Medical Malpractice 1

Running head: MEDICAL MALPRACTICE ARE NOT RESERVE

Medical Malpractice Are Not Reserved for Only Doctors Anymore

Jeanne Benfante

San Diego City College

School Of Nursing
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Medical Malpractice Are Not Reserved for Only Doctors Anymore

Historically, when one thinks of medical malpractice lawsuits, one thinks of a physician.

Not so anymore. As nurses’ roles has progress from a passive and subservient role to an

assertive and independent role, according to Weld and Bibb (2009) “registered nurses have more

professional accountability than at any other time in the history of nursing. As a result, nurses

must confront the fact that they now owe a higher duty of care to their patient, and by extension,

are more exposed to civil claims for negligence than ever before” (p.2). In other words, as

“nurses responsibilities are continually expanding to include more risk and more patient contact

without a physician present…This expansion increases the likelihood of lawsuits against non-

physician health care providers.” (Krapp & Cengage, 2006, “Malpractice,” p.1).

A nurse can be charged with negligence as a consequence of any action or failure

to act that causes injury to a patient which can be defined as malpractice. Krapp and Cengage

(2006) illustrate that legally, “malpractice is classified as tort, which is a wrongful act resulting

in injury to another’s person, property, or reputation.” To be charge with tort, there must be four

elements: Duty of care towards others, failure to exercise due care, causation of injury, and

injury (p.1).

Case Study

A surgical nurse working at George Hospital and at 1600 she received a patient from the

recovery room who has had a totally hip replacement. She notes that the hip dressing are

saturated with bright red blood, but she is aware that total hip replacements frequently have some

post operative oozing for the wound. There is an order on the chart to reinforce the dressing PRN
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and she does so but when she checks it at 1800, she finds that the reinforcements is saturated as

well as drainage on the bed linen. The nurse calls the physician and tells that she believes the

patient “is bleeding too heavily” but the physician reassures her the amount of bleeding

described is not excessive and to continue to monitor the patient closely. The nurse rechecks the

patient’s dressing at 1900 and 2000. Again, the nurse calls the physician and tells him “the

bleeding still looks to heavy.” He reiterates his reassurance and continues to tell the nurse to

monitor the patient closely. At 2200, the patient’s blood pressure drops precipitously and she

goes into shock. The nurse summons the physician, who arrives immediately. This case study

clearly shows a communication breakdown between nurse and physician, also a dismissive

attitude by the physician toward the nurse but does it have the four elements to hold the nurse

liable for malpractice?

Legal Ramifications

It is important to understand that nurses have a legal and moral duty to advocate for the

patient at all cost. According to Board of Registered Nursing in California explains the scope of

RN practice under independent functions “subsection (B) (1) of section 2725 authorizes direct

and indirect patient care services that insure the safety, comfort, personal hygiene and protection

of patients, and the performance of disease prevention and restorative measures. Indirect services

include delegation and supervision of patient care activities performed by subordinates.” In this

case study, the nurse did not practice indirect patient care to insure the patient safety and

protection.

The next issue is to understand that negligence by a nurse which is defined by The Joint

Commissions on Accreditation of Healthcare Organization (JCAHO):

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“failure to use such care as a reasonably prudent and careful person would use under

similar circumstances” and malpractice as “improper or unethical conduct or

unreasonable lack of skill by a holder of a professional or official position; often applied

to physician, dentists, lawyers, and public officers to denote negligence or unskilled

performance of duties when professional skills are obligatory and malpractice is a cause

of action for which damages are allowed” (Ferrell, 2007, “Malpractice vs Negligence,” p.

63).

According to Nursing Malpractice: Sidestepping legal minefields (as cited in Ferrell, 2007)

“Malpractice refers to a tort committed by a professional acting in his professional capacity” (p.

63). Ferrell (2007) further illustrate that the law differentiate between intentional and

unintentional torts. Unintentional torts that results from negligence by the nurse which the

plaintiff prove each of the following: (1) Duty to standard of care, (2) the defendant breach this

duty, (3) there was harm to the plaintiff, and (4) the breach of duty caused harm to the defendant

(p. 63). In contrast, “an intentional tort is a deliberate invasion of someone’s legal rights. In a

malpractice case involving an intentional tort, the plaintiff doesn’t need to prove that you owed

him a duty. The duty…is defined by law, and you presumed to owe him this duty” (Ferrell, 2007,

p.63).

Malpractice Liability

According to A. Luu (personal communication, January, 31, 2010), who is a Registered

Nurse and Malpractice Attorney, the legal consequence of this case study is that the nurse’s

negligence that led to the failure to communicate properly and failure to seek a higher chain of

command for treatment that could have prevented the patient from going into shock would hold

the nurse liable for medical malpractice. A. Luu further explains that these will be the key issues
 Medical Malpractice 5

that a defense attorney will focus on and expect answers as to “(1) why SBAR, which is a form

of communication between doctors and nurses, was not used, and (2) why she did not use

hospital protocol and procedures to go through the chain of commands for treatment because the

fact that she called the physician four different times shows that she knew the patient’s bleeding

was abnormal and the physician decision to keep monitoring was a poor assessment and

consequently could cause harm to the patient.” According to Sirota (2007), “poor communication

between nurses and physicians was the most important factor causing dissatisfaction with

nurse/physician working relationship in the nursing91 survey, and it continues to be cited as the

most significant issue in the current literature” (p. 54). Furthermore, JCAHO reported that

communication breakdown during patient hand-over cause 70% of 2,455 reported sentinel

events, 75% of that caused patients death (Sirota, 2007, p. 54).

To prove malpractice in this case the four elements must be established which are: duty,

breach of duty, causation, and injury. First element is duty which involves the nurse giving care

to a patient that is established in the standard of nursing care guidelines that is set forth by the

nurses practice act of a particular state and JCAHO (Krapp & Cengage, 2006). In this case the

nurse has a legal duty to give prudent care for this patient. Second element is a breach of that

duty, in other words, failure to meet that duty that is set forth by JCAHO and the nurses practice

act (Krapp & Cengage, 2006). There are two actions the nurse had failed to meet the duty of care

for this patient by 1) not exerting assertive communication to the physician of the fact that the

bleeding was too excessive for normal conditions of a post operative procedure and 2) the nurse

should have followed hospital protocol to go through the chain of command and contact the

doctor on duty for a further assessment. The third element is to prove causation which is

“negligence directly caused injury or harm to the patient” (Krapp & Cengage, 2006). Again, the
 Medical Malpractice 6

nurse neglected to use hospital protocol to go through the chain of command to protect the

patient safety. Lastly, the fourth element is verifying that harm and injury occurred and in this

case the patient went into shock which could have been prevented had the nurse acted on her

instincts and pursued it further.

Intervention and Strategies for Prevention

The American Journal of Critical Care (AJCC, 2010) reports that “each day, thousands of

medical errors harm the patients and families served by the American healthcare system because

work environments that tolerate ineffective interpersonal relationships and do not support

education to acquire necessary skills perpetuate unacceptable conditions” (p. 188). In other

words, co-worker who do not work together as a team and hospitals that doesn’t try to eradicate

the problems through education can lead to medical errors that put patient’s lives in jeopardy.

The AJCC has developed a synergy model for patient care that creates a: safe, healing, humane,

and respectful of the rights, responsibilities, needs, and contributions of all people—including

patients, their families, and nurses (AJCC, 2010, p. 188). There are six standards according to

AJCC (2010) that are used to maintain a healthy work environment; “these standards represent

evidence-based and relationship-centered principles of professional performance” (p. 188). The

six standards are: skilled communication, true collaboration, effective decision making,

appropriate staffing, meaningful recognition, authentic leadership.

1. Skilled communication is that nurses must be as proficient in communication

skills as they are in clinical skills (AJCC, 2010), meaning, to be able to provide

safety and excellence requires that nurses and other healthcare providers make it a

priority to expand their professional communication skills including written,

spoken and nonverbal (p. 190).

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2. True collaboration is that a nurse must be relentless in pursuing and fostering true

collaboration. AJCC (2010) reports that “Nearly 90% of the American

Association of Critical Care Nurses’ members and constituents report that

collaboration with physicians and administrators is among the most important

elements in creating a healthy work environment” (p. 191).

3. Effective decision making is need by nurses to fulfill their roles as advocates and

nurses must be involved in patient care (p. 192)

4. Appropriate staffing is needed to ensure patient safety and to the wellbeing of

nurses. Staffing must ensure the effective match between patient needs and nurse

competencies (p. 192)

5. Meaningful recognition meaning that nurses needs to be recognized and must

recognize others for the value each brings to the work of the organization (p. 192)

6. Authentic Leadership requires nurses to demonstrate an understanding of the

requirements and dynamics at the point of care and within the context

successfully translate the vision of healthy work environment (p. 193).

Conclusion

Nurses are in the front lines with patient care. They are with the patient longer than any

other member of the healthcare team, and the patient also knows this so they put a lot of trust in

their nurses; so nurses needs to recognize that they are the patient’s advocates first and by that,

they need to ensure the patient’s safety is their first priority. In this case, the nurse was in an

ethical dilemma and made a bad judgment by trusting the doctor’s orders to monitor the patient

when she clearly felt that it wasn’t the right thing to do by evidence shown that she repeatedly

phoned the physician. This error put the patient in harms way and the patient went into shock
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because the nurse was not assertive enough to seek a different venue for evaluation. Ignorance is

no excuse in this case because had of she followed hospital protocol and went to her immediate

supervisor with her concerns this situation might have been avoided.

Reference:
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The American Association of Critical-Care Nurses. AACCN Standards for Establishing and

Sustaining Healthy Work Environments: A Journey to Excellence. Am J Crit Care 2005

14: 187-197

Ferrell, K. G. (2007). Documentation, Part 2: The Best Evidence of Care. American Journal of

Nursing, 107(17). 61-64.

“Malpractice.” Encyclopedia of Nursing & Allied Heath Ed. Kristen Krapp. Gale Cengage.

2006. eNotes.com. Retrieved February 05, 2010 from http://www.enotes.com/nursing-

encyclopedia/ malpractice

State and Consumer Services Agency, Board of Registered Nursing (n.d). An Explanation of the

Scope of RN Practice. Retrieved February 03, 2010, from http://www.rn.ca.gov/

Sirota, T (2007). Nurse/physician Relationships: Improving or Not? Nursing, 37(1), 52-58.

Retrieved February 05, 2010 from

http://nursingcenter.com/library/journalarticleprint.asp?article_id=686652

Weld, K., & Bibb, S.. (2009). Concept Analysis: Malpractice and Modern-Day Nursing Practice.

Nursing Forum, 44(1), 2-10. Retrieved February 3, 2010, from Health Module.

(Document ID: 1658385801).