN, MSN, JD, answers your questions about legal and workplace issues in this column. Do you have a legal question you’d like to have answered? Call (800) 394-5995, ext. 8839; fax (949) 362-2049; mail Legal Counsel, CRITICAL CARE NURSE, 101 Columbia, Aliso Viejo, CA 92656; or e-mail your question to ccn{at}aacn.org.

Understanding Negligence

Ruth C. Ashley was a nurse for 15 years before becoming a lawyer. Her legal experience includes trial work in both large and small firms, in which she represents healthcare professionals in medical malpractice, employment, and licensing actions. She presents malpractice seminars to thousands of nurses every year across the nation.

To purchase reprints, contact The InnoVision Group, 101 Columbia, Aliso Viejo, CA 92656. Phone, (800) 809-2273 or (949) 362-2050 (ext 532); fax, (949) 362-2049; e-mail, reprints{at}aacn.org.

Q what legal standard is used when a nurse is sued for malpractice?

A When a nurse is sued for malpractice, he or she is being sued for "negligence." Defined in a nursing malpractice situation, negligence means the following:

The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.1

Lawyers call this principle the Ordinary Reasonable Prudent person rule, and it simply means that nurses are held to this "reasonable" standard. In addition, it is important to define "ordinary or reasonable" care:

That care which a person of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. You will note that the person whose conduct sets the standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.1

An individual can be sued for negligence without being a healthcare professional. For example, a person can be sued for negligence if he or she causes an injury to another person while operating a motor vehicle. Also, if a guest is injured on someone’s property, the property owner may be sued for negligence.

When a nurse has been named in a lawsuit for injuring a patient while he or she was on duty, such a lawsuit is for "negligence." Many times, it is also referred to as nursing malpractice because the nurse, in his or her role as a nurse, is accused of doing something that inflicted injury to a patient.

When a patient claims to be injured by malpractice on the part of the nurse, can that patient simply demand to be paid for those injuries? Not likely, unless the nurse fully agrees that his or her malpractice caused the injury. If there is total agreement on the cause of the injury and the damages that resulted, there is no lawsuit. A lawsuit is simply a means to resolve a dispute of the facts. The patient is alleging that the nurse caused an injury that resulted in certain damages. The nurse is defending those allegations.

In previous columns, we have already covered the process that a former patient, now a plaintiff, must follow. However, that process is used to ensure that all the facts and evidence are brought forth in a way so that a jury can make a decision at the end of a trial.

Certain elements of negligence need to be proven by the plaintiff, who has the burden of proof. In other words, the plaintiff has the responsibility for proving that the allegations are true as claimed. These are the elements of negligence that the plaintiff must show:

  1. The plaintiff must show that the nurse had a duty to the plaintiff.
  2. If the plaintiff can show that a duty existed, the plaintiff must define the appropriate standard of care.
  3. Once the standard of care is determined, the plaintiff must show that the nurse breached or violated that standard of care.
  4. Even if a breach is shown, the plaintiff must prove that this breach caused the plaintiff ’s injury.
  5. Once the plaintiff proves that the breach caused the injury, the plaintiff must prove that there are damages as a result of the breach.

The plaintiff must be able to prove each element by facts and evidence. If 1 element cannot be supported, it would be difficult for the plaintiff to prove his or her case. We will look at the specific elements of negligence in more detail in the next column.


Information appearing in Legal Counsel is for general purposes and is not intended to replace legal advice. For specific situations, consult your facility’s legal representation or a personal attorney.

 

Reference

  1. Black HC. Black’s Law Dictionary. 9th ed. St. Paul, Minn: West Publishing Company; 1998.



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Home page
 Crit Care NurseHome page
R. C. Ashley
The First Element of Negligence
Crit. Care Nurse, December 1, 2003; 23(6): 81 - 81.
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