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DEFINITION OF MALPRACTICE AND NEGLIGENCE

Professional nurses, like everyone else, are definitely liable for any kind of harm that results from personally negligent acts. Nurses are held to a standard of care expected or reasonably competent nurses. The fact that they provide services to patients in a hospital as employees of the hospital does not relieve the nurses of personal legal responsibility to the patients in their care.

Malpractice is the term for negligence or carelessness of professional personnel. To determine what is and what is not careless, the law has developed a measuring scale called the standard of care. Usually, the standard of care is determined by deciding what a reasonably prudent person acting under similar circumstances would do. A jury makes this determination.

This reasonably prudent person is a legal fiction -- in other words, a hypothetical average person with average skills and training in the relevant field and with a hypothetically average amount of judgment and good sense. What this person would do is the yardstick for measuring what others should do in similar circumstances. Once the determination is made as to what the reasonably prudent person would have done, the actual performance of the person who is charged with negligence is measured against that standard of care.

If the action of the person charged (the defendant) meets or surpasses the standard, there has been no negligence or carelessness, just an unavoidable occurrence. But if the defendant's actions fail to meet the standard, then there has been negligence, and the jury must make two determinations: First, was it foreseeable that harm would follow the failure to meet the standard of care? Second, was the carelessness or negligence the proximate or immediate cause of the harm or injury to the plaintiff? A nurse who fails to meet the standard of care will be liable for negligence if that failure results in harm to another.

The four elements of negligence are:

1. a standard of due care under the circumstances

2. a failure to meet the standard of due care

3. the foreseeability of harm resulting from failure to meet the standard

4. the fact that the breach of this standard proximately causes the injury to the plaintiff.

A nurse may be negligent and still not incur liability if no injury results to another person. The term "injury" includes more than mere physical harm. In some states it may include mental anguish and other invasions of rights and privileges. For example, a wife whose husband has been hospitalized as a result of a third person's negligence may sue that third person for loss of marital services.

To prove what the reasonably prudent nurse would do, the courts utilize the services of an expert witness, a person trained in nursing or medicine who can testify to what the professional standard of care is in the same of similar communities. This testimony is necessary because the jury is not trained or qualified to determine what the reasonably prudent nurse's standard of care would be under the circumstances. Essentially, the expert testifies to aid the judge and the jury, by providing a measure by which the actual conduct of the nurse can be properly assessed.

In the performance of professional duties, every nurse is required to exercise reasonable care so that no harm or injury comes to any patients. The law measures the reasonableness of the care by the performance of other nurses in the community. Thus the standard of care for nurses is that degree of care ordinarily exercised by nurses of similar training and experience in the same or similar localities.

Some courts have moved away from the community standard of care and have applied what might be called a national standard. In this situation, the expert witness testifies as to what any reasonably prudent nurse anywhere would have done. The theory is that the standard of care should not vary according to the locate where the individual receives care.

The accompanying guidelines on negligence summarize the concepts of negligence and malpractice and the standard of care to be met in a particular situation.



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