CE

Continuing Education
2 HOURS

By Eileen M. Croke, EdD, ANP, LNC-C

Nurses, Negligence,
and
Malpractice An analysis based on more
than 250 cases against nurses.

M
ore and more nurses are being named defendants in malpractice lawsuits,
according to the National Practitioner Data Bank (NPDB). From 1998 to
2001, for instance, the number of malpractice payments made by nurses
increased from 253 to 413 (see Figure 1, page 55). The trend shows no
signs of stopping,1-3 despite efforts by nursing educators to inform nurses
and student nurses of their legal and professional responsibilities and lim-
itations. A charge of negligence against a nurse can arise from almost any
action or failure to act that results in patient injury—most often, an unin-
tentional failure to adhere to a standard of clinical practice—and may
lead to a malpractice lawsuit.
This article analyzes cases decided between 1995 and 2001 and iden-
tifies the actions and issues that prompted charges of negligence that led
to malpractice lawsuits against nurses, as well as the areas of nursing
practice named most frequently in the complaints. (This article does not
address criminal cases arising from intentional acts, such as assault, bat-
tery, or false imprisonment, for which nurses have been arrested and
sometimes prosecuted.)

DEFINING AND TRACKING MALPRACTICE

The Joint Commission on Accreditation of Healthcare Organizations
(JCAHO) defines negligence as a “failure to use such care as a reasonably
prudent and careful person would use under similar circumstances.”

Eileen M. Croke is assistant professor of nursing at California State University, Long Beach. Contact
author: [email protected].

54 AJN ▼ September 2003 ▼ Vol. 103, No. 9 http://www.nursingcenter.com

 Figure 1. Malpractice Payments by Nursing Category, 1998--2001

Nonspecialized RNs 413

Nurse anesthetists
Nurse midwives
Nurse practitioners 360
Totals
322
Number of Claims Paid

253 248
236

185

139

85
68 68
55 55
44
35 37
28 25
18 22

1998 1999 2000 2001

Year
Note: Annual subtotals for 1990–1997 are unavailable.
Source: The National Practitioner Data Bank. [Web site.] 2003. www.npdb-hipdb.com/annualrpt.html.

JCAHO defines malpractice as “improper or uneth- • Early discharge. Patients are being discharged
ical conduct or unreasonable lack of skill by a holder from hospitals at earlier stages of recovery and
of a professional or official position; often applied to with conditions requiring more acute and inten-
physicians, dentists, lawyers, and public officers to sive nursing care.5 Nurses may be sued for not
denote negligent or unskillful performance of duties providing care or not making referrals appropri-
when professional skills are obligatory. Malpractice ate to the patient’s condition.
is a cause of action for which damages are allowed.”4 • The nursing shortage and hospital downsizing
Malpractice is defined variously under state nurse have contributed to greater workloads for
practice acts, institutional policies, and federal guide- nurses, increasing the likelihood of error.
lines such as JCAHO standards, all of which may be • Advances in technology require nurses to have
taken into consideration in court. knowledge of a variety of technologies’ capabili-
Several factors have contributed to the increase in ties, limitations, and safety features.
the number of malpractice cases against nurses. • Increased autonomy and responsibility of hospital
• Delegation. As a result of cost-containment efforts nurses in the exercise of advanced nursing skills
in hospitals and HMOs, nurses are delegating have also brought about greater risk of error and
more of their tasks to unlicensed assistive person- liability.
nel. Delegation of some of these tasks may be con- • Better-informed consumers are more likely to be
sidered negligence according to a given facility’s aware of malpractice issues and to recognize
standards of care or a state’s nurse practice act. insufficient or inappropriate care.

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 those cases reported to the NPDB between September
Figure 2. Incidence of Nursing Negligence Allegations 1, 1990, and December 31, 2001, are included).
Nonspecialized RNs made the most malpractice pay-
by Setting, 1995-- 2001 ments (2,311 or 63.9%), followed by nurse anes-
thetists (820 or 22.7%), and nurse midwives (296 or
Independent practice setting
8.2%). Nurse practitioners made the fewest mal-
Physicians 6 (2%) Advanced practice nurses
24 (9%)
practice payments (188 or 5.2%). (For numbers per-
taining to 198 through 2001, see Figure 1. Annual
Home health agencies reports of the NPDB are available online at
5 (2%) www.npdb-hipdb.com.)
Acts of commission or omission that plaintiffs
Psychiatric facilities commonly alleged 20 years ago continue to be
20 (8%) alleged causes of nursing negligence.1, 3 According to
Acute care the NPDB’s annual reports, from 1990 through 2001
Long-term care facilities the majority of payments in malpractice suits resulted
facilities from the following nursing negligence issues: among
153 (60%)
45 (18%) nonspecialized RNs, problems relating to monitor-
ing, treatment, medication, obstetrics, and surgery;
among nurse anesthetists, problems relating to anes-
thesia; among nurse midwives, problems relating to
obstetrics; and among nurse practitioners, problems
Note: Total number of complaints = 253; percentages are rounded to
relating to diagnosis and treatment.
the nearest 1%, resulting in a total of 99%. A 1997 study identified the following nursing
negligence issues as the bases of settlements or ver-
dicts in favor of plaintiffs: failure to communicate
adequate information to the physician; inadequate
• Expanded legal definitions of liability have held all patient assessment, nursing interventions, or nurs-
professionals to higher standards of accountabil- ing care; medication errors; inadequate infection
ity.1 For example, because of the expanded scope control; and unsafe or improper use of equipment.7
of practice of advanced practice nurses, courts (Similar negligence issues were identified in studies
have held them to a medical standard of care.2 by Campazzi [1980],8 Smith [1989],9 Mayberry and
In 1990 the NPDB began collecting information Croke [1996],3 and Smith-Pittman [1998].10)
about health care practitioners who, as the result of It’s important to note that a payment or claim
judgments in malpractice suits, have entered into made in a malpractice action shouldn’t be construed
settlements, had disciplinary action taken against as a presumption of the provider’s guilt. As a fact
them that resulted in licenses being revoked or priv- sheet from the NPDB states, “settlement of a med-
ileges to practice being limited, or had to pay mon- ical malpractice claim may occur for reasons that do
etary awards (or whose employers or insurance not necessarily reflect negatively on the professional
carriers have had to pay monetary awards).1 competence or conduct”6 of the provider. For exam-
(Established in 1986 and regulated by the Bureau of ple, a nurse’s insurance policy might allow the insur-
Health Professions, the Health Resources and ance carrier to settle without the policyholder’s
Services Administration, and the U.S. Department consent.2
of Health and Human Services, the NPDB assists
eligible agencies such as state licensing boards, hos- CASE SUMMARY REVIEW
pitals, and HMOs in checking the qualifications of I have reviewed more than 350 trial, appellate, and
practitioners whom the agencies wish to hire or to supreme court case summaries, which were drawn
whom they wish to grant licenses, membership, or from legal research sources such as the NPDB;
clinical privileges.6) regional reports and digests; the LexisNexis data-
The NPDB classifies RNs into four categories: base; the Internet portals FindLaw and MedLaw;
nonspecialized RNs, nurse anesthetists, nurse mid- secondary sources such as nursing malpractice insur-
wives, and nurse practitioners. According to the data ance information; and professional newsletters, jour-
bank, RNs have been responsible for 3,615 malprac- nals, and books, including Medical Malpractice Law
tice payments over the history of the NPDB (only & Strategy, Legal Eagle Eye Newsletter for the

56 AJN ▼ September 2003 ▼ Vol. 103, No. 9 http://www.nursingcenter.com

Nursing Profession, Journal of Legal Nurse Con-
sulting, Journal of Nursing Law, Legal and Ethical Six Major Categories of Negligence That Result
Issues in Nursing, Nurse’s Legal Handbook, and
Nursing Practice and the Law. Only cases that met
in Malpractice Lawsuits
all of the following criteria were included in the
Failure to follow standards of care, including failure to
analysis: a nurse was engaged in the practice of
nursing as defined by his or her state’s nurse prac- • perform a complete admission assessment or design
a plan of care.
tice act; a nurse was a defendant in a civil lawsuit as
• adhere to standardized protocols or institutional
the result of an unintentional action (no criminal
policies and procedures (for example, using an
cases were considered); and a trial was held between improper injection site).
1995 and 2001. • follow a physician’s verbal or written orders.
Two hundred fifty-three case summaries were
included in the analysis. The summaries provided Failure to use equipment in a responsible manner,
information on the nurses’ areas of practice, the including failure to
types of negligence involved, and the case outcomes • follow the manufacturer’s recommendations for
(settlements or jury verdicts). Monetary awards operating equipment.
were paid either directly by independent practition- • check equipment for safety prior to use.
ers or by employers on behalf of employees accord- • place equipment properly during treatment.
ing to the doctrine of respondeat superior (Latin for • learn how equipment functions.
“let the master answer,” this principle holds that an
employer is responsible for actions performed by an Failure to communicate, including failure to
employee in the course of employment).2
• notify a physician in a timely manner when
As shown in Figure 2 (page 56), the greatest fre- conditions warrant it.
quency of reported cases of negligence occurred in • listen to a patient’s complaints and act on them.
acute care hospitals (60%). The rest occurred in
• communicate effectively with a patient (for example,
long-term care facilities (nursing homes and rehabil- inadequate or ineffective communication of discharge
itation and transitional care units) (18%); psychiatric instructions).
facilities (8%); home health agencies (2%); and inde- • seek higher medical authorization for a treatment.
pendent practice care settings of physicians (2%); and
advanced practice nurses, which include nurse practi- Failure to document, including failure to note in the
tioners, nurse midwives, and nurse anesthetists (9%). patient’s medical record
The great difference in proportion between acute • a patient’s progress and response to treatment.
care facilities and long-term care facilities may be • a patient’s injuries.
explained by the larger number of specialty practice • pertinent nursing assessment information (for
areas in acute care and by the condition of patients in example, drug allergies).
the specialty practice areas—in EDs; operating and • a physician’s medical orders.
recovery rooms; and obstetrical, intensive care, coro- • information on telephone conversations with physi-
nary care, and medical–surgical units, patients are cians, including time, content of communication
sicker, may require immediate interventions, and may between nurse and physician, and actions taken.
have rapidly changing conditions.10
Failure to assess and monitor, including failure to
NEGLIGENCE ISSUES • complete a shift assessment.
In my case review, I identified six major categories • implement a plan of care.
of negligence issues that prompted malpractice law- • observe a patient’s ongoing progress.
suits. Documentation describing the negligent • interpret a patient’s signs and symptoms.
behavior often used terms such as failure to, lack of,
incomplete, ineffective, and improper. The cate- Failure to act as a patient advocate, including failure to
gories of negligence are: failure to follow standards
• question discharge orders when a patient’s condition
of care, failure to use equipment in a responsible
warrants it.
manner, failure to communicate, failure to docu-
• question incomplete or illegible medical orders.
ment, failure to assess and monitor, and failure to
• provide a safe environment.
act as a patient advocate (see Six Major Categories
of Negligence That Result in Malpractice Lawsuits,

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 page 57). (These categories are not mutually exclu- “[W]hile we cannot say with certainty that Mr. Hall
sive; in one of the cases discussed below, two kinds would not have been injured if the nurse had not
of negligence are involved.) been negligent, we believe that the jury could rea-
The following are summaries of five randomly sonably conclude that her negligence played a sig-
selected malpractice cases in which nurses were nificant part in allowing Mr. Hall to be injured by
named as defendants. They illustrate the range of the use of Orthoblock for his ACF surgery. All that
actions that result in breaches of the standards of care. one has to assume here is that the hospital would
Failure to follow standards of care. Standards not have allowed the surgery to take place, and we
such as hospital policies have evolved to protect do not regard this assumption as requiring a leap of
consumers from substandard care. In defining faith.”11
acceptable levels of care—the ordinary and reason- Failure to use equipment in a responsible man-
able care required to ensure that no unnecessary ner. Nurses must know the safety features, capabil-
harm comes to patients2—standards of care provide ities, and limitations of any equipment they use, as
criteria for determining whether a nurse has well as its hazards. Nurses must follow the manu-
breached duty in the care owed to the patient. facturers’ usage recommendations and refrain from
Standards of care are derived from sources such as modifying the equipment. The Safe Medical Devices
state boards of nursing, professional nursing associ- Act of 1990 requires that all medical device–related
ations (for example, the ANA and the National adverse incidents that result in death or serious ill-
League for Nursing), hospital policies and proce- ness or injury be reported to the manufacturer and
dures, and the guidelines of federal organizations the Food and Drug Administration within 10 work-
(for example, JCAHO and the Centers for Medicare ing days.2
and Medicaid Services). In Chin v. St. Barnabas Medical Center (1988),
In Hall v. Arthur (1998), the United States Court the Superior Court of New Jersey, Appellate
of Appeals for the Eighth Circuit upheld a trial Division, reversed a trial court’s judgment against a
court’s decision, which held a hospital liable because physician alone and said that other hospital person-
of a nurse’s breach of a standard of care in an ante- nel should also be held liable.12 The case involved
rior cervical diskectomy and fusion (ACF).11 In the the death of a 45-year-old woman, Ms. Chin, from
trial, the plaintiff’s argument focused on the use of a massive air embolism during a diagnostic hys-
Orthoblock, a ceramic substance used to replace teroscopy. The woman’s estate had brought a med-
bone in maxillofacial surgery, which was implanted ical malpractice suit against all the providers who
in the patient’s spine. (The usual procedure in such had possibly played a role in the events leading to
surgery would be to obtain bone from a bone bank her death: the physician who performed the proce-
or harvest it from the patient’s hip.) After four dure, three operating room nurses (one scrub nurse
months of back difficulties, the patient, Mr. Hall, and two circulating nurses), the hospital, and the
required a second ACF to remove the Orthoblock manufacturer of the hysteroscope, an optical device
and have his own bone implanted. with a pump used in examining the uterus. During
Hospital policy required that any “unusual the procedure, fluid is pumped continuously into
requests” for use of a product undergo review by the uterus to enhance the view of its interior. The
department managers to assess the product’s appro- device requires the connection of four tubes: an irri-
priateness.2 The nurse failed to seek such a review gation tube through which fluid flows into the
and ordered the Orthoblock for use in the patient’s uterus, a suction tube that draws fluid out of the
ACF. The package insert for the product, presented uterus, a tube that connects a source of compressed
as evidence at trial, indicated that Orthoblock was nitrogen to the pump, and an exhaust tube. Because
specifically contraindicated for use in spinal proce- one of the tubes was connected to the hysteroscope
dures. The plaintiff’s attorney argued that the incorrectly, nitrogen was pumped into the patient’s
nurse’s failure to follow hospital policy contributed uterus, causing a fatal air embolism in the coronary
to Mr. Hall’s injury. arteries.
On appeal, the hospital did not dispute the jury’s At trial, all parties accepted the theory that the
finding of negligence, but asserted that the plaintiff exhaust hose was the source of the gas that killed
produced insufficient evidence from which a juror Ms. Chin; who was at fault for attaching the hys-
(or “reasonable fact finder”) or judge could con- teroscope incorrectly was disputed. Evidence pre-
clude that the nurse’s negligence contributed to Mr. sented at trial revealed that the two nurses assigned
Hall’s injury. The appellate court disagreed, stating: to the surgical procedure had neither hospital train-

58 AJN ▼ September 2003 ▼ Vol. 103, No. 9 http://www.nursingcenter.com

ing nor experience in the hysteroscope’s use.
Evidence also showed that the supervising nurse What To Do If You Are Served with a
who made the assignments was unaware of the
nurses’ lack of experience. No expert opinion on the Complaint
standard of care was presented at trial. First: notify your insurance carrier.
At the end of the trial, the judge instructed jury
members to use their “common knowledge” to
decide if the nurses deviated from their duty in car- A complaint is a legal pleading made by a
plaintiff to initiate a lawsuit. It includes a
formal statement of the charges and the alleged
ing for Ms. Chin. (The common-knowledge stan-
cause or causes of action against the defendant.
dard applies when the facts of a case are such that a
This document may be the first indication a
layperson’s common knowledge and experience nurse has that she’s being named as a defen-
would enable a juror to conclude, without hearing dant in a civil lawsuit. Once the complaint has
expert testimony, that a duty of care has been been served, the nurse must notify her employer
breached.) The judge also informed the jury that and liability insurance carrier. Usually the insur-
because Ms. Chin was unconscious at the time of ance carrier and the employer will assign attor-
the procedure, she was blameless in her own death neys to the case, but if the nurse doesn’t have
liability insurance, she should engage the serv-
and at least one of the defendants clearly was at
ices of an attorney. The nurse must also refrain
fault—shifting the entire burden of proof from the from discussing the case with anyone but the
plaintiff to the defendants (that is, each defendant assigned defense attorney.
had to prove that he or she was not at fault). When notifying her liability insurance carrier,
The jury awarded the plaintiff $2,000,000 in the nurse should give a written description of the
damages and found the defendants liable in the fol- event, including the time, place, and circum-
lowing proportions: the physician, 20%; the experi- stances surrounding the incident, as well as a
list of the names and addresses of the injured
enced circulating nurse, 25%; the inexperienced
party or parties and any witnesses. Once
circulating nurse, 20%; and the hospital, 35%. The served, the nurse must forward all relevant docu-
scrub nurse and the manufacturer were cleared of ments to the insurance carrier within the speci-
all liability. fied time period set forth in the liability
Immediately after the verdict, the trial judge ruled insurance policy. If the nurse does not notify
in favor of the hospital’s motion that questioned the the insurer within the specified time period, the
validity of applying the common-knowledge stan- insurer may deny coverage to the nurse.1
dard in this case; the judge reapportioned liability
REFERENCE
solely to the physician. In granting the hospital’s
1. Matthews M. The nurse and the legal system. In: O’Keefe
motion, the judge said the application of the ME, editor. Nursing practice and the law: avoiding mal-
common-knowledge standard had been an error. practice and other legal risks. Philadelphia: F. A. Davis
Co.; 2001. p. 42-57.
But in the physician’s appeal, the appellate court
reversed the trial court’s decision and essentially
restored the original jury verdict, saying that each
defendant had not entirely established the lack of In Busta v. Columbus Hospital Corporation
fault in Ms. Chin’s death and that the trial court (1996), the Montana Supreme Court affirmed the
had not erred in applying the common-knowledge judgment and orders of the District Court of the
standard. Eighth Judicial District.13
Failure to assess and monitor and failure to com- While he was a postoperative patient at
municate. Changes in the health status of a patient Columbus Hospital in Great Falls, Mr. Busta died
can be gradual or sudden and nurses are usually the from injuries sustained in a fall from his third-floor
first to see the changes and take action. A nurse’s window; apparently he had tried to climb down on
accuracy in assessing and monitoring and her timely an improvised rope. At trial, the nurse assigned to
reporting of changes in health status to a physician care for Mr. Busta testified that during her last
can often mean the difference between life and evening visit with him, he had experienced an
death. Vital aspects of communication besides time- episode of tachycardia and hypertension. He had
liness in reporting the change include persistence in also behaved atypically, desiring isolation and refus-
notifying the physician of the change, and accuracy ing all nursing care and his prescribed medication,
in communicating the nature and degree of the known to have adverse effects, including confusion,
change. anxiety, and psychosis. The nurse did not report the

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 symptoms and the change in behavior to the physi- cular injection and that this practice met the stan-
cian. She also testified that when she observed the dard of care. The jury found in favor of the plaintiff
patient at midnight, he appeared to be sleeping; she and awarded more than $90,000 in damages.
did not reassess his vital signs. On appeal, the defendants (the hospital and the
Mr. Busta’s surgeon testified that, because of the nurse) argued that evidence presented at trial
mind-altering adverse effects of the patient’s med- demonstrated that the nurse’s breach of the stan-
ication, he would have reassessed his patient if he dard of care could not have caused the patient’s
had been notified of the changing signs and symp- injury. The appellate court disagreed, stating that
toms. Expert testimony opined that the nurse was the nurse experts’ testimony—insufficient by itself
negligent in failing to adequately monitor Mr. Busta to support the jury’s decision—did support that
on the evening and night before he died, and in fail- decision when combined with the other evidence
ing to report the constellation of signs and symp- presented at trial.
toms to the surgeon; and that the hospital was Failure to act as a patient advocate. Legal and
negligent in failing to maintain a safe environment ethical issues often become entwined in health care
(evidence presented at trial showed that the hospital settings, and nurses must be knowledgeable in both.2
had not acted on a JCAHO directive to restrict the The ANA’s Code of Ethics for Nurses with
opening of windows in patients’ rooms). Interpretive Statements provides nurses with a
The jury found that the negligence of Columbus framework for ethical decision making and defines
Hospital combined with the patient’s contributory the role of the nurse as patient advocate.
negligence caused the patient’s injuries and death; According to O’Keefe in Nursing Malpractice and
the jury apportioned 70% of the liability to the hos- the Law, “Patient rights are the hallmark for advo-
pital and 30% to Mr. Busta. The jury found that Mr. cacy of nursing care. Nurses are compelled to strive
Busta and his estate were damaged in the amount of for excellent care of patients and the inclusion of
$5,000 and his heirs, $800,000. Based on the jury’s their rights in today’s health care system.”17 It’s
apportioned liability, the district court entered a important to note that, as patient advocates, nurses
judgment in favor of Mr. Busta’s estate in the may be required to care for patients whose health
amount of $3,500 and in favor of his heirs, of care decisions conflict with the nurse’s ethical beliefs.
$560,000. In Koeniquer v. Eckrich (1988), the Supreme
Failure to document. Documentation—the pur- Court of South Dakota reversed and remanded for
pose of which is primarily to communicate patient trial an order of summary judgment in favor of
information among providers—must accurately Dakota Midland Hospital by the Circuit Court of
reflect the nursing process, showing evidence of the Fifth Judicial Circuit.18 The case involved the
nursing assessment and diagnosis, planning for nurs- death of a patient, Winnifred Scoblic, as a result of
ing intervention, implementation and evaluation of sepsis, which was alleged to have developed when
planned interventions, and patient response.14, 15 she was discharged with a fever some 11 days after
The Court of Appeals of Louisiana, Fourth urinary tract surgery. The plaintiff, Ms. Koeniquer,
Circuit, affirmed the trial court’s verdict in Pellerin representing her mother’s estate, initiated a medical
v. Humedicenters, a case concerning a failure to malpractice suit against two physicians and Dakota
document nursing procedures.16 The plaintiff had Midland Hospital, alleging deviation from the
alleged that an ED nurse administered an injection appropriate standards of care for a patient in post-
of meperidine (Demerol) and hydroxyzine pamoate operative urology.
(Vistaril) in a substandard manner, causing a lump Ms. Scoblic’s surgery was performed on January 5,
at the injection site and continuous pain, which was 1983. Her temperature fluctuated during her post-
later diagnosed by a neurologist as cutaneous operative hospital stay and was recorded as 100.2°F
gluteal neuropathy. How the injury actually on January 16 at 8:15 AM, after the treating physi-
occurred could not be proven at trial. Medical cian had completed rounds. The patient was dis-
experts gave conflicting testimony regarding the charged at 10:45 AM on the same day. She was
cause of the patient’s nerve injury (either the readmitted to the hospital on January 19 with a
hydroxyzine pamoate or the needle could have diagnosis of sepsis. On January 21, she was trans-
caused it). Nurse experts opined that the failure to ferred to the University of Minnesota Hospital and
document the site and mode of injection fell short of on March 6 died of multiple organ failure. The
the standard of care. At trial, the defendant testified plaintiff’s expert witness opined that the nurses
that her customary practice was giving an intramus- failed to adequately monitor Ms. Scoblic’s changing

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 Figure 3. Distribution of Malpractice Cases by Practice Area (N = 253)
Practice Area

Medical–surgical 32 (n = 80)

Obstetrics 16 (n = 40)

Independent practice 12 (n = 30)

Transitional care units 8 (n = 20)

Nursing homes 8 (n = 20)

Psychiatric 8 (n = 20)
Intensive and coronary
3 (n = 9)
care units
Operating room 3 (n = 8)

Pediatrics 3 (n = 7)

Recovery room 2 (n = 6)

Home health 2 (n = 5)

Rehabilitation 2 (n = 5)

ED 1 (n = 3)

0 5 10 15 20 25 30 35
Percentage

condition and provide acceptable postoperative patient’s condition, to bring her concerns to the
care: although they claimed they had reported the physician, and to appeal to other authorities if the
patient’s elevated temperature and the condition nurse believes the physician’s decision is wrong.
of the incision and drainage from it to the physi- The court accepted the hospital’s argument that
cian on the day of discharge but had failed to doc- it’s a physician’s decision to discharge a patient and,
ument such a report; the expert also opined that therefore, that the hospital was an inappropriate
allowing Ms. Scoblic to be discharged with an ele- respondent to the suit. The state supreme court,
vated temperature and failing to provide Ms. however, ruled there was expert testimony in the
Scoblic with discharge instructions about monitor- record showing that hospital nurses had a duty to
ing her temperature were examples of failing to act attempt to delay Ms. Scoblic’s discharge, because of
as patient advocate. her changing symptoms that day, yet there was no
Although the hospital argued that the decision to evidence in the record that any nurse questioned or
discharge was a medical one, the hospital’s director disagreed with the physician’s decision to discharge
of nursing stated in her deposition that sometimes it her. The court held that nurses have a duty to ques-
is the nurse’s responsibility to question the physi- tion a physician’s order if they think it is in the
cian’s order, especially when there has been a signif- patient’s best interest to do so and to delay dis-
icant change in the patient’s condition. The director charge if they believe discharge deviates from
also confirmed the expert’s assertions that the nurse acceptable standards of care.19 In this case, the nurse
has a responsibility to independently evaluate the neglected her role as advocate.

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 PRACTICE AREAS CITED IN COMPLAINTS his or her legal responsibilities. The following can
In my case review, I identified 13 specialty practice help nurses reduce potential liability.
areas of nurses involved in malpractice cases. As Maintain open, honest, respectful relationships and
indicated in Figure 3 (page 61), nurses employed in communication with patients and family members.
acute care facilities were named as defendants in • Patients are less likely to sue if they feel that a
such litigation more frequently (153 cases) than nurse has been caring and professional.19
nurses employed elsewhere (100 cases). In acute • Don’t offer opinions when a patient asks what
care facilities, seven specialty practice areas were you think is wrong with him—you may be
identified. Nurses employed on medical–surgical accused of making a medical diagnosis.
units had the highest percentage of involvement in • Don’t make a statement that a patient may inter-
litigation (32%), followed by nurses employed on pret as an admission of fault or guilt.
obstetrics units (16%). (Similar findings were noted • Don’t criticize health care providers or their
for medical–surgical units in studies by Campazzi8 actions when you are with patients.
and Mayberry and Croke.3) • Maintain confidentiality in the health care setting.
The areas within acute care facilities in which Maintain competence in your specialty area of
nurses had the least involvement in litigation include practice.
coronary care and intensive care units, operating • Attend relevant continuing education classes.
rooms, and pediatrics (each with 3% of all cases), • Attend relevant hospital in-service programs.
followed by recovery rooms (2%) and EDs (1%). • Expand your knowledge and technical skills.
(Smith9 and Smith-Pittman10 identified EDs, obstet- Know legal principles and incorporate them into
rics units, psychiatric units, and operating rooms as everyday practice.
specialty practice areas associated with high frequen- • Keep up to date on your state’s nurse practice act.
cies of litigation.) • Keep up to date on hospital policies and proce-
I identified six specialty practice areas outside dures.
acute care in the review. Advanced practice nurses Practice within the bounds of professional licen-
employed in independent settings had the highest per- sure.
centage of involvement in litigation (9%), followed • Perform only the nursing skills allowed within
by nurses on transitional care and psychiatric units your scope of practice and that you are compe-
and in nursing homes (each with 8%). The areas with tent to perform.
least involvement in litigation included home health Know your strengths and weaknesses. Don’t
and rehabilitation units (each with 2%). (Campazzi,8 accept a clinical assignment you don’t feel compe-
Smith,9 Mayberry and Croke,3 and Smith-Pittman10 tent to perform.
found that nurses employed in areas outside acute • Evaluate your assignment with your supervisor
care were named less frequently as defendants in mal- • Accept only those duties you can perform com-
practice litigation than nurses employed in acute care, petently
but their studies do not reveal a consistent trend as to • Let an experienced nurse on the unit assume
which specialty practice area accounts for the most responsibilities for the specialized duties.
malpractice litigation.) • Document all nursing care accurately.
• If care is not documented, courts assume it was
REDUCING POTENTIAL LIABILITY not rendered.
“Nursing judgment involves the analysis of facts and • When documenting care on the patient’s chart,
circumstances on a case-by-case basis. To prevent use the FACT mnemonic: be factual, accurate,
malpractice, it is essential that the nurse undertake complete, and timely.20 ▼
this evaluation with regard to everything that he or
she does in the clinical setting.”14 Increasingly, nurses
Complete the CE test for this article by
are held accountable to the public for their profes-
using the mail-in form available in this
sional judgment and the outcomes arising from that issue or by going to Online CE at
judgment. www.ajnonline.com.
Malpractice litigation is both professionally and
emotionally devastating and can be financially dis-
REFERENCES
astrous. Each nurse can take steps to help reduce
1. Springhouse Corporation. Malpractice liability. In: Nurse’s
potential liability by using caution and common legal handbook. 4th ed. Springhouse, PA: Springhouse; 2000.
sense and by maintaining a heightened awareness of p. 197-236.

62 AJN ▼ September 2003 ▼ Vol. 103, No. 9 http://www.nursingcenter.com

 2. Guido GW. Professional liability insurance. In: Legal and

2
ethical issues in nursing. 3rd ed. Upper Saddle River, NJ:
Prentice Hall; 2001. p. 200-10.

CE
HOURS
3. Mayberry A, Croke E. Issues leading to malpractice show lit-
tle change: a review of the literature. The Journal of Legal
Nurse Consulting 1996;7(2):16-9. Continuing Education
4. Joint Commission on Accreditation of Healthcare
Organizations. Sentinel Event Glossary of Terms [Web site]. GENERAL PURPOSE: To provide registered professional
2003. http://www.jcaho.org/accredited+organizations/ nurses with an overview of the issues surrounding
laboratory+services/sentinel+events/glossary.htm. professional negligence and malpractice.
5. Cutrona A. Home health nursing. In: O’Keefe ME, editor.
nursing practice and the law: avoiding malpractice and other LEARNING OBJECTIVES: After reading this article and
legal risks. Philadelphia: F.A. Davis Co.; 2001. p. 317-35. taking the test on the next page, you will be able to
6. Fact sheet on the National Practitioner Data Bank [Web • describe trends related to negligence and malprac-
site]. 2001. http://www.npdb-hipdb.com/pubs/fs/ tice in health care.
Fact%20Sheet%20-%20National%20Practitioner%20 • list legal principles related to negligence and
Data%20Bank.pdf. malpractice.
7. Miller-Slade D. Liability theories in nursing negligence cases. • outline recommendations aimed at reducing
Trial 1997;33(5):52-7. malpractice liability.
8. Campazzi B. Nurses, nursing and malpractice litigation.
To earn continuing education (CE) credit, follow these
Administrative Quarterly 1980(5):1-18.
instructions:
9. Smith M. Negligent liability for the nursing profession:
implications for nursing education [Dissertation]: Florida 1. After reading this article, darken the appropriate boxes
State University; 1989. (numbers 1–17) on the answer card between pages 48
10. Smith-Pittman M. Nurses and litigation: 1990–1997. Journal and 49 (or a photocopy). Each question has only one
of Nursing Law 1998;5(2):7-19. correct answer.
11. Hall v. Arthur, 141 F. 3d. 844 (8th Cir, 1998). 2. Complete the registration information (Box A) and help
12. Chin v. St. Barnabas Medical Center, 160 NJ 454 (App. Div. us evaluate this offering (Box C).*
1999). 3. Send the card with your registration fee to: Continuing
13. Busta v. Columbus Hosp. Corp., 916 P.2d 122 (Mont. 1996). Education Department, Lippincott Williams & Wilkins, 345
14. Higginbotham E, McCarthy R. Elements of nursing negli- Hudson Street, New York, NY 10014.
gence. In: O’Keefe ME, editor. Nursing practice and the law: 4. Your registration fee for this offering is $13.95. If you take
avoiding malpractice and other legal risks. Philadelphia: F.A. two or more tests in any nursing journal published by
Davis Co.; 2001. p. 118-31. Lippincott Williams & Wilkins and send in your answers to
15. Higginbotham E. Documentation. In: O’Keefe ME, editor. all tests together, you may deduct $0.75 from the price of
Nursing practice and the law: avoiding malpractice and each test.
other legal risks. Philadelphia: F.A. Davis Co.; 2001. Within six weeks after Lippincott Williams & Wilkins
p. 163-74. receives your answer card, you’ll be notified of your test
16. Pellerin v. Humedicenters, Inc., 969 So. 2d 590 (La. App., results. A passing score for this test is 13 correct answers
1997). (76%). If you pass, Lippincott Williams & Wilkins will
17. Holloway R. Patient rights. In: O’Keefe ME, editor. Nursing send you a CE certificate indicating the number of
practice and the law: avoiding malpractice and other legal contact hours you’ve earned. If you fail, Lippincott
risks. Philadelphia: F.A. Davis Co.; 2001. p. 189-98. Williams & Wilkins gives you the option of taking the
18. Koeniquer v. Eckrich, 422 N.W.2d 600 (South Dakota, test again at no additional cost. All answer cards for this
1988). test on Nurses, Negligence, and Malpractice must be
received by September 30, 2005.
19. Guido GW. Tort law. In: legal and ethical issues in nursing.
3rd ed. Upper Saddle River, NJ: Prentice Hall; 2001. p. 78-107. This continuing education activity for 2 contact hours
is provided by Lippincott Williams & Wilkins, which is
20. Helm A. Nursing malpractice: sidestepping legal minefields.
accredited as a provider of continuing nursing educa-
Philadelphia: Lippincott, Williams & Wilkins; 2003. p. 1-33.
tion (CNE) by the American Nurses Credentialing
Center’s Commission on Accreditation and by the
American Association of Critical-Care Nurses (AACN
11696, category O). This activity is also provider
approved by the California Board of Registered
Nursing, provider number CEP11749 for 2 contact
hours. Lippincott Williams & Wilkins is also an
approved provider of CNE in Alabama, Florida, and
Iowa, and holds the following provider numbers: AL
#ABNP0114, FL #FBN2454, IA #75. All of its home
study activities are classified for Texas nursing continu-
ing education requirements as Type 1.
*In accordance with Iowa Board of Nursing administrative
rules governing grievances, a copy of your evaluation of this
CNE offering may be submitted to the Iowa Board of Nursing.

[email protected] AJN ▼ September 2003 ▼ Vol. 103, No. 9 63