As with physicians, nurses can be held liable for medical malpractice, personal injury and wrongful death. A broad overview of medical malpractice can be summarized by 5 “D”s:
Duty of care: The legal duty of care by a nurse owed to the patient or client in Florida is specified in the State of Florida Nurse Practice Act. Another standard that can be referenced is the American Nurses Association’s Code of Ethics for Nurses.
Deviation in the standards of care: At their most basic, malpractice cases examine actions taken by the nurse or the omission to take needed action. Those will be judged against the standards of care set by the state as well as nursing care professional organizations and the employer’s policies and procedures.
Direct causation: Medical malpractice is tried in civil court where the person who is suing must prove a preponderance of evidence that there is a greater than 50 percent chance that the person being sued is responsible for the damage. To prove or disprove that, lawyers call upon expert witnesses. A licensed RN testifying in a case against a licensed RN will rely on the medical records for evidence of deviation from standards of care as to what a prudent and reasonable RN would do under similar circumstances.
Damages: The heart of any case is the injury that can be proved to have happened to patient’s physical/emotional health and the estimated cost to compensate the patient or, if the injury is alleged to have caused the patient’s death, to his or her heirs.
Defenses: Each case is different but there are three possible defense strategies to keep in mind: (1) The Statute of Limitations in Florida is two years from the time of the action or omission, or, four years (the Statute of Repose) in the case of something being discovered such as a surgical instrument found to have been left in a patient or the incorrect reading of a diagnostic test. (2) Assumption of Risk – the possible risk was conveyed to the patient who then consented to the procedure and (3) Contributory negligence – that the patient did or did not do something that contributed to the injury – is admissible in Florida and is weighed by the jury when determining the amount of any awarded damages.
The National Practitioner Data Bank is a confidential information clearinghouse created by Congress to protect health care quality, protect the public, and reduce health care fraud and abuse. It collects information on medical malpractice payments, federal and state licensure and certification actions, adverse professional society membership actions, health care-related criminal convictions and civil judgments and other adjudicated actions or decisions. Deviation from a standard of nursing is reason to file a report and for possible disciplinary action by the State Board of Nursing; the element of damages or injury to the patient or client is not a necessary requirement for possible State Board of Nursing action on a nurse’s license.
A healthcare provider such as a hospital has a duty to provide for the safety and welfare of the patients within its walls which includes hiring only competent nurses, providing competent supervision, providing training as warranted, and requiring nurses to adopt and follow stipulated policies and procedures.
Even if the nurse is not a direct employee, the hospital may be liable for the acts of an independent contractor if the person suing can prove the hospital held itself out to be the provider, the patient looked to the hospital as the one providing the care, or the patient accepted the services in the reasonable belief they were being provided by the hospital or its direct employee.
A lawyer’s obligation is to his or her client and I would advise any nurse facing legal action to seek independent counsel separate from that which may be offered by the employer.
