What Is Nursing Malpractice? Guide for Nurses
What happens if you accidentally give 10mLs of insulin when you meant to give 10 units? What about if a physician gives you a verbal order and you accidentally enter it on the wrong patient’s EHR? You’ve likely seen stories like these on the news or heard of them from peers. Maybe you’ve experienced a few close calls yourself. Would these be considered cases of nursing malpractice or innocent mistakes? Let’s go over what malpractice in nursing is, and how to protect your license.
Nurses and Medical Malpractice
The concept of medical malpractice has existed since ancient Rome. Today, about 20,000 medical malpractice lawsuits are filed each year. Nursing malpractice happens when a nurse doesn’t meet the expected standard of care and causes harm to a patient. This could involve actions taken or not taken by a nurse that another reasonably competent nurse would have done differently.
Not every mistake or bad outcome you experience is medical malpractice. A nurse who administers blood per protocol is not at fault if a patient has an adverse reaction. This nurse did what any other competent nurse would have done in the same situation.
Additionally, many mistakes in medical settings don’t lead to patient harm. For example, if you’re about to administer blood products and notice a typing mismatch during blood verification, you’ve prevented a potential reaction. Reporting these near misses can help improve patient safety and prevent harmful errors.
Malpractice vs. Negligence in Nursing
The terms negligence and malpractice can sometimes be used interchangeably, but they’re not the same. Both involve a failure to meet a standard of care, but the key differences lie in intent and professional responsibility.
Negligence is a failure to exercise the care that a reasonable person would in similar circumstances, but it doesn’t necessarily involve a professional duty. For example, if someone slips on a wet floor in a hospital because there is no warning sign, they could sue the hospital for negligence.
Malpractice, on the other hand, is a type of negligence that specifically applies to professionals, such as nurses and doctors. It occurs when a healthcare professional breaches the expectations of their role. If a nurse gives the wrong medication and the patient dies as a result, this could be considered malpractice because the nurse failed to perform the necessary medication administration checks.
Nursing Malpractice Examples
Malpractice in nursing can be impacted by the nursing shortage, technological advancements, and the continued need for delegation. For instance, in a short-staffed facility, it’s not difficult to see how a nurse with an unmanageable number of patients might not be able to provide the level of care he or she is capable of. And when the nurse-to-patient ratio is stretched thin, there may be little time to properly train clinical staff on a new software system, leading to misuse and confusion.
Here are some of the most common reasons nurses are sued for malpractice, and an example for each:
- Medication errors: A nurse administers the wrong dosage of a medication, leading to an overdose and causing significant harm.
- Failing to follow orders: A provider orders STAT blood cultures, and the nurse fails to collect them within the protocol time frame. This results in worsening infection for the patient.
- Not recognizing an erroneous order: The nurse notices that a medication is ordered in a higher amount than usual, but gives it anyway without requesting clarification. The patient’s status worsens and they are transferred to the ICU.
- Practicing outside of the nursing scope of practice: A nurse notices a large pustule on a patient’s arm and decides to perform an incision and drainage without notifying the physician. The patient develops nerve pain resulting from tissue damage at the site.
- Inadequate patient assessment and monitoring: A nurse does not perform a thorough assessment of a patient who is experiencing chest pain, delaying the diagnosis and treatment of a heart attack.
- Poor communication with the healthcare team: A nurse fails to document and communicate a patient’s allergy to a specific medication, leading to its administration and causing an allergic reaction.
- Improper delegation: A nurse asks a CNA to insert an IV and administer Phenergan to a patient. The IV site extravasates and the patient’s arm must be amputated.
Know Before Your Next Shift: Essential Elements of Nursing Malpractice Suits
Having a suit against you can majorly impact your wallet and your life — one report by the Nursing Services Organization found that the average cost of an RN’s malpractice claim is $210,513, and more than half of matters referred to a state board of nursing resulted in actions against nursing licenses.
Malpractice suits begin as civil lawsuits, and they can be filed by hospitals, patients, or patients’ family members. They can be filed against nurses in any care setting, but they’re more common in some areas. Here are some of the areas where nurses are at higher risk of being sued:
- Home healthcare
- Med-surg
- Gerontology
- Emergency/urgent care
When a nurse is sued for malpractice, it’s up to the claimant’s lawyers to prove that malpractice occurred. Medical malpractice can be proven with evidence of four main elements:
- Duty: This is the legal obligation of the nurse to provide care within standards set by the Nurse Practice Act and the nursing scope of practice, among other professional duties. For example, a nurse assigned to a patient with diabetes has a duty to monitor the patient’s blood sugar levels regularly.
- Breach of duty: A breach happens when a nurse fails to perform their duties. This includes failing to do something or doing a task incorrectly and is sometimes also called gross negligence. For example, if a nurse administers penicillin to a patient with a documented penicillin allergy, this could be considered a breach of duty.
- Causation: The breach of duty must be directly linked to patient harm. If a post-surgical patient develops an infection after the scrub nurse fails to follow proper sterile technique, there may be evidence to establish that the nurse’s actions had some role in causing the infection.
- Damages: How can the harm caused to the patient be compensated? Harm may include hospital bills, pain, physical or mental impairment, or something else. Sometimes claimants pursue damages in the form of financial compensation or an apology from the clinician.
Another term to be aware of is respondeat superior. This means that employers are responsible for tasks that employees perform within the scope of their job. Hospitals and major healthcare employers carry their own malpractice insurance to cover malpractice suits. However, nurses can still get wrapped up in legal action, even when they follow standards of care. Holding malpractice nursing insurance may help you protect your license.
It’s important to note that malpractice suits are separate from disciplinary actions taken by boards of nursing (BON), and depending on the claim, there may also be a criminal case. For example, if a patient’s daughter successfully files a suit claiming a nurse diverted their mother’s hydrocodone, this will be reported to the BON for an independent review. The nurse may also face criminal charges and jail time.
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Legal Disclaimer: This article contains general legal information, but it is not intended to constitute professional legal advice for any particular situation and should not be relied on as professional legal advice. Any references to the law may not be current, as laws regularly change through updates in legislation, regulation, and case law at the federal and state level. Nothing in this article should be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed to practice in your jurisdiction.