Know the Standard of Care”

“Avoiding Malpractice: Know the Standard of Care”

Singh, Tracy L

To avoid malpractice, nurses must first understand what Malpractice really is. In general, malpractice is negligence by a professional. Negligence is perhaps the most prevalent tort claim filed in civil court today. Most cases routed in negligence involve some type of personal injury as a result of another person’s failure to use “ordinary care.” Ordinary care is the degree of care that a reasonable and prudent person would exercise under the same or similar circumstances, Palsgraf v. Long Island Railroad Do., 1928. To establish a claim of ordinary negligence, a plaintiff must show that the defendant owed the plaintiff a duty, that he or she breached that duty, plus causation and damages.

In the health care setting, to establish a claim of malpractice against a nurse, the patient must demonstrate that the nurse owed the patient a duty, that the nurse breached that duty, that the nurse’s breach of duty caused harm to the patient, and that the patient suffered actual damages as a result. As with ordinary negligence, all four of these elements must be demonstrated to succeed in a case of malpractice against a nurse. The key difference is that a nurse will be held to a higher standard than that of “ordinary care.”

Nurses Owe a Duty to their Patients

The duty nurses owe to their patients arises out of the nurse-patient relationship. Once a nurse-patient relationship is formed, the nurse owes a duty to “take care” of the patient. At first glance, this seems simple enough. For example, when a nurse cares for a patient in the hospital, the nurse-patient relationship is obviously formed. However, when exactly does a relationship begin or duties arise? Is it when nurses agree to work a particular shift or take a particular assignment; when they show up for work, when they arrive at their unit, or to the patient’s home; after the nurse receives report; after the nurse reviews the chart; when the nurse first meets the patient; once the nurse assesses the patient? What if the patient is out of the room when the nurse’s shift begins? What if the patient has already been discharged and is merely waiting for a ride home? What if the nurse answers someone else’s call light? What about the nurse who simply answers a patient’s questions over the telephone? Depending on the circumstances, even this first element, whether a duty exists, may be disputed.

Breach of Duty: Falling below the Standard of Care

Once a nurse-patient relationship is formed, a nurse owes a duty to his or her patient. The duty in malpractice claims is the duty not to fall below the standard of care when providing nursing care to patients. In other words, a nurse must act as a reasonable and prudent nurse would under similar conditions and circumstances. Nurses with a higher level of skills or education will be expected to use their higher skills and knowledge when providing patient care.

This is the most important element in establishing or defending a claim for malpractice against a nurse. It is perhaps the one key area where nurses may avoid malpractice by doing their homework in advance. No matter what positions nurses hold, what locations they work in, or what types of nursing they practice, nurses must be aware of what the standard of care is to avoid committing malpractice.

Plaintiffs will attempt to establish the standard of care for the practice of nursing in a number of ways. In most cases, expert testimony will be required to establish and defend claims of malpractice by having other nurses testify to the generally accepted practice of nursing in a particular set of circumstances. Plaintiffs will also establish the standard of nursing care by evaluating several written sources including the employer’s policies and procedures or job descriptions, published guidelines by various nursing associations (for example, the American Nurses Association) and regulatory establishments (such as the Joint Commission on Accreditation of Healthcare Organizations or JCAHO) as well as the Nurse Practice Act provided by the state, just to name a few.

It is important for nurses to be cognizant of the fact that the Nurse Practice Act is a codified set of rules and regulations which nurses are expected to know and follow. The Nurse Practice Act dictates how nurses should behave (ie. Professional conduct) and the scope of practice nurses should adhere to. It is a set of standards which should not be violated. Violating the Nurse Practice Act not only opens the door to malpractice claims, but also puts nurses at risk for losing their professional licenses.

Incidentally, nurses should also keep in mind that the Nurse Practice Act is subject to change by the state legislature during each legislative session. Therefore, nurses should review their state’s Nurse Practice Act periodically to ensure they are up to date and continue working within their scope of practice.

A facility’s job descriptions and policy and procedure manuals may also be used to establish the standard of care for nurses. Most facilities have numerous manuals available for nurses which provide detailed instructions on how to perform a variety of nursing tasks. However, most nurses rarely take the time to review these documents either because they are already familiar with how to perform such tasks or because they were instructed by other nurses and do not feel the need to read more on the subject. Most nurses do not realize that if and when a nurse has been accused of malpractice, these manuals could be used by patients as a tool to establish what the standard of care should have been.

When nurses fail to adhere to a facility’s policies and procedures, it will not be difficult to establish that the nurse has fallen below the standard of care. Therefore, nurses should review the policies and procedures available to them periodically. If there is a conflict between how the manual states a procedure should be done and how procedures are actually performed, nurses should alert their supervisor for clarification and/or seek correction of the manuals to avoid miscommunication and potential claims.

Additionally, nurses must be aware that the Nurse Practice Act will establish the boundaries for the scope of practice for all levels of nursing. (CNA, LPN, RN, APN, etc.) If a particular facility has a policy which appears to exceed the scope of practice allowed by the state’s Nurse Practice Act, nurses must follow the state law. For example, nurses who work outside the scope of practice under the direction of a physician will not be protected from disciplinary action by the State Board of Nursing or from potential malpractice claims. This is an important distinction in Nevada as many practitioners are under the false impression that nurses will be protected as long as they receive direction and instructions directly from a physician. While this may be true for medical assistants (MAs) or physician’s assistants (PAs), this is not true for CNAs, LPNs, or RNs. Even advanced practitioners (APNs) must adhere to their scope of practice, regardless of what a physician requests of them or they will be subject to discipline and other claims.

Causation and Damages

It is not enough to establish that a nurse owes a duty to a patient or that a nurse has breached his or her duty of care. To establish a claim for malpractice, plaintiffs must also show that the breach of this duty was the cause of some type of harm to the patient. In other words, the nurses’ breach of duty, or failure to meet the standard of care, must be linked to the particular harm sustained by the patient to satisfy the causation element of a malpractice claim.

Typical damages claimed in malpractice claims are economical, physical or emotional in nature. They must however, be measurable and demonstrable to be considered. For example, just because a nurse forgets to give a patient their medication or even gives the wrong medication, does not mean he or she is guilty of malpractice. The nurses’ mistake must have caused actual damages or harm to the patient.

While it may seem difficult to establish a malpractice claim against a nurse, once the patient establishes that he or she was injured and that a nurse fell below the standard of care, it is the nurse who must work hard to defend his or her actions. Knowing what the standard of care is before an incident occurs may help to avoid malpractice claims and will certainly be less stressful and time consuming than defending a lawsuit.

Conclusion

In most cases, nurses are well trained to properly care for their patients. Unfortunately, many nurses have never taken the time to read their Nurse Practice Act, their job description, their employer’s policy and procedure manuals, or any of the numerous regulatory guidelines and advisory opinions that are available to them. However, when nurses fail to practice within the standard of care, these are the very materials that will likely become the patients’ primary resource for establishing a claim of malpractice against them.

Therefore, to avoid malpractice claims, nurses must first know what the standard of care is, and do their best to practice within those boundaries. As in other areas of life, ignorance is not an excuse. For example, not knowing that it is illegal to drive into a cross walk before a pedestrian reaches the other side of the road will not prevent you from receiving a citation. Not knowing what the standard of care is in your community or facility will not protect you from claims of malpractice or disciplinary action from the State Board of Nursing. Therefore, all nurses are advised to take a proactive approach by taking the time to familiarize themselves with the relevant rules, regulations, restrictions, guidelines, policies and procedures that directly affect their nursing practice.

For questions or comments, you may contact Tracy L. Singh directly by calling (702) 444-5520 or via email at tsingh@tlsinghlaw.com.

by: Tracy L. Singh, RN, JD

Copyright Nevada Nurses Association Feb 2006

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