Medical Malpractice Claim for a Nurse's Treatment Error?

A treatment error committed by a registered nurse or a nursing assistant can lead to a lawsuit against the nurse and hospital (or doctor's office).

Can nurses commit professional negligence, or it is just doctors who can be found liable for malpractice? In reality, any type of health care provider can commit malpractice -- from doctors to nurses to therapists -- and any type of health care provider can be found liable for malpractice. This is because malpractice is just a fancy word for negligence, and negligence is just a fancy word for doing something wrong. In this article, we'll focus on a nurse's liability for medical malpractice.

Why Sue a Nurse for Medical Malpractice?

Nurses often work for doctors or hospitals, so if something goes wrong during the course of medical treatment, why sue the nurse? Wouldn't you just want to sue the doctor or hospital? And aren't the doctors in charge of the nurses anyway?

It’s a little more complicated than that. Nurses are licensed health care providers who owe their patients an independent professional duty (similar to but distinct from the medical standard of care that doctors are held to when it comes to treating patients).

Further, there are many situations where the nurse is directly in charge of the patient’s medical care. For example, if a nurse is performing home health care, the nurse is carrying out a doctor’s instructions, but the nurse is often working completely on his or her own. Home health care nurses often do not work for the doctor whose instructions they are following. They generally work for independent home health care agencies.

So, in that situation, if a nurse acted negligently in caring for the patient, your medical malpractice lawyer would sue the nurse directly, as well as the nursing agency that employed the nurse, because it was the nurse who was primarily in charge of the patient’s care.

Another example might be if the nurse works for a doctor’s office, and there is no doubt that it was the nurse who made the mistake. In that case, you would want to sue the nurse because it was the nurse -- and not the doctor -- whose medical negligence caused harm to the patient.

Another reason why you would want to sue the nurse him/herself is when a nurse is employed by a hospital. Hospitals are generally non-profit organizations, and, in many states, state law places a cap on the amount of damages that can be awarded in a suit against a non-profit organization. This is known as the charitable immunity cap.

Suing a Nurse’s Employer for the Nurse’s Malpractice

If a nurse was negligent, a medical malpractice lawyer would customarily sue the nurse’s employer as well as the nurse him/herself. Employers are customarily liable for the negligence of their employees under a legal theory known as "vicarious liability."

The lawyer would want to sue the nurse’s employer because, in any type of personal injury case, he/she will want to go after the maximum amount of insurance coverage possible. In case the nurse has limited or even no malpractice insurance coverage, if you have the option of suing an entity that has ample insurance coverage -- and also bears legal responsibility for the nurse’s actions -- that is an avenue that bears pursuing.

So, going back to our example above, where a nurse who worked in a doctor’s office committed malpractice; in this case, you would sue the doctor’s office, but only in the context of vicarious liability. If you are convinced that the doctor was not negligent, you would sue the doctor’s office only as an employer who is vicariously liable.

Some Examples of Nursing Malpractice

Whether the nurse is performing home health care or working in a doctor’s office or hospital, there are many, many tasks that nurses perform that are related to the

  • patient’s care. Just some of these tasks include:
  • monitoring and observing patients
  • feeding patients
  • administering medications
  • changing bandages and dressings, and
  • checking any medical equipment that the patient is connected to.

If a nurse fails to perform these tasks properly, the nurse could be found negligent. Just some examples of nursing malpractice are:

  • failing to monitor or observe a patient as needed based on the patient’s condition
  • failing to respond to a patient’s call for assistance
  • failing to take a patient’s vital signs at the proper times
  • failing to write down the nurse’s observations in the patient’s chart
  • making a mistake in the patient’s diet
  • giving the patient the wrong food or drink
  • administering the patient the wrong type or wrong amount of medication, or
  • giving the patient’s medication at the wrong time or in the wrong manner.

If a nurse made a mistake in any of these situations, it would be the nurse, not the doctor, who was negligent.

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