Overview and Outcomes

Negligence and Malpractice as it Impacts The Advance Practice Nurse

In Unit 4, you will discuss medical malpractice and negligence as it impacts the advance practice nurse. In civil law, the burden of proof is on the plaintiff or person suing to prove their case. Malpractice and negligence suits are civil suits. In a malpractice or negligence case, the burden of proof is based on having four elements present. These four elements are duty, breach of duty, proximate cause, and damages (harm).

All four elements must be present to prove a case and for the plaintiff (patient or injured party) to win a monetary award.

As a nurse, you have a duty to provide safe care to your patients. If you fail in that duty or breach that duty and harm is caused to the patient, it is considered negligence or malpractice. The damages or harm must be a result of the breach of the duty - this is called proximate cause.

An example would be if a patient was given Aspirin (ASA) and the patient was allergic and went into anaphylactic shock and expired. The duty you owe is to provide safe care. The nurse breached this duty by not finding out that the patient had this allergy and administering ASA. The patient's death is the damages for wrongful death. The death resulted from the breach of duty so there is proximate cause.

Examples where not all four elements are present and would fail in a court of law are:

1. The patient is allergic to ASA. The nurse administers the ASA and the patient does not react. There are no damages. The lawsuit could not go forward as the damages element is missing.

2. The patient is allergic to ASA. The nurse administers the ASA and the patient dies from a heart attack several days later that is unrelated to the giving of ASA. There is no proximate cause. The heart attack was not the result of the breach of duty. The lawsuit could not go forward.

3. You pass a car accident on the side of the road. You do not stop to help. One of the victims dies. In this case, you do not have a legal duty to stop. You may have a moral duty, but in the law, there is not a duty to stop and render aide to an accident victim. Vermont is the only exception to this legal duty; you have a legal duty to stop and render aid. In the other states, there is no legal duty to stop.

Negligence and malpractice have the same elements necessary to prove a person liable. Malpractice is a professional person's negligence. The nursing assistant is not a professional so his or her acts would be negligence. The registered nurse is a professional so acts he or she commits during the performance of duties would be malpractice. Negligence is the doing or failing to do what a reasonably prudent person would or would not do under similar circumstances. Malpractice is a professional's negligence.

After completing this unit, you should be able to:

Evaluate the legal process and the effect it has on the scope of advanced nursing practice.
Discuss the legal and ethical implications of patient abandonment.
Analyze methods to prevent malpractice.