MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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Can I Sue Nurses For Medical Malpractice?

After a patient suffers a serious injury caused by medical mistakes, the victim may not be sure exactly who was responsible. Medical care in most hospitals, clinics, and care facilities involves multiple doctors, nurses, and other care providers. When a doctor was responsible for the injury, the patient can file a medical malpractice claim against the doctor. If the hospital was responsible for the damage, the hospital may also be liable to the injury victim. Are nurses also liable for damages in a medical malpractice lawsuit?

Nurses are medical professionals who are supposed to provide a standard of care. Deviating from the acceptable standard of care that causes an injury to the patient may be the basis for a malpractice claim. In most cases, the nurse is an employee of the hospital, which could make the hospital liable under vicarious liability. If you have questions about who can be sued in a medical malpractice claim, talk to an experienced medical malpractice law firm about your options. 

Medical Malpractice Claims Involving Nurses

Medical malpractice claims generally start with the common law issue of negligence. When another person suffers an injury caused by the negligence of another, the negligent party is generally liable to pay for damages. Negligence is the breach of a duty of care that causes injury and damage to another. In a personal injury lawsuit, the injury victim has to show: 

  1. The defendant owed the plaintiff a duty of care;
  2. The defendant breached their duty of care; 
  3. The breach caused the plaintiff’s injury; and
  4. The plaintiff suffered damage as a result. 

When a nurse treats a patient, the nurse owes the patient a duty of care. The duty of care is like that of what a reasonable nurse would do under similar circumstances. If a nurse deviates from what a reasonable nurse with similar training and education would do, that may be a breach of their duty. If the breach caused injury to the patient and the patient suffered harm or damage, the nurse may be liable for damages. 

Nursing Duty of Care

The nursing medical standard of care is generally based on a “reasonably prudent nurse.” The nurse’s standard of care is based on several factors, including: 

  • Degree of competence
  • Education
  • Training
  • Practice area
  • Medical community
  • Scope of practice

For example, the standard of care of a CNA is very different from an RN. An RN requires a 2-year or 4-year degree, more training and education, has a broader scope of practice, and may have supervisory duties. The practice area may also be different for a nurse working in an emergency room compared to a traveling nurse accompanying a patient on a long plane flight. A nurse’s duty of care can be very specific and requires a nursing expert witness to help the judge and jury understand the nurse’s role in the injury victim’s care. 

Nursing Education and Training 

Many people who are receiving care in a hospital or clinic may assume that any health care provider who is treating them is a doctor or a nurse. However, there are many other types of healthcare workers, including therapists, technicians, and regular hospital employees. Even nurses have a number of types of nursing degrees that may affect what care they can provide, their training, and their professional experience. The types of nursing degrees and nursing levels include: 

  • Certified Nursing Assistant (CNA)
  • Licensed Practical Nurse (LPN)
  • Licensed Vocational Nurse (LVN)
  • Registered Nurse (RN)
  • Advanced Practice Registered Nurse (APRN)

Training in nursing generally involves getting into a nursing program, through a vocational school, community college, or university. The education depends on the level of nursing study, generally includes a combination of reading, lectures, testing, laws, and clinical hours. Courses may include a variety of topics, including: 

  • Nursing care and healthcare roles
  • Science and nutrition
  • Anatomy and physiology
  • Medical terminology
  • Emergency care
  • Nursing skills
  • Patient care
  • Specialty courses

After completion of the educational training, aspiring nurses will generally have to pass a national exam, such as the National Council of State Boards of Nursing National Council Licensure Examination (NCLEX). Each state has its own requirements for eligibility and approval for nursing licensure. 

Nurses can also seek certification in a specialized area of nursing care. Certifications may help nurses find job opportunities in their specific area of interest, including: 

  • Dialysis
  • Geriatrics 
  • Pediatrics
  • IV Care
  • Neonatal
  • Forensic nursing
  • Clinical research

Certified Nursing Assistant (CNA)

A CNA program generally lasts from one to 3 months. These non-degree certificates allow for limited duties and require supervision by nurses. After taking classes with clinical training, eligible individuals have to pass a CNA exam for certification. Common duties may include taking vital signs, talking to family members, bathing and cleaning patients, and assisting nurses in other nursing care.  

Licensed Practical Nurse (LPN) / Licensed Vocational Nurse (LVN)

LVN and LPN certificates are usually year-long programs that provide graduates a certificate to be eligible for NCLEX. LVNs and LPNs may be able to supervise CNAs. LPNs can also go on to earn more advanced nursing degrees. Job duties may include reporting patient conditions to doctors, assisting with medical procedures, administering medication, and providing patient care. Most LPNs and LVNs work in nursing homes or residential care facilities but can also work in other health care areas. 

Registered Nurse (RN)

Registered nurses have a much broader area of practice and are able to provide more in-depth patient care. Nurses can qualify as an RN after an Associate Degree in Nursing (ADN), or a Bachelor of Science in Nursing (BSN). An ADN is generally a 2-year program, often available at community colleges or nursing programs. An RN with an ADN degree can assist doctors with surgeries, exams, and medical procedures. ADN nurses can also perform diagnostic tests, review patient treatment, and supervise CNAs, LPNs, and LVNs. 

A BSN is usually a 4-year-degree. After getting a BSN, an eligible individual can become an RN. RNs are able to work in a variety of health care roles, most commonly in hospitals. Nurses can also work in schools, as home health nurses, administrators, consultants, and nursing care case managers. 

Advanced Practice Registered Nurse (APRN)

Advanced practice registered nurses may be required to have a Master of Science (MSN). MSN programs may provide in-depth education and training into specialized nursing areas. Many RNs pursue an MSN after getting a BSN, which may take an additional 2 years. APRNs may be able to get a credential to work in a specific practice area, including as a: 

  • Nurse Practitioner
  • Certified Nurse Anesthetist
  • Certified Nurse Midwife
  • Clinical Nurse Specialist

Doctorate in Nursing

There are two types of advanced doctorate degrees in nursing, the Doctor of Nursing Practice (DNP) and PhD in Nursing. The American Association of Colleges of Nursing have recommended moving from the MSN degree to the DNP degree, which includes advanced practice registered nurses (APRNs), certified registered nurse anesthetists (CRNAs), certified nurse midwives (CNMs), clinical nurse specialists (CNSs), and nurse practitioners (NPs). 

Nursing Practice Areas 

There are almost as many nursing practice areas as there are practice areas for doctors. Doctors and patients in most health care fields can benefit from the care provided by skilled nurses, including patient care, monitoring, and facilitating communication between the nurse and the doctor. Some common nursing practice areas include: 

  • Clinical care nurse
  • Dialysis nurse
  • Infection control nurse
  • Neonatal nurse
  • Nurse midwife
  • Oncology nurse
  • Psychiatric nurse
  • Orthopedic nurse
  • Family nurse
  • Public health nurse
  • School nurse
  • Nurse anesthetist
  • Nurse researcher
  • Trauma nurse
  • Travel nurse
  • Pediatric nurse
  • Acute care nurse
  • Geriatric nurse

Who Determines the Deviation From Accepted Nursing Care?

In a medical malpractice lawsuit, the jury hears evidence from the injury victim and the defendants about what happened in the claim of a harmful medical error. Most of the jurors and the judge will probably not have much medical education or training and not be familiar with the daily duties and expectations of a nurse. 

In order to determine whether the specific nurse breached the duty of care, the jury may hear from medical experts, providing expert opinions. An expert does not have to be the foremost figure in nursing. Under the Federal Rules of Evidence, Rule 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.”

For example, if a Certified Nurse Anesthetist is accused of failing to properly monitor a patient when a patient suffered an injury under anesthesia, both the plaintiff and the defendant may have an expert witness to prepare a report and testify to the jury. An expert, in this case, may include an unrelated Certified Nurse Anesthetist, with years of experience in the field, supervisory experience, or someone who teaches in the field of nursing anesthesia. 

If the expert testifies that the nurse deviated from the standard of care which caused the victim’s injury, the jury could find the nurse’s deviation caused the patient to suffer an injury, and the nurse is liable for damages. However, if the jury agreed with the other qualifying expert, that the nurse did not deviate from the standard of care, even if the patient suffered an injury, the nurse may not be liable because the nurse acted within the scope of the standard of care. 

Can the Nurse Pay for the Damages?

Liability in a medical malpractice case can be confusing. Some injury victims even fail to file an injury claim because they do not think the person who caused the injury can pay for the damages. However, even if the nurse responsible for the injury does not have the financial resources to pay for the medical bills, lost wages, and other damages, the patient may have other options. 

An employer is generally liable for the negligence of an employee when the employee is acting within the scope of employment. This is known as vicarious liability or respondeat superior. One of the reasons for this legal option is that an employer may be in a better financial position to compensate an innocent injury victim for something done for the employer’s benefit. In a negligence or medical malpractice lawsuit, the injury victim may be able to recover damages from the negligent employee AND the employer. 

To establish vicarious liability in a negligence claim, the injury victim must show that there was an employer-employee relationship, and the employee acted in the scope of employment. Some doctors are employees of hospitals but many are independent contractors. Hospitals and companies may not be liable for the negligence of independent contractors. However, most nurses are employees, making their employers potentially liable for an employee-nurse’s negligence.

Who Is Named in a Medical Malpractice Lawsuit?

The first step of beginning a medical malpractice lawsuit is filing the complaint. The complaint lays out the basic claim, alleging the plaintiff was injured because of negligence or malpractice of the defendants named in the complaint. The initial complaint may include a number of possible defendants, even if not all of them were responsible for any cause of injury. This is standard practice, in order to make sure all potential defendants are named before the statute of limitations expires. 

Example of Nursing Names Added and Dismissed From a Malpractice Complaint

Over the course of discovery, the names of specific caregivers may be clarified or dismissed from the complaint. For example, an initial complaint may include defendants: 

  • ACME HOSPITAL
  • ACME HEALTHCARE GROUP
  • SMITH, MD
  • CHAN, DO
  • LEE, RN
  • SILVA, APRN
  • DOES 1 through 10.

After the plaintiff and defendants begin to exchange records, receive answers to questions, and conduct depositions, it may be clear that Chan, DO and Silva, APRN were not involved in the patient’s care. Their names may be dismissed from the complaint. However, during discovery, the unnamed “Does” are identified by their name and profession. The complaint will be amended to change the name of the unnamed defendants to named defendants. 

Next Steps in a Nursing Malpractice Lawsuit?

Medical malpractice cases can be complex and an experienced law firm can help guide you through the process. Talk to experienced trial attorneys who can review your case, get a nursing expert’s review, and help you understand your legal options to file a claim against the nurses, doctors, and hospitals responsible. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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    Call 800-529-6162 or complete the form. Phones answered 24/7. Most form responses within 5 minutes during business hours, and 2 hours during evenings and weekends.





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