Malpractice is defined as improper or negligent practice by a lawyer, physician, or other professional who injures a client or patient. The fields in which a judgment of malpractice can be made are those that require training and skills beyond the level of most people's abilities. Medical malpractice is defined as a wrongful act by a physician, nurse, or other medical professional in the administration of treatment— or at times, the omission of medical treatment, to a patient under his or her care. Although dentists, architects, accountants, and engineers are also liable to malpractice suits, most lawsuits of this type in the United States involve medical malpractice.
Negligence can result from a lack of knowledge or skill, or from failure to exercise reasonable judgment in the application of professional knowledge or skill. Lack or failure is determined by comparing the action in question with what a similar practitioner would reasonably be expected to do in the same circumstances.
In law, malpractice is classified as a tort, which is a wrongful act resulting in injury to another's person, property, or reputation. In a tort, the injured party is entitled to seek compensation for the injury. All torts, including malpractice, have three features:
- a person who has a duty of care toward others
- a failure to exercise due care
- an injury or financial damages caused by the failure
The American Nurses Association estimates that there are 1–3 million health care errors in United States hospitals per year. In the past, only physicians were sued for malpractice, but as of 2001, nurses and other allied health professionals are being named with increasing frequency as defendants in lawsuits. This focus on shared responsibility can be attributed to a number of factors.
The responsibilities of nurses and allied health professionals are continually expanding to include more risk and more patient contact without a physician present. In some clinic settings, advanced practice nurses have prescriptive authority and can perform many of the same functions as a physician. This expansion increases the liklihood of lawsuits against nonphysician health care providers.
In 2001, limits on staffing and a shortage of qualified nurses have increased demands on the time and attention of health care professionals. Even conscientious workers may find themselves making mistakes when under increased pressure to do more with fewer resources. This pressure leads to errors resulting from breakdowns in communication as well.
In addition, the advent of the Internet has produced a patient population that is more knowledgeable about health care and more aware of the risks and benefits of treatment. Health care providers are no longer regarded as "always knowing what's best." Easy access to health care information enables patients to judge for themselves if they are receiving reasonable care or not.
The legal process of malpractice suits
When a patient wishes to sue a medical professional for malpractice, he or she must first consult an attorney. Most malpractice attorneys work on a contingent fee
Contingent fee—A method of compensation in which an attorney is paid only if damages are awarded to the client. Contingent fees are usually a percentage of the gross amount of the award.
Defendant—The party sued or accused in a court of law.
Plaintiff—The party initiating a lawsuit in a court of law.
Prescriptive authority—Legal authority granted to advanced practice nurses to prescribe medication.
Tort—A wrongful act that causes injury to another person's body, property, or reputation, for which the injured party is entitled to seek compensation. Malpractice is classified as a tort in the legal system of the United States.
basis. This term means that the attorney is paid only if the patient recovers damages from the professional. The attorney usually receives a percentage of the gross award—sometimes as high as 30–40%.
The attorney will obtain a detailed medical history from the patient, including the names of all physicians and hospitals who have treated him or her. The most important step is securing a medical expert. The attorney will consult someone certified in the relevant medical specialty in order to determine whether there is sufficient evidence that the defendant medical professional did indeed injure the patient.
If the medical expert concludes that there is evidence of malpractice, a lawsuit is filed. If the plaintiff and the defendant cannot resolve their differences outside of court, the case will go to trial before a judge and jury.
Proving medical malpractice
Four elements must be proven in court in order for a verdict of malpractice, or negligence, to be issued. These include legal duty; breach of duty; causation; and damages.
Legal duty to the patient is initiated upon establishment of a provider-patient relationship. For example, if treatment is begun, a contract is implied to exist between the health care provider and the patient. If health care professionals assist at the scene of an accident, they are covered under Good Samaritan law if the assistance is given freely and in a situation where other medical personnel and equipment are not immediately available. In most states, there is no legal duty to assist in such a situation, although there may be an ethical or moral duty. Good Samaritan law offers protection against litigation for simple negligence in order to encourage health care professionals to stop at accident scenes, but any action considered gross negligence is not protected.
Breach of duty is determined by comparing the action in question with the established standard of care. These standards are developed by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and State Nurse Practice Acts, and are communicated by professional associations, professional journals and textbooks, job descriptions, and organization policies and procedures.
Proving causation requires evidence that the health care provider's negligence directly caused injury or harm to the patient. Even if breach of duty can be established, malpractice is not proven unless causation is confirmed.
The last step in proving malpractice is verifying that the patient suffered disability, disfigurement, pain, suffering, or financial loss as a result of negligence. In some states, any of the defendants may be required to pay 100% of the award, even if they were only slightly negligent in comparison to the other defendants. This rule is gradually being abolished, however, and usually liability is distributed based on degree of fault.
Since there has been a trend to include nurses and allied health professionals in medical malpractice suits, the question of liability insurance must be addressed. Nurses and allied health professionals are usually covered by liability insurance provided by their employer, and many professionals consider this coverage sufficient. Others, however, encourage purchasing a personal policy as well for the following reasons:
- The employer's policy may not cover the total award.
- Employer coverage may not apply after job termination.
- Agency workers are not usually covered by hospital policies.
- Personal policies may also cover attorney fees, transportation, and paid time off from work.
Some professionals may think that having personal liability insurance makes them more likely to be sued; however, this is not true. If a health care worker is involved in a negligent situation in any way, they can be named in the lawsuit. The plaintiff's lawyer may not investigate the defendants for personal insurance; and even if the lawyer does make an investigation, the jury is not allowed to have that information.
Some nurses and allied health professionals may decide not to have personal liability insurance "because it costs too much." The average yearly cost of a nursing policy with a liability limit of $1,000,000 is approximately $90. That's relatively inexpensive protection from having to pay out of one's own pocket for damages awarded in a lawsuit.
The obvious professional implications of malpractice include the reasons for lawsuits against nurses and allied health professionals; and ways to avoid being named in a suit.
Reasons for lawsuits against nurses and allied health professionals
Nurses and allied health care professionals have a duty to question physician orders that are inappropriate or unclear. If they do not ask such questions, and a patient is harmed as a result of an inappropriate order, the nurse or allied health professional is just as liable for damages as the physician. The same is true for verbal orders. Verbal orders should be accepted only in emergency situations, and the physician should write and sign the order immediately afterwards. Telephone orders can be accepted by a registered nurse or pharmacist, but should be signed by the physician as soon as possible.
If a patient's status changes and the physician is not notified, the nurse is liable for damages that may occur. These changes include change in physical status, critical laboratory values, and critical information that the physician should ask for but doesn't. If a medical resident is managing the patient, the attending physician must still be notified.
Documentation is crucial. Specifics should be documented about the patient's condition, who was notified and what was said, the interventions implemented, and the outcomes of care. A favorite phrase in health care is "If it wasn't documented, it wasn't done," and that's exactly how the court will view the patient's chart in a lawsuit.
Other common reasons for lawsuits against nurses include:
- failure to secure the patient's safety
- failure to properly assess the patient
- failure to perform a procedure according to established standards of care
- failure to administer medication properly
Ways to avoid being named in a lawsuit
Nurses and allied health care professionals who are conscientious and who exercise good judgment are usually successful at avoiding negligent practice. Not every situation can be completely controlled, however, especially when other physicians or health care professionals are involved. The American Nurses Association is a strong advocate for patient safety and has proposed whistle-blower protection for nurses and allied health care professionals who report unsafe patient care practices. Whistle-blower protection legislation has been addressed at the state and federal levels.
There is another simple way to lessen the chance of being included in a lawsuit: give compassionate care. It's been established that patients who file lawsuits tend to sue people who have made them angry. Often, the real issue for patients is that they feel they have not been heard or treated with respect. One study (Beckman, et al.,1994) reviewed 45 malpractice cases against a large medical center and found that in 71% of the cases, plaintiffs stated that they had a negative relationship with the care-givers. The issues included feelings of abandonment; feeling that discomfort had been ignored; not receiving explanations about the care given or expected outcomes; and feeling that the patient's or family's opinions were discounted.
In another situation, a defense attorney for health care providers found that a plaintiff refused to name a certain nurse in the lawsuit, even though the nurse was clearly negligent. The plaintiff felt that this nurse was the only one who gave compassionate care.
Effective communication, compassionate care, and treating patients with dignity increases both patient and professional satisfaction. The end result is patients who are less likely to initiate lawsuits, and health care workers who are less likely to end up in court.
Beckman, H.B., et al. "The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff's Depositions." Archives of Internal Medicine 154, no.12 (1994): 1365.
Calloway, S. "Preventing Communication Breakdowns." RN 64, no. 1(2001): 71-72, 74.
Crane, Mark. "NPs and PAs: What's the malpractice risk?" Medical Economics 77, no. 6 (March 20, 2000).
Helm, A., and N. Kihm. "Is Professional Liability Insurance for You?" Nursing 31, no. 1 (2001): 48.
Martin, G.A. "ARNA Workplace Advocacy Newsletter. Torts-R-Us." Arkansas Nursing News 17, no. 4 (2001): 16-18.
Mock, K. "Keep Lawsuits at Bay with Compassionate Care." RN 64, no. 5 (2001): 83-84, 86.
American Bar Association (ABA). 750 North Lake Shore Drive, Chicago, IL 60611. (312) 988-5000 or (800) 964-4253.
American Nurses Association. 600 Maryland Ave. SW, 100 W., Washington, DC 20024. (800) 274-4ANA. <http://www.nursingworld.org>.
Allied Health Professionals Policy. HCPro. 2001. <http://www.credentialinfo.com/cred/pandp/ahppolicy.cfm> (July 28, 2001).
Abby Wojahn, R.N.,B.S.N.,C.C.R.N.