Posts Tagged ‘legal update’
Understanding the four elements of negligence are essential to evaluating a malpractice case. Since early American law was formed, negligence was considered a distinct tort in which a person was held subject to liability for carelessly causing harm to another. In order to prove negligence, a plaintiff is required to show each of the following:
- The defendant owed the plaintiff a specific duty.
- The defendant breached this duty.
- The plaintiff was harmed.
- The breach of duty caused the harm.
Some legal scholars also hold forth a fifth essential element: proximate cause, which is considered under the umbrella of the causation in the fourth element.
Negligence vs. Malpractice
The Joint Commission defines negligence as “failure to use such care as a reasonably prudent and careful person would use under similar circumstances.” Malpractice is defined as “improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory. Malpractice is a cause of action for which damages are allowed.”
Negligence is an unintentional tort, and the four elements above must be present. Malpractice goes one step further and refers to a tort committed by a professional acting in his or her professional capacity.
When a nurse or doctor is sued for malpractice, they are accused of negligence which harmed an individual in the course of his or her role as a medical professional. Defined in a nursing malpractice situation by the Black’s Law Dictionary, professional negligence is “the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.”
The NSO, which is the largest professional liability insurance provider for nurses, has examples of nursing malpractice legal case studies and subsequent verdicts for review. They range from a Foley catheter used incorrectly which caused a urethral tear, to failure to prevent decubitus ulcers. If you are interested in reading the case studies in full, click on the following links:
- Stubenrauch, James M. (2007). Malpractice vs. Negligence. AJN, American Journal of Nursing, 107(7), 63-63. Retrieved from Lippincott Nursing Center database: http://www.nursingcenter.com/journalarticle?Article_ID=727909
- Owen, David G. (2007) “The Five Elements of Negligence,” Hofstra Law Review: Vol. 35: Iss. 4, Article 1. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol35/iss4/1
- Ashley, Ruth C. (2003). Understanding Negligence. Critical Care Nurse, 23(5), 72-73. Retrieved from Critical Care Nurse database: http://ccn.aacnjournals.org/content/23/5/72.full
- (2015). Legal Case Studies. Retrieved October 8, 2015, from NSO website: http://www.nso.com/risk-education/individuals/legal-case-study/Nurse-Catheterization-for-lifehttp://www.nso.com/risk-education/individuals/legal-case-study/Nurse-Decubitus-ulcer-improperly-treated
- Black HC. Black’s Law Dictionary. 9th ed. St. Paul, Minn: West Publishing Company; 1998.