Do I Have a Nursing Malpractice Case?

In the eyes of the law, nurses are the same as other medical professionals. A nurse who acts carelessly is negligent. When a nurse is negligent and the patient is injured as a result, the law calls that nursing malpractice.

We'll take you through the elements of a nursing malpractice claim, examining what you must prove to succeed. Along the way, we'll have a look at a few of the most common kinds of nursing malpractice. We'll also see who, in addition to the nurse, can be on the hook when nursing negligence causes injuries.

The Elements of a Nursing Malpractice Claim

The elements of a nursing malpractice claim are the same as the elements of any medical malpractice claim. Negligence is the foundation of a malpractice case. Proving negligence means:

• showing the applicable standard of care, and
• proving how the nurse failed to meet that standard of care.

Once you've proved that the nurse was negligent, you'll need proof that:

• you suffered an injury, and
• the nurse's negligence caused your injury.

The Nursing Standard of Care

The standard of care tells us what the nurse you're suing (the "defendant") should have done to provide appropriate care. A nurse must use at least the same level of care and skill as a reasonably careful nurse with similar education and training would use under similar circumstances. Stated simply, the standard of care says: Do what a reasonably careful nurse would do in the same situation.

The standard of care doesn't guarantee perfect, or error-free, nursing care. It requires that a nurse must practice as a reasonably careful, similarly educated nurse would practice under the circumstances. Mistakes happen even with the best of care, especially in medically-complicated situations involving difficult patients.

Failure to Meet the Standard of Care

Having established the applicable standard of care, you'll need to show how the defendant failed to meet—or "breached"—that standard. Here, the question is: What did the nurse do wrong? These are a few of the most common ways a nurse might breach the standard of care.

Failing to Supervise a Patient

Some patients—especially those with cognitive impairments and severe emotional disabilities—require regular, careful supervision. When a lack of appropriate supervision leads to patient harm, that's probably a breach of the standard of care.

Failure to Monitor or Report a Patient's Condition

The standard of care requires a nurse to:

• monitor a patient's condition, and
• report findings of concern to the responsible physician.

If a nurse fails to notice a problem or notices a problem but fails to report it, the nurse might be negligent.

Medication Errors

Medication errors are among the most common of all nursing mistakes. They include:

• failing to give medication as prescribed
• giving a patient the wrong medicine
• giving a patient the wrong dose of the correct medicine, and
• administering the correct medicine the wrong way.

You Were Injured

A viable malpractice claim—nursing or otherwise—requires proof of an injury. Maybe an unsupervised patient got out of bed, fell, and suffered a skull fracture. Or an adverse reaction to the wrong medication caused a patient to bleed internally.

The key to this element is proving that the patient is worse off after receiving substandard nursing care than they were before. Without significant injuries, you'll probably have a hard time finding a lawyer to take your nursing malpractice case.

Nursing Negligence Caused Your Injury

The final element is called "causation." This element requires proof that the nursing negligence caused your injury. Many times, causation follows from proof of negligent nursing care and injury. But in some cases, proving causation will be a challenge.

Who's Responsible for Nursing Malpractice?

A key issue in many nursing malpractice cases is who—in addition to the nurse—might be responsible for the nurse's negligence. Typically, there are two possibilities: The nurse's employer and the attending doctor.

The Nurse's Employer

The nurse's employer—a hospital, nursing home, or clinic, for instance—can be held liable for a nurse's malpractice if:

• the nurse was an employee of the facility
• the nurse was performing a job duty when the patient was injured, and
• an independent doctor (that is, one not employed by the facility) wasn't supervising the nurse.

Because most nurses are employed by the facility where they work, those facilities often get sued in nursing malpractice cases.

The Attending Doctor

When an attending doctor is supervising the nurse, the nurse's employer might be off the hook. Whether the nurse is being supervised by a doctor when the negligence happens depends in part on whether the doctor:

• was present, and
• had the authority to prevent the nurse's negligence.

Sometimes Both Are Liable

Even if a doctor was supervising the nurse, the nurse's employer might be legally responsible, too. This can happen, for instance, if the doctor gave improper orders—which the nurse should have known were improper—but the nurse followed them anyway.

Sorting Out Who's Responsible

In a typical nursing malpractice case, you'll sue the nurse, the nurse's employer, and any attending physician. Whether the doctor was present and had the authority to control the nurse are issues that the physician and the nurse's employer will sort out during the lawsuit.

The outcome doesn't change whether you can recover for the nurse's malpractice. It just determines who'll end up paying.

You'll Need Expert Testimony to Prove Your Case

In almost every nursing malpractice case, you'll need an expert witness nurse to prove the applicable standard of care. The expert must have similar education, training, and experience as the defendant. If the defendant practices a nursing specialty like pediatrics or critical care nursing, the expert must practice in or teach that specialty.

The expert will also need to testify about what the nurse did wrong—that is, how the nurse breached the standard of care. Finally, it'll be up to your expert to prove causation, tying the nurse's negligence to your injuries.

Get Help With Your Nursing Malpractice Case

Nursing malpractice cases can be every bit as technical and complicated as any other malpractice case. The nurse, the nurse's employer, and the attending physician will be represented by legal counsel, and you should be, too. Without an experienced lawyer on your side, your chances of success are slim.

Here's how to find an attorney in your area who understands nursing malpractice and is right for you and your case.