An Overview of Nursing Liability

July 1, 2014 | Healthcare Risk, Quality, & Safety Guidance


Nurses perform a variety of actions during the care of patients, and their ability to perform the necessary tasks is dependent on education, experience, specialty, and role within the healthcare organization. To understand nursing liability, it is important to understand the common terms used in these cases (see “Legal Terminology”) and the requirements of malpractice.

Plaintiffs must prove four elements to support a negligence allegation: (1) that the defendant had a duty to the patient, (2) that the defendant breached that duty, (3) that the plaintiff was injured, and (4) that the defendant’s breach of duty led to the injury. For more details on the elements of a tort liability claim, see the Risk Analysis Principles of Tort Liability.

When a lawsuit alleging nursing negligence goes to a jury trial, jurors are asked to measure a defendant nurse’s actions against those of a reasonably well-qualified and prudent nurse in the same or similar circumstances. Most lawsuits involving nursing care allege that nurses provided “negligent” care to the plaintiff (i.e., that the care provided fell below accepted standards of nursing practice). Nurses should be aware that the intention to cause harm is not required to establish a claim for negligent care. Standards of nursing care are the minimum criteria for nursing proficiency on the job; nursing standards and applicable laws and regulations will be discussed in more detail in the Regulations and Standards section.

The scope of nursing care is wide ranging, encompassing the emergency department (ED), operating room, recovery room, patient’s bedside, outpatient clinic, labor and delivery suite, physician office practice setting, nursing home, and rehabilitation center, among other care settings in which nurses provide professional services. Nurses may be held independently liable or liable jointly with other providers. Consider the following case example in which the jury exonerated the physician from liability and concluded that the nurses and the hospital were negligent (Ciavaglia and Schroeder; Zimmerman):

A Pennsylvania jury found that a hospital and two nurses were negligent when the nurses failed to properly count the surgical sponges used inside a patient who had undergone a cesarean section, leaving one sponge behind and causing multiple complications. According to hospital policy, sponges are to be counted by two nurses as they are opened before the procedure, before the uterus is closed, and after the fascia is closed. The nurses testified that they confirmed the sponge count as accurate three times before the procedure was completed.

*The physician who performed the cesarean section was not found liable. He testified that he depended on the nurses to accurately count the sponges before he closed the patient’s abdomen. The nurses acknowledged responsibility for counting the sponges but unsuccessfully argued that the physician was equally responsible for the error because he was “in charge.” After the surgery, the patient made numerous complaints of pain in her abdomen to the physician during office visits and telephone calls, but he could not find a source for the pain and attributed it to “normal” postoperative pain. A few months later, the physician referred the patient to her primary care doctor to evaluate the pain. ...

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