Nursing Malpractice

If you are injured by a nurse's negligence, you may have a claimfor medical malpractice.

Nursing malpractice occurs when a nurse fails to competently perform his or her medical duties and that failure harms the patient. There are a variety of ways that a nurse can harm a patient from administering the wrong drug to failing to notify a doctor when something is really wrong. In nursing malpractice cases, often a key issue is who is liable for the nurse's misdeeds the doctor or the hospital. Whoever is liable will be responsible for compensating the patient for the nurse's misdeeds.

When Does Nursing Malpractice Occur?

Like malpractice involving doctors, nursing malpractice happens when a nurse does not fulfill duties in a way that a normally competent nurse in the same situation would and that negligence injures the patient. (Keep in mind that not every mistake or unfortunate event that happens in a hospital or doctor's office rises to the level of negligence. To learn more about what constitutes medical malpractice, read Nolo's article Medical Malpractice Basics.)

Nursing malpractice can happen in a variety of situations, but below are some of the most common.

Doing or Saying Nothing When Action Is Required

Nurses are often the frontline for a patient. If the patient has a sudden emergency, a nurse may be liable if he or she doesn't take appropriate immediate steps. This may involve actions like administering a medication or calling for help.

Similarly, a nurse is under a duty to monitor a patient's condition. If the nurse notices something of concern, or should notice it, then the nurse may be liable for malpractice for not notifying the attending doctor.

Injuring a Patient With Equipment

A nurse will be liable for malpractice if he or she injures a patient with a piece of medical equipment. This can happen in a variety of ways, like knocking something heavy onto the patient, burning the patient, or leaving a sponge inside the patient after surgery.

Improper Administration of Medication

Administering medication according to the doctor's orders is a common nursing task. If the nurse fails to follow the orders, she or he will be liable for malpractice if the patient is injured. The nurse may also be liable for negligently following otherwise proper orders, like injecting a medication into muscle instead of a vein or injecting the wrong patient.

Who Is Responsible for Nursing Malpractice?

Often, a key issue in nursing malpractice cases revolves around who is responsible for the nurse's negligent acts: the hospital or the attending doctor.

The Hospital

A hospital may be legally and financially responsible for nursing malpractice if:

• the nurse was an employee of the hospital
• the nurse was fulfilling a job duty when the patient was injured, and
• an independent doctor (that is, one not employed by the hospital) was not in control of the nurse.

Because most nurses are employees of hospitals, hospitals are frequently a defendant in nursing malpractice cases.

The Attending Doctor

If an attending doctor is supervising the nurse, the hospital may be off the hook even though it is the nurse's employer. Whether the nurse is under the supervision of the doctor when the misdeed occurs depends on:

• whether the doctor was present, and
• whether the doctor had control to prevent the nurse's negligence.

Example: During surgery, a nurse gives too much medication to the patient and the large drug dose injures the patient. The doctor performing the surgery could be liable for the patient's injuries because the doctor was present when the nurse improperly administered the drug and was responsible for monitoring all aspects of the surgery.

The issue of whether or not the doctor could control the nurse at the time of the negligence is normally a dispute between the doctor and the hospital the outcome does not change whether an injured patient can recover for malpractice, it just determines who pays.

Even if the doctor supervised the nurse, the hospital still might be liable if the doctor gave improper orders and the nurse should have known they were improper but followed them anyway. (To learn more about when a hospital is liable for an employee's negligence, read Nolo's article Medical Malpractice: When Can Patients Sue a Hospital for Negligence?)

Example:  A nurse notifies the doctor (who isn't present) that a patient is having an adverse reaction during a blood transfusion. The doctor orders the nurse to continue the transfusion. The nurse does so and the patient is injured. If a competent nurse would have stopped the transfusion, regardless of the doctor's orders, the hospital (along with the doctor) may be liable for the nurse's malpractice.

Is Expert Testimony Necessary?

The same rules that apply to a doctor's malpractice apply to nursing malpractice. That means both sides will, in most cases, need a qualified medical expert to testify (give evidence) about what a competent nurse would have done in the situation and whether the negligence caused the injury. In many states, a qualified medical expert for nursing negligence cannot simply be a non-specialist doctor, it must be a nurse or someone else trained in the specific medical field at issue.

Sometimes, in nursing malpractice cases, a nurse's negligence is so obvious that no medical expert testimony is needed. Examples include giving the patient a different drug than the one ordered or knocking over vital equipment.

Getting Help

Because medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, it is often essential to get advice or representation from a lawyer.

For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click "Types of Cases" and "Work History" to learn about a particular lawyer's experience, if any, with medical malpractice claims).

For more information on pursuing a personal injury case, see How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).