Sources of law that affect nurses

• Constitutional law — basic rights (e.g., due process, privacy)
• Statutory law — laws passed by legislatures (state Nurse Practice Acts, HIPAA, EMTALA)
• Administrative (regulatory) law — rules made by agencies such as boards of nursing and the Centers for Medicare & Medicaid Services (CMS)
• Common law — law created by court decisions (case law), which defines much of negligence law

Civil vs. criminal law

A tort is a civil wrong (other than breach of contract) that causes harm. Torts may be unintentional (negligence, malpractice) or intentional.

Negligence — failure to use the care that a reasonably prudent person would use in similar circumstances. Malpractice — professional negligence: failure of a professional to meet the standard of care expected of a reasonably prudent member of that profession with similar training and experience.

Standard of care is established by the Nurse Practice Act, professional standards (ANA, specialty organizations), agency policies and procedures, accreditation standards, current evidence, and expert witness testimony.

Elements of malpractice — all must be proven by the plaintiff

Some texts list foreseeability separately (six elements: duty, breach, foreseeability, causation, harm, damages). Without actual harm, there is no malpractice case even if the nurse made an error.

Legal doctrines

• Res ipsa loquitur ("the thing speaks for itself") — harm that would not normally occur without negligence, under the defendant's exclusive control (e.g., a sponge left in the abdomen); allows negligence to be inferred without direct proof of the breach, and the defendant must then explain or rebut it
• Respondeat superior ("let the master answer") — the employer is liable for employees' negligent acts within the scope of employment; the nurse remains personally liable as well
• Corporate liability — the facility is directly liable for its own failures (inadequate staffing, unsafe equipment, failure to verify credentials)
• Borrowed servant — the person directing a worker (e.g., a surgeon directing a nurse) may share liability
• Comparative negligence (most states) — damages are reduced in proportion to the client's share of fault
• Contributory negligence (only a few jurisdictions) — any fault by the client can bar recovery completely; rules vary by state
• Statute of limitations — the time limit to file a malpractice suit; set by each state and often extended for minors or late-discovered injuries
• Good Samaritan laws — protect people who give emergency aid in good faith, without pay, outside the work setting, within their training; they do not protect gross negligence. Details vary by state.

Intentional torts

Common categories of nursing malpractice claims

1. Failure to follow standards of care (e.g., missed fall or pressure injury precautions)
2. Failure to assess and monitor (missed deterioration)
3. Failure to communicate (not reporting changes to the provider, poor hand-off)
4. Failure to act as advocate — not using the chain of command when a provider does not respond or an order is unsafe
5. Medication errors (wrong drug, dose, route, client; skipping independent checks)
6. Failure to use equipment responsibly (unfamiliar devices, ignored alarms)
7. Failure to document
8. Procedural errors (e.g., injection injuring the sciatic nerve; transfusion without identification checks; unfamiliar central line care performed without seeking help)

Documentation — the medical record is a legal document

• Chart facts objectively: what you saw, heard, did, and the client's response; quote the client when relevant
• Chart promptly and in chronological order; label late entries with the current date and time
• Never alter, delete, or backdate entries; correct errors per policy (in paper records, a single line with initials and date; in the electronic health record, an amendment with audit trail)
• Never chart for someone else or before care is given
• Document notification of the provider, the information given, and the response
• Use approved abbreviations only
• "If it wasn't documented, it wasn't done" is the courtroom assumption
• Protect log-ins and badges — never share credentials; you are accountable for entries and access under your identity

Incident (occurrence, safety event) reports

• Complete for any event that caused or could have caused harm (falls, errors, near misses)
• The report is an internal quality and risk management tool; do not mention it in the medical record and do not place a copy in the chart
• Document the facts of the event and the care given in the record

Verbal and telephone orders — accept only when necessary per policy; write them down and read them back for confirmation; obtain the provider's signature within the required time; clarify any order that is unclear or unsafe before acting.

• Know and follow policies, procedures, and the NPA; stay current with evidence
• Assess, monitor, and report changes promptly; escalate through the chain of command if a provider does not respond
• Use two identifiers and required independent checks (blood, high-alert medications)
• Ask for help and education before performing unfamiliar procedures or using unfamiliar equipment
• Establish rapport and communicate honestly; clients are less likely to sue when they feel respected and informed
• Consider professional liability insurance — employer policies protect the employer's interests and may not cover off-duty acts or cover the nurse fully
• Report errors and near misses; support a just culture that distinguishes human error, at-risk behavior, and reckless behavior
• Cooperate with risk management; do not discuss a pending case with anyone except as directed by counsel

• Liability is personal: the employer's liability does not remove the nurse's
• Malpractice payments involving licensed nurses are reported to the National Practitioner Data Bank (NPDB)
• A board of nursing may discipline the license for the same event (administrative action) independent of any lawsuit
• Honest disclosure of errors to clients, following facility policy, is an ethical obligation (veracity) and supports trust
• Falsifying records can be a crime, beyond a civil wrong
• Abandonment — leaving an assignment after accepting it without ensuring handover — can be both a civil and a disciplinary issue

Case 1. A nurse gives an IM injection in the dorsogluteal site, and the client develops foot drop from sciatic nerve injury. Analysis: duty, breach (poor site selection and landmarking; the ventrogluteal site is preferred), causation, damages — malpractice.

Case 2. A client refuses a nasogastric tube, but the nurse inserts it anyway "for his own good." Tort: battery — touching without consent. Correct action: respect the refusal, explore reasons, notify the provider, and document.

Case 3. A nurse notices worsening respiratory distress, pages the provider twice without response, and waits. Correct action: escalate through the chain of command (charge nurse, supervisor, rapid response team). Why: failure to act as an advocate is a common basis for liability.

Case 4. After a fall, a nurse writes in the chart: "Incident report filed; patient fell due to understaffing." Correct documentation: objective facts — time found, position, assessment, provider notification, interventions. Why: incident reports and blame do not belong in the chart.

• Believing an error alone equals malpractice — all four elements, including actual harm, are required
• Thinking the hospital's liability protects the nurse personally — respondeat superior does not remove personal liability
• Assuming Good Samaritan laws protect on-duty care or gross negligence — they do not
• Charting "incident report completed" in the record
• Changing or deleting an earlier entry instead of amending it properly
• Confusing assault (threat) with battery (touching)
• Believing a provider's order excuses carrying out a clearly unsafe order — nurses must clarify and refuse unsafe orders

• Malpractice elements: duty, breach, causation, damages
• Civil standard = preponderance of evidence; criminal = beyond reasonable doubt
• Standard of care = what a reasonably prudent nurse would do; shown by NPA, standards, policies, expert witnesses
• Res ipsa loquitur: the injury speaks for itself; respondeat superior: employer liable, nurse still liable
• Assault = threat; battery = touch without consent; false imprisonment = unjustified restraint
• Incident reports: internal, not in the chart, not mentioned in the chart
• Late entries labeled; never alter records; read back verbal orders
• Chain of command when a provider does not respond or an order is unsafe
• Good Samaritan laws: good faith, unpaid, within training, not gross negligence; vary by state
• Malpractice payments are reported to the NPDB