Liability theories in nursing negligence cases.

If a nurse believes a physician is not responding appropriately to a patient's condition, the nurse must notify the next person in the chain of medical command.

Medical malpractice claims that named nurses as defendants increased substantially from 1976 to 1987, according to a study published in 1990 by the Risk Management Foundation of the Harvard Medical Institutions.(1)

Another study examined malpractice claims filed from 1988 through 1993. In 747 cases, nursing negligence in hospitals caused or contributed to negative patient outcomes and resulted in a plaintiff's verdict or settlement. Of these cases, nursing negligence caused or contributed to 219 deaths. Of these, inadequate communication by a nurse to a physician accounted for 76 deaths; inadequate patient assessment, 46 deaths; medication administration errors, 42 deaths; inadequate nursing intervention, 17 deaths; inadequate care, 21 deaths; unsafe environment, 7 deaths; inadequate infection control, 3 deaths; and improper use of equipment and products, 7 deaths.(2)

Nurses must be licensed by a state to deliver patient care. A state regulatory board, usually the state board of nursing, oversees the licensure and delivery of nursing health care. Each state has a Norse Practice Act, which sets forth various regulations for nurses. These address patient assessment, treatment plans, and patient counseling.

There are various classes of nurses. Licensed practical nurses (LPNs) complete a one-year program, which focuses on direct care activities such as assisting patients with meals and faking vital signs. LPNs generally work under the supervision of licensed physicians or dentists or registered or advanced practice nurses. In most states, LPNs can participate in assessing patients' health and implementing the health care plan under the supervision of authorized health care professionals.(3) An LPN's license generally must be renewed every two years.

Registered nurses must also pass a state licensing exam. To be eligible to take the exam, they must complete a two-year associate degree program, a two-to-three-year diploma program, or a four-to-five-year baccalaureate degree program.

Donna Miller-Slade, an associate with Faison & Gillespie in Durham, North Carolina, is also a registered nurse and an advanced practice nurse.

Associate degree and baccalaureate programs take place in a college setting. A diploma program takes place in a hospital. The associate-degree and diploma programs emphasize clinical practice. The baccalaureate program consists of two years of liberal arts studies and two years of nursing studies. These programs emphasize managerial skills for supervisory positions.

Advanced practice nurses, also known as physician extenders, include certified nurse midwives, nurse practitioners, and certified registered nurse anesthetists. These nurses undergo intense advanced study in a specific area such as obstetrics or anesthesiology. A master's degree in nursing is generally a prerequisite to certification.

States usually require separate licensure or certification for advanced practice nurses. They may be authorized to prescribe medications, suture lacerations, perform independent physical examinations, and provide pre- and postnatal care. Because of their increased duties, these nurses are often regulated by both the state board of nursing and the medical licensing board. They may be held to the standard of care expected of a physician when performing an act that overlaps with medical practice, such as prescribing medication.

Nursing functions

Nurses perform independent and dependent functions. Independent functions allow and may require a nurse to initiate specific nursing interventions. These include assessing a patient's condition and educating patients about proper care after being discharged from a hospital.

Although the frequency with which patients are to be assessed is usually set forth in a hospital's policy and procedure manual, nurses are required to exercise their own judgment. For example, a manual may require a nurse to take a patient's temperature every eight hours. If the nurse discovers a patient's temperature is substantially above normal, however, he or she may take temperature readings more often.

Dependent nursing functions may not be carried out unless a physician or other individual higher than the nurse in the chain of command orders the action. For example, before registered nurses or LPNs can administer medication to a patient, a health care provider licensed to prescribe medication must give an order that identifies the medication, its dosage, and the time and route of administration. A nurse may not administer a medication unless these parameters are identified.

Establishing duty

As in any negligence action, the plaintiff must show that the defendant breached a duty of care to the plaintiff and that this breach was the proximate cause of the plaintiffs injury. To show a duty existed, counsel must first identify the type of nurse involved. Then, counsel must review the state Nurse Practice Act, as well as regulations promulgated by voluntary nursing and other health care organizations.

Voluntary nursing organizations often delineate minimum standards of practice. For example, the Association for Women's Health, Obstetrical, and Neonatal Nursing identifies minimum skill and educational requirements for nurses who provide obstetrical, neonatal, and gynecological care.(4) The American Society for Post-Anesthesia Nursing provides standards for recovery room nurses. Another voluntary organization, the Joint Commission on the Accreditation for Healthcare, sets forth standards for healthcare institutions to follow.(5)

Other helpful resources are job descriptions and procedure manuals. Job descriptions set forth the standard of care for each class of hospital nurses. A hospital-wide job description is available for each class. Often, individual patient care units have their own job descriptions, which are more detailed. For example, an obstetrical unit may require nurses to evaluate the patient's labor and the fetus's condition.

Hospital policy and procedure manuals also delineate nurses' responsibilities. In addition to a general manual for the entire hospital, each care unit has its own manual.

Potential areas of liability

Following the chain of command. If a nurse believes a physician is not responding appropriately to a patient's condition, the nurse must notify the next person in the chain of command. This is generally set forth in an institutional policy.

For example, in Wingo v. Rockford Memorial Hospital, Donnico Wingo's membranes ruptured during her 36th week of pregnancy.(6) She was admitted to a hospital, where her amniotic fluid continued to leak. The attending nurse contacted her obstetrician, who ordered Wingo be discharged.

The following morning, Wingo resumed to the hospital and gave birth to her daughter, who was born in a severely depressed condition. She suffers from mental retardation, cerebral palsy, spastic quadriparesis, and blindness.

Wingo and her husband sued the hospital, among others, claiming the nurse should have prevented the discharge by using the hospital's chain of command.

Preventing injuries. A nurse has a duty to prevent injuries to patients. For example, in Ortega v. Public Health Trust of Dade County, Francisco Ortega was taken to a hospital emergency room after suffering a fractured pelvis and widening of his thoracic vertebrae in an automobile accident.(7) While he was in the intensive care unit, he was placed in a Roto rest bed--a bed that rotates patients from side to side to prevent pressure sores and urinary stasis. Patients are secured in the bed by straps.

A nurse and a technician changed Ortega's sheets. But they failed to secure the straps around his chess when they put him back in bed. When the bed was fumed on, Ortega fell out. Within 24 hours, he was rendered a paraplegic. He sued the hospital for the failure of its nurse and technician to properly secure the straps.

Monitoring patients' conditions. Nurses are responsible for monitoring their patients conditions. Failure to do so may constitute negligence.

In Dunlop v. Borushok, Kenneth Dunlop developed a blood clot in his right leg, which migrated to his lungs, causing respiratory distress.8 He was admitted to a hospital where he was diagnosed as having a pulmonary embolism and placed on the anticoagulant heparin.

After three days, Dunlop developed chest pain, shortness of breath, EKG changes, and an increased respiratory rate. Nursing staff diagnosed constipation, gas, and anxiety and administered antacids. About 11 hours later, a large embolism traveled to Dunlop's lungs, causing fatal respiratory arrest.

Dunlop's parents sued the hospital, among others, on Kenneth's behalf. They alleged that his nurses had failed to properly monitor his condition. Communicating information to physicians. Nurses have a duty to communicate relevant data about a patient to the treating physician. In Ramsey v. Physicians Memorial Hospital, the parents of Ernest Ramsey, who died of Rocky Mountain spotted fever, sued a hospital, alleging, among other claims, that an emergency room nurse had failed to report to the treating physician that Ramsey's mother had removed two ticks from her son before bringing him to the emergency room.(9) A jury found that Ramsey's death was proximately caused by the nurse's failure to communicate significant data to the physician. An appellate court affirmed.

In Washington v. New York City Health and Hospitals Corp., Venice Washington went to a hospital for the birth of her first child.(10) A fetal monitor was attached for 30 minutes; two hours later it was reattached. The monitor showed signs of serious fetal distress. The infant was delivered. He suffered cerebral palsy, partial paralysis of his right side, and a low IQ. His parents sued the hospital, alleging nurses had failed to inform the physician that the fetal monitor showed signs of fetal distress.

Also, in Anderson v. Brister, a family practitioner and a physician's assistant treated Ryan Anderson, 11, for a sinus infection over a six-week period.(11) When the boy's condition worsened, he was admitted to a hospital where he became comatose, suffered seizures, and lost his eyesight. he was then sent to a children's hospital, where a brain abscess was diagnosed.

His parents sued the hospital and several of its nurses, alleging failure to timely recognize and report Anderson's deteriorating neurological status and to perform a complete neurological assessment of the boy.

Following physicians' orders. Nurses may be liable for failing to properly follow a doctor's orders for a patient. For example, in Lind v. Comprehensive Health Care of Ohio, Inc., Lenore Lind went to an emergency room complaining of pneumonia symptoms.(12) She remained on a ventilator for almost two weeks. An internist took her off the ventilator with instructions that no sedatives be administered. That night, nurses gave her two injections of Demerol. She subsequently suffered respiratory distress, resulting in brain damage. Lind, her husband, and their three children sued the hospital, among others, alleging its nurses had administered Demerol in direct contravention of the internist's orders.

Vicarious liability

Hospital nurses are generally considered employees of the institution. Although a nurse may be named as a defendant in a medical malpractice case, hospitals are generally sued directly and under respondeat superior for their nurses' negligence. Plaintiffs suing hospitals directly often allege negligent hiring, supervision, and retention of an incompetent nurse. To prove these claims, plaintiffs counsel should request the nurse's job performance evaluations. These are usually completed at least once a year and may show that the hospital knew the nurse was not properly performing his or her duties.

Experts

Expert testimony is generally essential for showing a nurse breached a duty of care. Generally, a nurse expert is used to establish the standard of care, although many courts accept a physician's testimony regarding the applicable standard of nursing care.

A nursing expert can rely on various sources to establish breach. The Nurse Practice Act provides general nursing responsibilities; professional nursing organizations often proscribe specific standards of practice for nurses in a particular setting. Job descriptions are also helpful, as well as hospital and unit procedures and protocols.

The nursing expert should be familiar with generally accepted nursing practice both in the nation and in the local community. As the move toward a national standard of care gains momentum, however, the local community standards become less important.

Lawsuits involving nursing negligence are on the rise. Plaintiff counsel's investigation of a potential nursing negligence case involves identifying the type of nurse involved and the appropriate standard of care as defined by state statutes and regulations, professional organizations' standards, job descriptions, and hospital policy and procedure manuals. Expert witness testimony is necessary to establish this standard of care and prove nursing negligence.

Notes

(1.) HARVARD MEDICAL PRACTICE STUDY, PATIENTS, DOCTORS, AND LAWYERS: MEDICAL INJURY, MALPRACTICE LITIGATION, AND PATIENT COMPENSATION IN NEWYORK (1990).

(2.) JANET PITTS BECKMAN, NURSING (1st ed. 1996).

(3.) N.C. GEN. STAT [sections]90-171.20(8)(a) defines the practice of nursing by a licensed practical nurse to include "[p]articipating in assessing the patient's physical and mental health including the patient's reaction to illnesses and treatment regimens."

(4.) This organization may be contacted by writing to AWHONN, 700 14th St., N.W., Ste. 600, Washington, DC 20005-2006.

(5.) Information regarding the relevant standards at issue may be obtained by writing to the Joint Commission on Accreditation of Healthcare Organizations, 1 Renaissance Blvd., Oakbrook Terrace, IL 60181.

(6.) No.92 L 345 (Ill., Winnebago County Cir. Ct. July 3, 1996).

(7.) No. 91-04089 (Fla., Dade County Cir. Ct. June 5, 1995).

(8.) No. 92-11049(02) (Fla., Broward County Cir. Ct. July 17, 1996).

(9.) 373 A.2d 26, 30 (Md. Ct. Spec. App. 1977).

(10.) No. 8606/89 (N.Y., Bronx County Sup. Ct. Oct. 21, 1995).

(11.) No. 95-03-03995 (Tex., Comanche County Dist. Ct. Nov. 14, 1996).

(12.) No. 93 CV110798 (Ohio, Lorain County C.C.R May 31, 1995).