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Crit Care Nurse 2003 Dec; 23(6): 81
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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.

The First Element of Negligence

Ruthe 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 is the nurse’s duty to the patient?

A The duty of a trained nursing professional is to have the knowledge ordinarily possessed and to exercise the care and skill ordinarily used in similar situations by trained and skilled members of the nursing profession practicing in the same or similar locality and under similar circumstances.1 Consequently, your duty as a nurse is simply to practice your profession as any ordinary, reasonable, and prudent nurse would do. The terms same and similar locality mean that when a nurse is on trial, the standard used to define his or her duty in a specific situation will be the same or similar situation. If you are a CCRN employed by a large metropolitan medical center with many resources, the standard you will have to meet will be that of a CCRN employed in a similar locality (a large metropolitan medical center with many resources). Likewise, the term similar circumstances means that a nurse on trial will be held to the duty of a nurse in similar circumstances as those during which the alleged injuries took place.

These standards for nurses on trial are defined with the help of expert witnesses. For a CCRN nurse in a large metropolitan medical center who is on trial, expert witnesses for both the plaintiff and the defendant nurse will be used to define his or her duties, scope of practice, and standards. In this case, an expert witness would be a CCRN nurse or a cardiologist who has firsthand knowledge of the nurse’s duty.

When do nurses have this duty? Are you "on duty" 24 hours a day, whether you are working or not? The answer is, not necessarily. When you are within the scope of employment, there is no question about your duty to the patient. As soon as you accept the patient assignment, you have a duty to that patient. This nurse-patient relationship lasts for as long as you are within the scope of employment, and ends when another nurse takes over the responsibility for the patient.

However, you are a nurse 24 hours a day, and it is possible to form this nurse-patient relationship voluntarily beyond the scope of employment. In an earlier column,2 we discussed your legal liability in connection with when you are not on the job and you voluntarily form this relationship. In short, any time you act as a nurse or pick up the nursing role beyond the scope of employment, you voluntarily form the nurse-patient relationship. It is important to realize that even though you responded to your professional and ethical duty to act as a nurse, you also picked up the legal liability associated with your nursing practice. In order to protect yourself, it is important to have your own individual malpractice insurance that provides coverage for you at all times whether you are on or off the job.


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.

 

References

  1. Ashley R. Legal counsel: understanding negligence. Crit Care Nurse. October 2003;23:72–73.[Free Full Text]
  2. Ashley R. Legal counsel. Crit Care Nurse. April 2002;22:128–129.




This Article
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Right arrow Alert me when this article is cited
Right arrow Alert me when eLetters are posted
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Right arrow Articles by Ashley, R. C.
Right arrow Search for Related Content
PubMed
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Right arrow Articles by Ashley, R. C.

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