An allegation of negligence could be every healthcare professional’s worst nightmare. And for nurses who work hard providing patient care, the threat of negligence can haunt their day-to-day work. But what exactly is negligence in nursing? And how can you avoid being accused of it?
We’ll give you a deeper look at what exactly constitutes nursing negligence, share some real-life examples, and provide you with tips for how you can protect yourself while on the job.
What Is Negligence in Healthcare?
Negligence in healthcare is defined individually in each state. There is a common theme, however. In general, negligence in healthcare means practicing below the standard of care for a certain specialty, says Linda M. Stimmel, attorney with Wilson Elser Moskowitz Edelman & Dicker LLP, and co-chair of the firm’s national Medical Malpractice & Health Care practice.
“Negligence is an umbrella term, and professional malpractice is a specific form of negligence,” says registered nurse and attorney Edie Brous.
That is, negligence is a general standard applied to all people, while malpractice is a professional standard. Brous maintains that in healthcare, most cases are not general negligence but are, in fact, specific allegations of professional malpractice.
What Is Considered Negligence in Nursing?
Brous explains that there are five essential elements that must be proven in a lawsuit to establish negligence:
- Duty: First, the plaintiff must prove that the healthcare provider owed them what is called a “duty of care.” In other words, the provider must have a legal obligation to the plaintiff, usually based on a special relationship like the patient/provider relationship.
- Breach: The plaintiff must prove that the provider breached that duty of care by failing to act as a reasonable person would have in the same or similar circumstances under professional standards of practice. This is sometimes referred to as “departure.”
- Causation: The plaintiff must prove that the injury suffered was caused by the provider’s breach of duty departure from generally accepted standards of practice.
- Harm: The plaintiff must demonstrate actual damages (i.e., physical or financial harm) as a consequence of the defendant’s departure from standards of care.
- Foreseeability: (Note: This only applies to negligence, not to professional malpractice.) The plaintiff must prove that a reasonable person of ordinary intelligence (based on the practice authority of the provider) in the same position as the provider would be able to predict the harmful consequences of the action or inaction.
For nurses specifically, negligence, as defined by the American Journal of Nursing, most often shows up in one of six ways:
- Failure to follow standards of care
- Failure to use equipment in a responsible manner
- Failure to communicate
- Failure to document
- Failure to assess and monitor
- Failure to act as a patient advocate
It’s important to note that patient injury doesn’t automatically mean that there was substandard care. There are many other factors that could lead to a patient’s illness or injury, such as adverse events (e.g., a storm causes a hospital to lose power, which results in a complete shutdown of the EHR system). Additionally, the International Journal of Medicine explains that the majority of patient injuries actually occur as a result of the inherent risk of medical practice or system errors and not provider negligence.
What’s the Difference Between Negligence & Malpractice?
Stimmel explains that in most cases, negligence and malpractice are considered to mean the same thing. That being said, in healthcare, one can be accused of negligence for specific procedures as opposed to an overall malpractice suit. For instance, a doctor could be found negligent for failing to follow up on a patient after surgery, but not be found guilty of malpractice for the actual surgical case.
Negligence in Nursing Examples
To illustrate what can constitute negligence in nursing, consider the following two real-life cases.
Case Study #1
The family of a deceased nursing home patient sued for negligence when the patient had demonstrated ulcers as a result of not being repositioned per policy, as well as a urinary infection as a direct result of not having his catheter properly cared for.
Case Study #2
A patient with a bronchial infection and numerous ongoing health concerns, including sleep apnea, had non-emergency eye surgery and died that night. The patient’s daughter filed a lawsuit against her mother’s three anesthesiologists, the attending surgeon, the ophthalmology fellow, the nurse anesthetist, and the nurse caring for her the evening after the surgery. The suit alleged both negligence and malpractice. The suit claimed that performing a non-emergency surgery while the patient had a respiratory infection was negligent. And failing to note the patient’s sleep apnea, which was not in her paperwork from the surgical team when she was transferred out of surgery, was malpractice.
Strategies To Help Avoid Negligence as a Nurse
In order to best protect yourself from becoming involved in allegations of negligence, Brous suggests nurses take the following steps.
1) Maintain your expertise.
This can be accomplished through strategies like taking continuing education courses, having active memberships in professional organizations, and subscribing to professional journals that keep you on top of your industry.
2) Adhere to organizational policies.
Know the policies and procedures of every facility in which you work, and don’t deviate from them. Avoid shortcuts.
3) Hone your interpersonal skills.
Good communication with patients and their families goes a long way and can often clear up certain assumptions and misunderstandings on both sides.
4) Document, document, document.
Documentation can be one of the easiest ways to reduce the likelihood of mistakes or misunderstandings, and Stimmel advises that every nurse should chart their actions, assessments, nursing diagnoses, and interventions “thoughtfully and accurately.” Chart in a manner that allows you to reconstruct an accurate sequence of events and can improve your patient assessments/interventions in the future. “Take a minute or two to think about what you intend to chart before entering the information,” she says. “There will be significantly fewer omissions and mistakes.”