November, 2011 - CPH Insurance

Avoiding Liability Bulletin – November 15, 2011

At one time or another, you have probably used this phrase in your everyday conversations with friends, family, and even with nurse colleagues. However it was used in those conversations, in the legal world of professional negligence, it has a very specific meaning.

Res Ipsa Loquitur, “the thing speaks for itself”, is a rule of evidence stating that in a particular circumstance or circumstances , the mere occurrence of an incident raises an inference of negligence that establishes a prima facie case of that negligence (1). A prima facie case means that the evidence presented by an injured party (the plaintiff) allows the fact finders (the jury) to infer that the fact at issue—the injury– occurred and therefore can return a verdict for the injured plaintiff (2).

For res ipsa loquitur to apply, the evidence that must be introduced by the plaintiff must prove:

That in the ordinary course of events, such an injury would not occur if the defendant was not negligent;
The defendant had exclusive control over that which caused the injury; and
The injury could not have occurred as a result of any voluntary action by the injured plaintiff.(3)

In most states, what this means practically is that when an injured plaintiff (patient) raises a res ipsa loquitur allegation against a defendant (a nurse), the plaintiff does not need to prove the standard of care was not met by an expert witness’ testimony. Rather, presenting evidence of the circumstances surrounding the injury allows the jury to infer that negligence occurred, especially if the defendant cannot rebut (refute) the allegation by contrary proof, testimony or other evidence.
If the judge allows the application of the res ipsa loquitur doctrine, the jury can then evaluate the circumstantial evidence and if strong enough, and without evidence to the contrary presented by the defendant, decide in favor of the plaintiff—negligence did take place under this doctrine– and award damages to the plaintiff.

The principle of res ipsa loquitur can be alleged against one nurse defendant or several nurse or other health care defendants. The classic case that applied the doctrine to more than one defendant is Ybarra v. Spangard (4), in which the California Supreme Court applied the doctrine to an operating room team who refused to speak about how a surgical patient sustained a permanent arm injury after surgery for an appendectomy. The team apparently thought that if the second element of the doctrine—who had exclusive control over the patient during surgery—could not be proven, the case would fail. Instead, the California Court simply held that under the circumstances, the doctrine could be applied to multiple defendants (5).

There are many additional case decisions against nurses and other health care providers utilizing the principle of res ipsa loquitur. Examples that include nurses are:

Steinkamp v. Caremark (6), where a nurse, while inserting a catheter into a patient’s arm, the catheter disintegrated into the vein, requiring surgery to remove the catheter fragments;
Edgar County Bank and Trust v. Paris Hospital (7), where footdrop occurred immediately after a nurse gave an injection to an infant;
Sanchez v. Bay General Hospital (8), where nurses failed to properly intervene after a patient’s cardiac arrest and death by not observing the patient, not monitoring the patient, and not initiating CPR; and
Zebarth v. Swedish Hospital Medical Center (9), where paralysis due to injury to the patient’s spinal cord occurred after a course of radiation therapy at the Medical Center for Hodgkins Disease.

These, and other cases, underscore again the importance of utilizing critical thinking when providing care and treatment to patients. Remember that with professional negligence, you don’t intend to harm or injure the patient. Rather, your duty or duties in the situation are breached and you fail to conform to the standard of care. With res ispa loquitur, the injury is evaluated by your control of the patient and/or patient equipment, by the fact that the injury usually does not occur in the absence of negligence, and the patient did not contribute to his or her injury in any way.

Non-negligent care is always the goal when caring for patients, but with this additional doctrine alive and well in the area of professional negligence, extra vigilance needs to be taken with unconscious patients, patients who are paralyzed, patients who are having surgery or long term treatments and need to be positioned correctly during surgery and those treatments, patients who are infants and children, and patients who are elderly and confused, as examples.

Don’t let “the thing speaks for itself” ever describe your care and treatment of patients. Its application raises serious questions about the quality of your nursing care and treatment to patients to whom you owe a duty to provide non-negligent and safe care.

FOOTNOTES
(1) Robert Kane, Ross Silverman, Lawrence Singer, et al (2007), “Res Ipsa Loquitur”, in The Law Of Medical Practice In Illinois. Egan, MI: Thompson West, 370-375 (with regular updates).
(2) Id.
(3) Dan Dobbs (2001), “Res Ipsa Loquitur”, in The Law Of Torts. St. Paul, MN: West Group, 370-389 (with regular updates).
(4) 154 P. 2d 687 (Cal. 1945).
(5) Nancy J. Brent (2001), “Concepts of Negligence, Professional Negligence, and Liability”, in Nurses And The Law: A Guide To
Principles and Applications. Philadelphia, PA: W.B. Saunders Company, 58-59.
(6) 3 S.W.3d 191 (Tex. App. 1999).
(7) 312 N.E.2d 259 (1974).
(8) 172 Cal. Reptr. 342 (1981).
(9) 499 P. 2d 1 (1972).
DISCLAIMER

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About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – November 1, 2011

The first Bulletin covered the topic of liability and briefly discussed a nurse licensee’s potential involvement in several types of lawsuits, including professional negligence. A closer look at the cause of action of professional negligence is important.

Negligence and professional negligence (that is, negligence involving a nurse, lawyer, or physician, as examples) are included in the category of tort laws. A tort is a civil wrong for which damages can be obtained (1). Negligence has been described as a breach of a duty that the law imposes to protect another from an unreasonable and foreseeable risk of harm (2).

The law imposes a standard of “due care” towards others in your everyday life. That translates into what other ordinary, reasonable and prudent people would do in the same or similar circumstances in the same or similar community (2). In a given situation, if your conduct conforms to that standard in a negligence case when you are a defendant in a lawsuit, a verdict would be in your favor. If your conduct did not conform to that standard, a verdict against you would be rendered.

As a nurse, these same principles of negligence apply to your professional role. You have a duty to protect your patients from unreasonable and foreseeable risks of harm. As was stated in the first Bulletin, your standard of care is what other ordinary, reasonable and prudent nurses would do in the same or similar circumstances in the same or similar community. The “similar” community part of the standard is really a national standard. In other words, the nurse expert who testifies on your behalf as a defendant, or the nurse expert who testifies on behalf of the patient who filed the suit, will be testifying as to standards of care applicable across the county, not just in your city or town.

Because of this national standard, the nurse expert you use at trial, or the nurse expert of the patient’s (plaintiff), may come from anywhere in the United States. A nurse expert is defined in state statutes that spell out the requirements for the individual to be declared a nurse expert at trial. Such statutes list educational qualifications, length of time in the actual practice or teaching of nursing, and other requirements. The role of the nurse expert is to educate the jury and provide an opinion as to whether the standard of care was met by the nurse defendant in the case before the court.

There are four essential elements, each of which must exist and each of which must be proven by the injured person, for a lawsuit alleging negligence to be successful against a defendant:

a duty must exists between the person who allegedly caused the injury (you as a nurse) and the
injured person (the patient);
a breach of the duty occurs;
the breach of the duty is the proximate cause (or legal cause) of injury to the victim; and
damages or injuries or both are suffered that the law recognizes as compensable. (3).

In a professional negligence case against you as a nurse, the first element of negligence—a duty exists between you and the patient—is perhaps the easiest to prove. If you are working a particular shift and you are assigned patients, you owe a duty to provide non-negligent care to those patients and protect them from unreasonable and foreseeable risks of harm.

The patient’s lawyer may also be able to prove that you breached your duty or duties of care to the patient. As an example, you may administer a wrong medication to a patient (you had a duty to administer the right medication non-negligently).

What may become more difficult is proving the third essential element—that the breach was the legal cause of injury to your patient. A breach of your duty took place, but if the wrongly administered medication is proven not to be the legal cause of the death of the patient, then this essential element cannot be met or proven. Therefore, a verdict in your favor occurs.

Another key principle in the law of negligence is that you does not have to intend or want to cause injury or damages to another. Rather, the key is that because the risk of injury or death is foreseeable, you have a duty to identify the risk(s) and protect another person from those risks (4).

Many cases have been filed across the country against RNs, LPNs and LVNs alleging negligence. Some have resulted in verdicts for the nurse defendant and some have not. To see how the courts have utilized the principles discussed in this Bulletin, an interesting article that studied cases from 1995-2001 involving nurses, including nursing practice areas most frequently involved in negligence cases, is Eileen Croke’s “Nurses, Negligence and Malpractice” (5). Give it a read. The article will be a good foundation for you to begin to understand professional negligence in nursing and how the cause of action is managed in the civil courts.

REFERENCES

1. Bryan Garner (Editor) (2001). Black’s Law Dictionary. 2nd Pocket
Edition. St. Paul, MN: West, 712-713.

2. Id., 470-471.

3. Dan Dobbs (2001). The Law Of Torts. St. Paul, MN: West, 269-
280.

4. Id.

5. 103(9) American Journal Of Nursing (2003), 54. Available at: http://www.nursingcenter.com/library/journalarticle.asp?article_id=423284. Accessed October 19, 2011.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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Month: November 2011

“The Thing Speaks For Itself”

About the Author

Nancy Brent

Professional Negligence: A Brief Primer

About the Author

Nancy Brent