Avoiding Nurse Litigation Part 1

Understanding Nursing Malpractice by Mary Franks, MSN, APRN, FNP-C

The first thing you think about when you become a nurse is taking care of your patients. But when you are first practicing, how often do you have concerns regarding potential litigation?  Despite using best practices and clinical guidelines, one can be at risk of facing a lawsuit one day and should know important steps to take to avoid nursing litigation.

The terms malpractice lawsuit and litigation are often used interchangeably.  However, that is incorrect. A malpractice lawsuit is the actual action the individual is taking against another party due to damages. The term litigation is the process of taking legal action, which includes investigation, discovery of evidence, trial, and appeal. 

What is malpractice?
Medical malpractice has been in existence for quite some time. Malpractice suits first appeared in the United States regularly beginning in the 1800s, according to Dr. B, Sonny Bal, MD. Liability systems exist to provide compensation, to provide corrective justice, and to incentivize quality of care. Medical malpractice law is under the authority of the individual states in the United States. Allegations of medical negligence must be filed promptly; this legally prescribed period is called the Statute of Limitations, and varies from state to state. 

Two different terms are considered in medical and nursing litigation: 1. negligence and 2. malpractice.  Negligence is defined by the Missouri Department of Health and Senior Services (MDHSS) as, “A deviation from the standard of care that a healthcare provider would use in a particular circumstance.”  Medical malpractice, as defined by Bal, is “any act or omission by a physician during the treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” An article by Dr. Eric Katz, MD, titled ‘Defensive Medicine: A Case and Review of Its Status and Possible Solutions’, discusses that within malpractice (nursing or medical), the Professional Standards have failed, which results in harm to the patient.

Bal acknowledges for a medical or nursing litigation suit to be justified, the injured patient must show that the physician or nurse acted negligently in rendering care and that such negligence resulted in injury. To bring forth this claim, four elements must be proven:  


  1.     a professional duty owed to the patient
  2.     a breach of such duty
  3.     injury caused by the breach
  4.     resulting damages

Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering. 

Levels of Liability

There are also different levels of responsibility or liability. The plaintiff must prove an individual is accountable for acts of negligence personally committed. In addition, the supervising physician or supervisor may be held liable for the acts of the nurse or nurse practitioner if there has not been an appropriate delegation of duties or adequate supervision. According to the MDHSS, an employer may be liable for the acts of its employees for failing to do the following:

  • Hiring staff who have the qualifications and skills to perform the necessary functions
  • Providing opportunities for the professional growth of the staff such as workshops and seminars
  • Providing adequate library services
  • Providing opportunities for the exchange of ideas
  • Providing and maintaining adequate equipment and supplies  
  • Ensuring that managers and supervisors carry out their duties competently

Some breaches of the standard of care are so egregious that expert testimony is not needed; thus, an operation on the wrong limb is an obvious breach of duty that speaks for itself. Bal has noted that this concept is captured in the legal term called res ipsa loquitur or “the thing speaks for itself”. 

Failures in the System

There are many contributing factors to negligence and malpractice. Electronic medical records (EMR) have been designed to streamline patient information. The EMR can bring multiple organization records together and provide more options for communication with patients. These opportunities include telemedicine and electronic messaging from patient to provider. However, many resources, such as Paterick et al article ‘Medical liability in the electronic medical records era', have recognized that the EMR can also pose many increased risks for negligence: failing to reply to patient messages in a timely fashion, copy-paste features instead of taking a new history, a physical, and providing advice without a recorded physical exam with the patient complaint.  

Failure to document can cause significant consequences. For example, in a case study reviewed by the
Nursing Service Organization (NSO) in 2019, it was noted that a nurse practitioner examined a man with concern for colon cancer. The nurse practitioner suggested he needed to have a colonoscopy; however, the patient refused referrals. He was advised to have a follow-up three weeks later from this initial visit, at which point he had reported the rectal pain and bleeding had stopped. Approximately twenty months after the initial visit for concern of rectal bleeding and rectal pain, the patient had a colonoscopy due to continued rectal pain and bleeding. The patient was found to have a four-centimeter tumor in his rectum and the patient was diagnosed with differentiated metastatic colon adenocarcinoma. The patient died one year after his cancer diagnosis.

Why do I bring up failing to document? In litigation, the nurse practitioner in the case above was not able to explain why she didn’t document her conversation about the referral for colonoscopy and subsequent refusal by the patient. The nurse practitioner stated she used the EMR drop boxes to assist in documentation; however, she mentioned discussion would have to be entered manually, likely taking more time to chart. She stated she didn’t have time between patients to document this.  In my thirteen years plus practicing as a nurse, I have lived by the saying, "if it wasn’t charted, it didn’t happen."

Final Thoughts on Nursing Malpractice 

In summary, to prove medical negligence, a plaintiff must establish the applicable standard of care and prove that the defendant caused injury by failing to meet the established standard. The maturation of the EMR may reshape medical liability by shifting the standard of care that is accepted by the medical community, thereby amending the standard used to impose liability. EMR-related issues accounted for less than one percent of all claims closed by the Doctors Company malpractice insurer between January 2007 and June 2014. However, it is up to the professional to act in such a manner to perform tasks within their scope, and within the standards of practice.  

Check out part 2 in avoiding nurse litigation and learn how to minimize the risk of litigation.

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