M54 AJN ▼ September 2003 ▼ Vol. 103, No. 9 http://www.nursingcenter.com

Nurses, Negligence,and Malpractice

An analysis based on morethan 250 cases against nurses.

ore and more nurses are being named defendants in malpractice lawsuits,according to the National Practitioner Data Bank (NPDB). From 1998 to2001, for instance, the number of malpractice payments made by nursesincreased from 253 to 413 (see Figure 1, page 55). The trend shows nosigns of stopping,1-3 despite efforts by nursing educators to inform nursesand student nurses of their legal and professional responsibilities and lim-itations. A charge of negligence against a nurse can arise from almost anyaction or failure to act that results in patient injury—most often, an unin-tentional failure to adhere to a standard of clinical practice—and maylead 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 ledto malpractice lawsuits against nurses, as well as the areas of nursingpractice named most frequently in the complaints. (This article does notaddress criminal cases arising from intentional acts, such as assault, bat-tery, or false imprisonment, for which nurses have been arrested andsometimes 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 reasonablyprudent and careful person would use under similar circumstances.”

Eileen M. Croke is assistant professor of nursing at California State University, Long Beach. Contact author: ecroke1@cs.com.

CE2Continuing Education

HOURS

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

ajn@lww.com AJN ▼ September 2003 ▼ Vol. 103, No. 9 55

 JCAHO defines malpractice as “improper or uneth-ical conduct or unreasonable lack of skill by a holderof a professional or official position; often applied tophysicians, dentists, lawyers, and public officers todenote negligent or unskillful performance of dutieswhen professional skills are obligatory. Malpracticeis a cause of action for which damages are allowed.” 4

Malpractice is defined variously under state nursepractice acts, institutional policies, and federal guide-lines such as JCAHO standards, all of which may betaken into consideration in court.

Several factors have contributed to the increase inthe number of malpractice cases against nurses.• Delegation. As a result of cost-containment efforts

in hospitals and HMOs, nurses are delegatingmore of their tasks to unlicensed assistive person-nel. Delegation of some of these tasks may be con-sidered negligence according to a given facility’sstandards of care or a state’s nurse practice act.

• Early discharge. Patients are being dischargedfrom hospitals at earlier stages of recovery andwith conditions requiring more acute and inten-sive nursing care.5 Nurses may be sued for notproviding care or not making referrals appropri-ate to the patient’s condition.

• The nursing shortage and hospital downsizinghave contributed to greater workloads fornurses, increasing the likelihood of error.

• Advances in technology  require nurses to haveknowledge of a variety of technologies’ capabili-ties, limitations, and safety features.

• Increased autonomy and responsibility of hospitalnurses in the exercise of advanced nursing skillshave also brought about greater risk of error andliability.

• Better-informed consumers are more likely to beaware of malpractice issues and to recognizeinsufficient or inappropriate care.

Note: Annual subtotals for 1990–1997 are unavailable.

Source: The National Practitioner Data Bank. [Web site.] 2003. www.npdb-hipdb.com/annualrpt.html.

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

1998 Year

   N  u  m

   b  e  r  o

   f   C   l  a   i  m  s

   P  a

   i   d

1999 2000 2001

139

68

2818

253

185

68

44

25

322

248

55

3522

360

236

85

55

37

413Nonspecialized RNs

Nurse anesthetists

Nurse midwives

Nurse practitioners

Totals

ajn@lww.com AJN ▼ September 2003 ▼ Vol. 103, No. 9 61

condition and provide acceptable postoperativecare: although they claimed they had reported thepatient’s elevated temperature and the conditionof the incision and drainage from it to the physi-cian on the day of discharge but had failed to doc-ument such a report; the expert also opined thatallowing Ms. Scoblic to be discharged with an ele-vated temperature and failing to provide Ms.Scoblic with discharge instructions about monitor-ing her temperature were examples of failing to actas patient advocate.

Although the hospital argued that the decision todischarge was a medical one, the hospital’s directorof nursing stated in her deposition that sometimes itis the nurse’s responsibility to question the physi-cian’s order, especially when there has been a signif-icant change in the patient’s condition. The directoralso confirmed the expert’s assertions that the nursehas a responsibility to independently evaluate the

patient’s condition, to bring her concerns to thephysician, and to appeal to other authorities if thenurse believes the physician’s decision is wrong.

The court accepted the hospital’s argument thatit’s a physician’s decision to discharge a patient and,therefore, that the hospital was an inappropriaterespondent to the suit. The state supreme court,however, ruled there was expert testimony in therecord showing that hospital nurses had a duty toattempt to delay Ms. Scoblic’s discharge, because of her changing symptoms that day, yet there was noevidence in the record that any nurse questioned ordisagreed with the physician’s decision to dischargeher. The court held that nurses have a duty to ques-tion a physician’s order if they think it is in thepatient’s best interest to do so and to delay dis-charge if they believe discharge deviates fromacceptable standards of care.19 In this case, the nurseneglected her role as advocate.

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 coronarycare units 3 (n = 9)

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 35Percentage