Sued for Malpractice: A Guide for Nurses and NPs
The content of this guide is provided for informational purposes only. It is not intended as legal advice.
It was a routine cesarean delivery. Before the obstetrician closed the site, two nurses took a surgical sponge count and confirmed: all sponges were accounted for. The site was closed.
Months later, the patient complained of tenderness in the abdominal area. A CT eventually revealed a sponge that had been retained during the operation. The plaintiff charged two nurses and an obstetrician with negligence, which led to the hospital settling for $159,000 (“Post-cesarean surgery complaints overlooked.” Clinician Reviews, Vol. 18, No. 8, 2008, p.7+).
Even the most seasoned, competent health professionals make mistakes. But when mistakes result in injury, it can lead to a nurse’s or nurse practitioner’s worst nightmare: being sued for malpractice.
As an RN or registered nurse practitioner, you must prepare now for this future possibility. This article will answer your questions:
- What is medical malpractice?
- What are some first steps you can take if you are sued?
- What can you expect during the lawsuit process?
- How do you decrease the chance of claims?
- What steps can you take right now to prepare yourself in case of a lawsuit?
Don’t be caught unprepared. The following information, curated from researchers, attorneys, and medical personnel, may equip you in the unfortunate case of a malpractice lawsuit.
Medical News Today defines the term as such:
“Medical malpractice occurs when a health care professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient.”
A patient or patient’s family may sue a medical provider if they feel that harm or death is caused not by unpreventable circumstances, but by medical error. This happens more often than you might think: An alarming study from Johns Hopkins School of Medicine calculates medical error as the third leading cause of death in the U.S.
Examples of Errors
According to one study, these are the nine most common medical errors in the United States:
- Adverse drug events
- Catheter-associated urinary tract infection (CAUTI)
- Central-line associated bloodstream infection (CLABSI)
- Injuries from falls and immobility
- Obstetrical adverse events
- Pressure ulcers
- Surgical site infections (SSI)
- Venous thrombosis (blood clots)
- Ventilator-assisted pneumonia (VAP)
The errors listed above don’t always result in malpractice claims as it can be difficult to determine which incidents result from unpreventable circumstances (like an unexpected allergic reaction to a medication) or from negligence (like failing to check a patient’s chart for allergies to that medication).
Examples of Claims
However, certain types of errors are more likely than others to result in malpractice claims, including:
- Failure to follow standards of care (for example, not implementing a safety protocol to prevent falls or not following equipment procedure).
- Failure to communicate (for example, omitting crucial information when advising a patient or communicating patient data to a physician).
- Failure to document (for example, neglecting to note that a medication was administered, which results in another provider administering the dose again).
- Failure to assess and monitor (for example, not checking vitals at regular intervals in patients with a history of high blood pressure).
- Failure to advocate for patient (for example, believing that a physician’s order might harm a patient based on your assessment and failing to act accordingly).
Malpractice claims may also result from causing harm off-duty (these cases are usually protected by “Good Samaritan” laws), misusing abbreviations in patient charts, lacking cultural competence, and other actions.
Incident or Suit: First Steps
A patient or patient’s family accuses you of malpractice. What should you do? What should you avoid?
Your immediate actions may be crucial in determining the outcome of the case. Here’s what professionals say:
- Request an incident report form from your supervisor.
- Document everything while the incident is fresh.
- Notify your personal malpractice insurance provider right away. While an organization’s insurance may be able to protect you, your private RN professional liability insurance plan will assist you with the entire process for your peace of mind.
- Don’t wait to take action.
- Don’t talk to anyone about the incident except your lawyer even if you know you are innocent or feel the need to apologize or make amends. Your attorney is required to keep conversations confidential.
- Don’t panic. Why?
- Because most malpractice claims are dismissed. “[Some] studies have…found that a substantial proportion of claims are brought when the plaintiff is theoretically not entitled to compensation—in cases involving no medical injury and no demonstrable negligence on the defendant’s part” (Brennan et.al, “Relation between negligent adverse events and the outcomes of medical-malpractice litigation.” NEJM Boston Vol. 335, Iss. 26).
- Settling isn’t an admission of guilt. If a case is not dismissed by the court, the plaintiff may be open to settle the matter financially without pursuing further litigation. Your personal malpractice insurance carrier, if you have one, will often be able to pay settlements on your behalf. This may be helpful to resolve the issue without damaging your career or reputation.
What to Expect
You need to have a complete picture of the legal process—a notice being served, the investigation, the defense, and the possible results.
You or your organization may receive a letter from the plaintiff’s attorney. This may be a notice that a claim is being filed against you, or it may be a court summons.
It is essential to hire an attorney directly after receiving a notice. Your private insurance carrier will help you find an attorney that specializes in medical malpractices cases, if needed.
The “discovery” phase starts after the notice is given. The organization, attorneys, and judge may take the following steps to investigate and interpret the facts, often hiring third parties and experts:
- Evaluate the extent of the patient’s injury.
- Take statements from you, the patient or patient’s family, the attending physician, possible witnesses, and character references.
- Review charting and documentation leading up to the incident.
- Examine your incident report.
- Secure any medical equipment that was involved.
Findings in the “discovery” phase will be used to examine whether or not the incident meets these four criteria for negligence:
- Duty: The provider owed a legal duty to the patient.
- Breach: The provider breached that duty.
- Causation: The provider’s breach of duty was the cause of the perceived harm.
- Damages: The patient suffered harm.
These criteria help protect medical professionals from unfounded accusations.
Almost 4,000 years ago, King Hammurabi of Babylon composed a list of laws for his country and released this proclamation: “I have in Babylon…, in order to bespeak justice in the land, to settle all disputes, and heal all injuries, set up these my precious words…as king of righteousness.”
Hammurabi’s “precious words” didn’t neglect medical professionals. Law 218 states, “If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.”
Thankfully, consequences for medical negligence are more civil in the 21st century. Here are some possible results of a complaint, a claim, or a lawsuit:
- Leave of absence
- Payment of settlement costs (if the case is settled out of court)
- Payment of costs for damages (if a court rules that you are liable)
- Internal disciplinary measures between you and your organization
- Loss of job
- Temporary or permanent loss of license
- Jail time (this is rare)
Decrease Your Risk
While nothing can guarantee that you won’t make a medical error, you can take precautions to decrease your risk with these recommendations for nurses and nurse practitioners:
- Keep up with the latest trends in best practices for nursing and nurse practitioners. Take continuing education courses, read medical publications, and learn from experts in your specialty.
- Document everything that takes place while caring for the patient. Good charting takes time, but it can prove your innocence in case of a complaint.
- Make sure the patient or caregiver is informed of all treatment options and risks.
- Educate the patient or caregiver in post-discharge care.
It’s crucial to protect yourself legally in the future event of a malpractice lawsuit.
First, become acquainted with the insurance your organization provides. Ask to review a copy of the policy. What kinds of incidents are covered? What support does the policy provide during the process? In case the organization settles out-of-court with the plaintiff, what is the maximum amount the insurer will pay?
Your organization’s insurance policy may not always protect your specialty, provide you with adequate support, or pay expenses. “Malpractice insurance is one thing no nurse can afford to be without…There are two great myths when it comes to nurses and malpractice insurance. The first is that having your own liability policy will increase your chances of being sued. The second is that if you’re already covered by your employer, there’s simply no need to purchase a policy of your own” (Tammelleo. Malpractice insurance: for your protection. RN Vol. 60, Iss. 10 1997.)
If you want the best protection, make sure your insurance provider does the following:
- Specializes in nurse insurance and nurse practitioner insurance.
- Has extensive experience managing medical professional liability policies.
- Bases monthly premiums on your specialty, increasing affordability.
- Helps you find an attorney specializing in medical malpractice, if necessary.
- Protects your personal assets from being seized in case of a lawsuit.
- Pays claims on your behalf.
Malpractice, not Malice
Error, according to the Institute of Medicine in a report titled “To Err Is Human,” is “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim.” But the report isn’t out to “[point] fingers at caring health professionals who make honest mistakes.”
Besides the pitfalls of being human, the current healthcare system isn’t optimized to prevent error. Nurses and nurse practitioners experience occupational fatigue and facility policies are often full of obstacles and inefficiencies. Professionals may be afraid to file voluntary incident reports in case of repercussion.
Unless you are very lucky, you will make an error at some point in your medical career. This error may cause patient harm, which may lead to a lawsuit.
If this happens, it doesn’t mean you’re a bad nurse. You may feel guilty. You may question your ability to care for patients. You may feel attacked by accusations. This experience may be traumatic for you.
Prepare for the worst before it happens.