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The Elements of a Nursing Malpractice Case, Part 1

Duty

Brous, Edie JD, MPH, MS, RN

AJN The American Journal of Nursing: July 2019 - Volume 119 - Issue 7 - p 64–67
doi: 10.1097/01.NAJ.0000569476.17357.f5
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Nurses have a duty of reasonable care for patients they care for—and in other circumstances, too.

Anyone suing a health care provider for malpractice must prove four elements in order to prevail: duty, breach, causation, and harm. This is the first article in a four-part series that will discuss each element in turn, using real cases as illustrative examples.

Edie Brous is a nurse and attorney in New York City and Pennsylvania, and the coordinator of Legal Clinic. Contact author: ediebrous@ediebrous.com. The author has disclosed no potential conflicts of interest, financial or otherwise.

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“A trained nurse is required to possess ordinary skill and knowledge and to exercise ordinary care and diligence under all conditions, and when required to use her own judgment must use her best judgment.”

“—Walter H. Saunders, 19051"

Nurses don't often get sued for malpractice, but when they do, it's important for them to be aware of what the person suing them is required to prove for the suit to be successful. Anyone suing a health care provider, including a nurse, for malpractice must prove four elements in order to prevail: duty, breach, causation, and harm. Suing parties must demonstrate that the provider they are suing had a duty to the patient, that the provider breached that duty, and that the breach of that duty was the cause of actual harm to the patient. This four-part series will discuss these elements in turn. I will use case examples to analyze and help explain each of the elements. In this article we begin with a discussion of duty.

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BACKGROUND

A party must have legal standing to bring a lawsuit: parties that bring lawsuits must be able to demonstrate that their interests were harmed, providing a reason to stand before the court. The person bringing the lawsuit is called the plaintiff. This can be the patient or another person acting on behalf of the patient. Some patients cannot bring lawsuits themselves because they have died, are minors, or otherwise lack capacity to bring a suit on their own behalf. In such cases, the lawsuit can be filed by an administrator or executor of the patient's estate. When the patient has died, she or he is then referred to as the plaintiff's decedent. Those parties who are named in the lawsuit are called defendants.

Most malpractice lawsuits name physicians, surgeons, or hospitals, although nurses can be individually named. Because most nurses are employees, malpractice lawsuits involving nursing care generally name the employer. Employers can be held liable for the actions of their employees under an agency theory called respondeat superior, which means “let the master answer.” This theory is based on the concept that the master is responsible for the actions of the servant. A hospital can be held vicariously liable for negligence committed by its nurses.

Under respondeat superior, nurses’ employers can be held responsible for the actions of their nurses under certain circumstances:

  • The nurse is acting within the scope of her or his employment.
  • The alleged negligent actions occurred during the course and scope of the nurse's employment.
  • The nurse's actions were in furtherance of the employer's interests.

Lawsuits that allege nursing malpractice generally name the employers for whom the nurses work because the employers are more likely to be able to pay for damages than the nurses are. In cases in which the nurse is acting outside the scope of her or his employment (called a frolic and detour), the employer might not be held responsible. An employer can be relieved of liability when a nurse violates employer policies, breaks the law, exceeds the scope of practice, or engages in actions for personal gain. In these cases, the employer will have no obligation to represent or defend the employee nurse in a lawsuit. Additionally, if there is an allegation of purposeful misconduct, professional liability policies might not provide coverage for the nurse.

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THE PROVIDER–PATIENT RELATIONSHIP

Although nurses have ethical and moral duties to patients, malpractice lawsuits are concerned with the legal obligation nurses have to their patients. Those legal duties are referred to as the duty of reasonable care, but for a case against a nurse to succeed, that duty must generally exist within the context of a nurse–patient relationship. Nurses are required to adhere to the standards of practice in providing care to patients, and if no nurse–patient relationship has been established, the nurse generally does not owe a duty to the patient. A 2013 Texas case illustrates this concept.

In Estrada v. Mijares,2 James Gibson, MD, admitted Richard Estrada to the hospital and requested a pulmonary consult from the on-call pulmonologist, Jeanette Tan. Encarnacion Mijares was an NP working for Dr. Tan and seeing Dr. Tan's existing patients. Ms. Mijares received a call from one of Mr. Estrada's nurses advising her of the request for the pulmonary consult. She told the nurse that Dr. Tan was not taking calls but was being covered by another pulmonologist, Ahmad Haji. Ms. Mijares did not work for Dr. Haji but called him “out of courtesy” to advise him of the request for a consult. She relayed information to him from Mr. Estrada's chart, including laboratory results and a computed tomographic (CT) scan of his lung. She then transcribed Dr. Haji's verbal orders into the patient's chart. She never evaluated the patient and had no further involvement in his care.

Dr. Gibson discharged Mr. Estrada from the hospital. Approximately five weeks after discharge, Mr. Estrada died of a heart attack. His wife filed a lawsuit against Dr. Gibson, Dr. Haji, Dr. Tan, and Ms. Mijares. The lawsuit claimed that the defendants knew or should have known that her husband was at risk for coronary disease and negligently failed to diagnose and treat him.

Ms. Mijares filed a motion asking the court to rule that Mr. Estrada's wife had no case against her because she did not have a nurse–patient relationship with Mr. Estrada. The trial court granted the motion, but ­Estrada's wife appealed the decision. She argued that Ms. Mijares had failed to prove the absence of a nurse–patient relationship. She further argued that Ms. Mijares owed a duty to her husband because she possessed a nursing license. The court rejected this argument, referencing a previous Texas case that had addressed the circumstances under which duty arises.

The court referenced St. John v. Pope,3 in which an on-call physician also claimed there had been no physician–patient relationship to trigger a duty. The court in that case held that professionals do not owe a duty to every person they encounter, that duty “flows from the consensual relationship between the patient and the physician,” and that there cannot be a duty unless that relationship is established.3 Referencing the analysis in the Pope case, the court in the Estrada case held that the mere presence of a professional ­license does not create a nurse–patient relationship or confer a duty. In the absence of such a duty, the case against Ms. Mijares could not proceed.2

Whether a nurse–patient relationship that creates a legal duty is established depends on a mixed analysis of fact and law that comprises many factors. Traditionally, the view has been that a provider must agree to render services to the patient to create that relationship, but case law has been evolving so that liability may be assigned in the absence of such a formal relationship.

In Reed v. Bojarski,4 a New Jersey court evaluated a case in which a physician performed a preemployment screening. Arnold Reed was a heavy equipment operator who was required under Occupational Safety and Health Administration regulations to undergo a preemployment physical, including a chest X-ray. The construction company contracted the preemployment examinations to Environmental Medicine Resources (EMR). EMR subcontracted the examinations to an outpatient medical facility, Life Care Institute, Inc. Michael Bojarski, DO, was the Life Care Institute employee who performed Mr. Reed's physical examination.

Dr. Bojarski was informed by radiologist D.R. De­Persia that Mr. Reed's chest X-ray revealed a widened mediastinum and enlarged heart. Dr. DePersia also advised a follow-up CT scan. However, Dr. Bojarski did not convey the widened mediastinum or Dr. De­Persia's recommendation to EMR. EMR then wrote to Mr. Reed, telling him he was in good health. Mr. Reed was not advised of the widened mediastinum, nor was he told that a widened mediastinum in a man in his 20s can be an indicator of lymphoma.

Approximately six months later, Dr. Bojarski examined Mr. Reed again. Mr. Reed was experiencing flu-like symptoms and had lost 25 lbs. Dr. Bojarski did not ask him whether he knew about or had followed up on the widened mediastinum. The following month Mr. Reed was admitted to the hospital and diagnosed with stage IIB Hodgkin's lymphoma. He died eight months later at age 28. Mr. Reed's wife brought a lawsuit, which proceeded to trial and resulted in a unanimous jury verdict in favor of Dr. Bojarski. Mr. Reed's wife appealed, and the verdict was affirmed by the appellate court. She appealed again to the Supreme Court of New Jersey.

The court framed the question as, “[w]hether a physician, retained to perform a pre-employment physical, has a non-delegable duty to inform the patient of a potentially serious medical condition.”4 In its analysis, the court reviewed multiple cases addressing the duty a physician owes in the absence of a traditional physician–patient relationship. It noted that a physician can still have a duty to act with reasonable care in the absence of that relationship and that courts have moved away from the traditional medical malpractice model, in which that relationship is necessary to impose a duty. In this case, the court held that Dr. Bojarski had not been relieved of his obligation to inform Mr. Reed of a potentially life-threatening finding. It reversed the lower courts and sent the case back for trial. The lawsuit settled for an award within Dr. Bojarski's policy limits.4

This is an evolving area of case law. Some courts have held that providers accepting on-call responsibilities, providing consultations (even informal, “curbside consultations”), or supervising other providers do owe a duty to patients, whereas other courts adhere to the traditional malpractice model that an express provider–patient relationship must be established.

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DUTY

As the first element of a lawsuit, duty must be established before the remaining elements—breach, causation, and harm—can be analyzed. In most cases, duty applies when nurses are rendering care to patients. There are circumstances, however, in which it is not clear that a duty existed, and that must be litigated before the plaintiff can move forward.

Duty of reasonable care. The duty of reasonable care refers to the obligation nurses have to adhere to current standards of practice. This includes following organizational policies and procedures, maintaining clinical competency, and confining activities to the authorized scope of practice, as defined by the state practice act and organizational policies. Nurses also have a legal duty to be fit for practice. Fitness for practice refers to physical, mental, and moral fitness. When nurses do not meet these professional obligations, they are said to have breached their duties to patients. Breach will be discussed in Part 2 of this series.

Duty to rescue. Although health care professionals do not generally have a duty to render services to all people solely by virtue of holding a license, there are cases in which they do have an obligation to render assistance. A legal duty can exist either through common law (court decisions) or through statute (laws enacted by the legislature).

In common law, nurses have a duty to help someone if

  • the nurse created the danger from which the person needs to be rescued—in other words, the nurse's negligence created the dangerous situation.
  • the nurse started helping the person—in other words, other people might not intervene because they see that the nurse has already done so, requiring the nurse to finish the rescue once started.
  • the nurse has a special relationship with the person in need, creating a special duty.

A special relationship exists when one individual is dependent upon another. A parent–child or spouse–spouse relationship is a special relationship, as is an employer–employee relationship. These relationships impose a duty to rescue. Nurses who create dangers for people or who begin rendering assistance can be held to the special relationship duty to act. In the absence of that special duty, a nurse cannot be held liable. Although it can be argued that a nurse has a moral or ethical duty, there is no liability unless there is a legal duty to act.

The government will generally not be held liable for the actions of a governmental employee unless that employee had a special relationship to the injured party. Special relationships can be understood by examining a recent New York case.

In Rennix v. Jackson,5 restaurant worker Eutisha Rennix became ill while six months pregnant. She suffered from asthma and was having difficulty breathing. A coworker approached two emergency medical technicians (EMTs) who were in the restaurant at the time, but they did not respond to her request for assistance. One of the EMTs dialed 911 and requested an ambulance. The EMTs left the restaurant without checking on Rennix. While waiting for the ambulance, Rennix lost consciousness and stopped breathing. Paramedics arrived approximately 15 minutes later but were unable to resuscitate her. She was pronounced dead at the hospital. Her baby was delivered by emergency cesarean section but also died.

Rennix's estate brought an action on behalf of Rennix and her baby against the New York City Fire Department, New York City Emergency Medical Services (EMS), and the City of New York alleging that the EMTs caused the deaths by failing to render medical aid in their official duties. The defendants claimed they could not be held liable because they did not owe a special duty to Rennix. The trial court dismissed the complaint, and the estate appealed.

The appellate court noted that EMS is a “governmental function” and the government cannot be held liable for the alleged negligence of an EMT unless that EMT owed a special duty to the injured person. The court held that Rennix was not in the class of persons intended by the anticorruption law the estate cited. It upheld the lower court's dismissal of the case, citing a previous New York case that held, “Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.”5

Some states have enacted statutes which impose a duty to render assistance to people in need. Those laws might only require notifying authorities, or summoning assistance, but vary in the duties they impose.6 An example of such a statute is Minnesota's Good Samaritan Law,7 which states,

“Subdivision 1. Duty to assist. A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.”

Volunteer vs. assigned. In the work environment, a duty is created when the nurse accepts responsibility for a patient and establishes a nurse–patient relationship. This generally occurs upon acceptance of report from another nurse. Outside the work environment, a nurse–patient relationship is created when a nurse volunteers her or his services. Whether the patient is assigned or the nurse volunteers aid, the nurse–patient relationship is established, creating a duty to the person receiving nursing care.

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IMPLICATIONS FOR NURSES

Duty can be established in many ways. Nurses certainly have a duty of reasonable care for any patients to whom they provide care. They should be aware that they can also have a duty in other circumstances. Nurses should

  • assume that on-call or supervisory responsibilities create a duty to patients, even in the absence of an express nurse–patient relationship.
  • understand that a nurse–patient relationship is established upon acceptance of responsibility for a patient, whether the nurse has received an endorsement report in the workplace or volunteered services.
  • know whether there is a duty to rescue statute in your state and, if so, what it demands.
  • adhere to organizational policies and procedures so as not to relieve employers of responsibility.
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REFERENCES

1. Saunders WH The legal responsibility of the nurse Am J Nurs 1905 5 12 860–73
2. Court of Appeals of Texas, El Paso. Estrada v. Mijares, 407 S.W.3d 803 (2013). 2013.
3. Supreme Court of Texas. St. John v. Pope, 901 S.W.2d 420 (1995). 1995.
4. Supreme Court of New Jersey. Reed v. Bojarski, 764 A.2d 433 (N.J. 2001). 2001.
5. Appellate Division of the Supreme Court of the State of New York. Rennix v. Jackson, 2017 NY Slip Op 5471. 2017.
6. Montana PG Watch or report? Livestream or help? Good Samaritan laws revisited: the need to create a duty to report. Cleveland State Law Review 2018;66(3):533-58. https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=4003&context=clevstlrev.
7. Minnesota Legislature Office of the Revisor of Statutes. 2018 Minnesota Statutes: 604A.01 Good Samaritan law. 2018.
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