Avoiding Liability Bulletin – July 2026
Everyone is required to conduct themselves in a non-negligent manner.
In everyday life, if one allegedly injures someone in a car accident or in some other way, a lawsuit alleging “ordinary” or “common-law” negligence may be filed.
The elements of “ordinary” or “common-law” negligence are: 1) a duty exists between the person who is allegedly negligent and the person who was injured; (2) that duty is breached by the person allegedly causing the injury; (3) the breach of the duty proximately caused the injury to the person; and (4) damages were incurred by the injured person.
The conduct that allegedly cause the injury is measured by what a reasonable person would have done in the same or similar circumstances.
Professional negligence, in contrast, involves a professional, such as a nurse, who fails to adhere to standards of practice and that failure results in an injury or death to a person under his or her care.
The elements of professional negligence are the same as those elements of “ordinary” or “common-law” negligence. However, a nurse who is alleged to be professional negligence in a lawsuit requires proof that is supported, not only from evidence specific to the case, but also by the testimony of an nurse expert witness.
The nurse expert witness establishes the standard of care in the specific situation and testifies as to whether the nurse in the lawsuit adhered to that standard or breached it based on what other ordinary, reasonable, and prudent nurses would have done in the same or similar circumstances.
In the following case (Myers v. Heritage Enterprises, Appellate Court of Illinois, Fourth District, No. 4-04-0250 (2004), the issue of whether the certified nurses’ aides (CNAs) were “ordinarily” negligent or professionally negligent when transferring a patient with a Hoyer lift was evaluated.
Details Leading Up to the Case
A female patient was a resident in a nursing home. One day, two CNAs transferred the 78-year-old from her wheelchair to her bed with a Hoyer lift.
During the transfer, the patient fell approximately 18 inches and hit the bar of the lift. The tibia and fibula of both legs were fractured.
The patient died approximately two weeks after the fall, but her death was not attributed to the incident with the Hoyer lift.
The fall was reported by the nursing home to the state department of health and an investigation took place.
An RN who conducted the investigation for the state department determined that the patient fell due to no fault of the CNAs or the facility.
Lawsuit is Filed
Approximately a year after the death of the resident, the Executor of the estate of the deceased resident filed a lawsuit against the nursing home alleging common-law negligence and a violation of the state nursing home care act. The act requires that “owners and operators” of facilities are liable when a resident is injured due to the intentional or negligent acts of its employees or agents.
At the trial level, the nursing home filed a motion to dismiss the case based on the nursing home care act because the act does not allow a case to “survive the death of a resident.”
The appellate court, however, reversed that decision and held that the cause of action did survive the resident’s death.
The nursing home then withdrew the common-law negligent allegations and proceeded with its case based on the act. Some of its allegations included the patient was not properly positioned in the lift, that supervision of the staff was absent, and that the facility failed to train the staff in the proper transfer of a patient using a Hoyer lift.
Testimony was received by the court by several individuals , including a PhD. in nursing who testified that based on her review of all documents presented to the court, the CNAs used an acceptable transfer procedure. The two CNAs also testified.
The jury returned a verdict in favor of the nursing home. The Executor filed a Motion to Vacate the Judgment and Grant a New Trial. That Motion was denied.
The Executor filed an appeal.
Appellate Court Decision
The basis of the Executor’s appeal was that the jury instructions and approach by the nursing home that the CNAs conduct during the transfer be measured by a professional negligence standard was incorrect.
As a result, the trial court abused its discretion by instructing the jury on a professional negligence standard.
In addition, the nursing home attempted to discredit the Executor’s credibility by attempting to establish bias on his part due to the fact that he was the sole beneficiary of the nursing home resident’s estate.
Doing so, the appellate court held was improper and warranted a reversal of the trial court’s verdict.
The judgment of the trial court was vacated, and the case was remanded to the trial court for a new trial.
What This Case Means for Your CNA Practice
As a CNA, your contributions to the care of residents in a nursing home, or patients in a home setting or hospital are essential. Providing that care in a non-negligent manner is paramount, both for you and for your patients. And, in most instances, the standard that your care is provided by is that of a professional one.
However, in this case, the operation of a Hoyer lift was not seen as one involving a professional nursing standard. In short, anyone, with proper training in the use of the lift, could do so. A professional person is a qualification not needed to operate the lift.
Even so, proper procedures are necessary to use a Hoyer lift in order to protect the well-being and very life of the person who needs the lift for transfer.
As a result, the standard of care, as the Appellate Court reasoned should have been applied to these CNAs, was what an ordinary, reasonable, and prudent person would have done in the same or similar circumstances.
Had the situation been different, a professional standard could have applied.
If, for example, let’s say there was a question as to whether the resident should have been transferred with the lift due to her inability to mentally cooperate with the instructions given to her in preparation for the transfer with the lift.
If a judgment was made by the CNAs to transfer her regardless of the resident’s confusion and inability to cooperate with the procedure, and an injury occurred, the standard of care would most likely revert to a professional standard.
This would be so because the CNAs had to make a decision based on their education and knowledge of a patient’s ability to cooperate with the transfer.
So, the standard that would be used to measure the CNAs decision in that circumstance would be what other ordinary, reasonable, and prudent CNAs would have done in the same or similar circumstances.
That standard would be established by a nurse expert witness.
Also keep in mind that a state law, the nursing home act, was also a factor in the case. The act, as it existed when this case was decided, did not classify a CNA as a professional person. This was another reason why the Appellate Court held that a professional standard of care was not appropriate for the CNAs in this circumstance.
When you provide care in your CNA role, do not concern yourself with what category your decision might fall into when providing care. Simply make certain you are providing care that is non-negligent by any standard.
This information is for educational purposes only and is not to be taken as specific legal or other advice by the reader. Nor does it create an attorney-client relationship. If legal or other advice is needed, the reader is encouraged to seek such information from a nurse attorney, attorney or other professional.
