According to the National Council of State Boards of Nursing the number of disciplinary actions for practice related issues such as failure to assess or intervene, documentation errors and medication errors for RNs has risen significantly in the last five years. Nurses should be concerned about medical malpractice because nurses are held liable for their own negligence and could find themselves being sued for malpractice.

Elements of Medical Malpractice

Medical malpractice can be generally defined as negligence on the part of a physician, nurse, EMT, hospital or other health care professional which causes physical or emotional damage to a patient under their care. This includes failure to diagnose an illness in a timely professional manner, surgical mistakes, mistakes in the delivery of a child, mistakes with medications, or causing any loss or injury by not performing professionally. Medical malpractice is limited to negligence which occurs in the course of medical or health care, and the basic legal issues involved in medical malpractice are the same as the legal elements in common negligence.

Four key elements of a medical malpractice case:

Standard of Care: Generally, standard of care is defined as the care a reasonable, careful or prudent health care practitioner would provide in similar circumstances. Hospitals, nurse practice acts, state boards of nursing, and nursing departments generally have established standards of care and policies and procedures that guide nurses and ancillary staff in nearly all patient care situations. Nursing Care Plans help nurses define the most commonly encountered clinical problems and its symptoms, then offer guidelines for performing ongoing assessment and therapeutic interventions. Care Plans assist the nurse in the development, deliverance, and documentation of patient care in order to help nurses adhere to the most current practice and professional standards in nursing.

Mistakes include a range of examples, including:

--Failing to assess serious changes in patient condition, such as failure to check neurological status, vital signs, or blood glucose levels on time.

--Failure to take appropriate action or notify physician when significant changes in patient condition are noted.

--Medication errors, or documentation errors.

--Misusing a medical device or implant.

--Failing to get informed consent from a patient.

--Failing to perform a procedure .

In order to prove medical malpractice, the plaintiff needs to prove that the care received did not meet the standard of care for medical professionals under similar circumstances. Breach of that standard of care occurs when someone deviates from that standard of care.

If the nurse successfully demonstrates that he/she has met an acceptable standard of care, then there is no malpractice.

Remember what your nursing instructors always used to say, "If you didn't document it, it didn't happen!" - in other words proper documentation can be your best defense!

Duty: This is generally the most straight forward element to prove in a medical malpractice case. Once a nurse accepts report and assigned patients the nurse has agreed to care for those patients. By accepting the assigned patients the nurse has assumed a duty to treat the patient with that degree of skill, care, and diligence possessed or exercised by competent and careful nurses. One situation that provides exemption from "duty" would be care provided in a situation covered by Good Samaritan Statutes.

Legal Causation: Legal Causation is the second major hurdle that must be overcome for a successful malpractice plaintiff. The plaintiff must establish that had standards of care been followed, the injury or damages to the patient would have been avoided. A legal cause of action for negligence usually exists when it is determined that the breach of the standard of care proximately caused damages, usually physical or emotional in nature to the victim.

Damages: Was unreasonable, careless or inappropriate behavior on the part of the nurse, hospital or other health care provider the proximate cause of injury or damages to the patient or client? Substantial injuries caused by breach of the standards of care that satisfy the "damages" element of a medical malpractice claim include:

- Death
- Disability
- Deformity
- Additional hospitalization or surgery to correct a medical error
- Severe and prolonged pain

Remember that medical errors can happen during even the most routine tasks, such as when a hospital patient is given a the wrong diet. Staffing shortages or patient overload does not relieve you of your responsibilities to manage each and every aspect of care for your patients! If you believe you are being assigned more patients than you can care for safely during your shift voice your objections to your charge nurse and nursing supervisor! Once you accept the patient load you assume the legal duty for their care. Keep these elements of malpractice in mind and be sure you can meet the standards of care for your nursing specialty before accepting your patient assignment.

Nurses would be advised to carry their own professional liability insurance rather than rely on their employer's umbrella policy to protect them in case of a malpractice suit. Never expect your employer's interests in the case of a lawsuit to be the same as yours!