Medical Malpractice Claim for a Nurse's Treatment Error

If a nurse makes a mistake that ends up harming a patient, there could be a case for malpractice.

Nurses are specially trained medical professionals, similar to doctors and other care providers. And if a nurse's error causes harm to a patient, the nurse could be liable for medical malpractice (often referred to as "nursing malpractice" in this context). In this article, we'll look at the types of mistakes that could amount to nursing malpractice, and some key issues to consider if you're thinking about filing this kind of lawsuit.

How Might a Nurse Commit Malpractice?

Even though doctors often have oversight authority over nurses, a nurse can still be liable for a mistake in treatment (the doctor or hospital could be liable as well; more on that later). Here are a few examples of how a nurse's error might equate to nursing malpractice:

  • inadequate monitoring or observation of a patient
  • failing to respond to a patient's call for assistance in a timely manner
  • not taking a patient's vital signs at the proper times
  • improper medical record-keeping
  • not taking steps to prevent or identify bed sores
  • giving a patient the wrong food
  • administering the wrong medication
  • providing a patient with the correct medication, but at the wrong dose or at the wrong intervals, and
  • inadequate adherence to post-surgery protocols.

Even if a doctor or other medical professional might technically have ultimate responsibility for some of these tasks, it's usually the nurse that must carry out the doctor's orders.

For example, a surgeon may be in charge of the operating room, with everyone else deferring to the surgeon's judgment and decisions. But it's often the surgical nurse (or perioperative nurse) who counts every sponge that gets opened and placed in the patient, and when the procedure is over, counts the number of sponges that the surgeon takes out of the patient. If the numbers don't match, the surgical nurse will notify the surgeon and anyone else assisting in the procedure so that the missing sponge can be located.

Imagine that weeks after a procedure, a patient feels acute pain at the surgery site, and it's revealed that a surgical sponge has been left inside the patient. Who's liable? Depending on the facts of the case, it could be the nurse, the doctor, the hospital, or all three.

Who Might Be Liable for a Nurse's Malpractice?

If a nurse commits medical negligence, the patient can sue the nurse. But it might also make more sense to also hold the hospital/employer or the supervising doctor liable.

Looking back at the surgical sponge example, if the nurse made a counting mistake or simply failed to announce that a sponge was missing, it's possible that the hospital might not be liable, especially true if the nurse is not employed by the hospital and is working as an independent contractor.

But change the facts a little, so that the nurse had been drinking alcohol before the shift, and the hospital had reason to know (or suspect) that the nurse had been intoxicated while working on a number of shifts in the past—and that the nurse represented a risk to patients' health and safety. The hospital is likely going to be liable for the nurse's mistake in this situation. If the nurse is an employee of the hospital, this kind of liability is almost automatic, under the legal theory of vicarious liability.

It's also possible that the surgeon could be liable as well. Because the surgeon is ultimately in control of the operating room, any mistake that occurs during the procedure could be the legal responsibility of the surgeon. But if the medical malpractice lawsuit makes it to trial, it will be up to the jury to decide if the surgeon acted negligently even though someone else made the mistake. Learn more about proving that a healthcare professional committed medical malpractice.

If a nurse is clearly liable for a medical error, why would a patient also sue the hospital or doctor? The answer usually comes down to money.

Often, the hospital, the nurse's employer, or some other entity (such as a staffing or "travel nurse" agency) will provide some form of liability insurance or malpractice insurance that covers the nurse's performance of his or her job duties. This means any settlement or court judgment will almost always come from an insurance company, not from the nurse's own assets. And the more insurance coverage that applies to the underlying incident, the better. Even if the nurse has his or her own nursing malpractice insurance, that coverage might not always be enough to satisfy the full scope of the plaintiff's medical malpractice damages.

Next Steps in Your Claim

If you're thinking about taking legal action over harm caused by a nurse's mistake, it may be time to discuss your situation with a lawyer and determine your best course of action. Use the contact tools on this page to reach out to a medical malpractice lawyer near you, or learn more about finding the right medical malpractice lawyer for you and your case.

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