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Departments: Legal Issues and Risk Management

Elements of Negligence in Medical Liability

Second in a 2-Part Series

Editor(s): Cypher, Rebecca L. MSN, PNNP, President and Founder

Author Information
The Journal of Perinatal & Neonatal Nursing: April/June 2022 - Volume 36 - Issue 2 - p 112-114
doi: 10.1097/JPN.0000000000000645
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Regardless of a clinician's field of practice, medical malpractice allegations in the United States are a regular occurrence in today's legal system. Though, there is variation among health disciplines in which an allegation rises to a height where a claim leads to an indemnity payment. Contrary to popular belief, perinatal and neonatal practice is not necessarily reflective of a higher proportion of malpractice allegations compared with other domains.1,2

A national analysis of events from 2007 to 2016 revealed a 44% decline in obstetric claims being filed.3 A decrease in cases is attributed to long-term patient safety initiatives such as treatment of severe hypertension and postpartum hemorrhage protocols in an obstetric setting.

Furthermore, a recent nursing liability exposure report showed that home care (eg, home health, hospice, and palliative care), adult medical-surgical, gerontology, and emergency or urgent care had higher closed claims numbers with indemnity payments greater than $10 000.2 Obstetrics and critical care were listed after these specialties, while neonatal practice was not mentioned in upper-level rankings. However, due to potential lifelong consequences related to negligence, obstetrics continues to incur a disproportionate financial loss compared with different specialties.3

In review, tort refers to a branch of civil law. Tort encompasses 3 categories: negligence, intentional tort, and strict liability. Negligence is essentially a failure to deliver a level of care that someone of a similar professional background and ordinary prudence would have exercised under similar circumstances.4 A general legal requirement is to prove 4 elements meet criteria for negligence if a patient feels obliged to accuse clinicians of malpractice. These include duty, breach of duty, causation, and damages. In part 1 of this series, duty and breach of duty were described in detail.5 This column completes a 2-part series addressing the 4 elements of a negligence claim and will examine causation and damages.


There is an obligation to verify that a breach of duty, negligent act, or failure to act can be linked to an actual cause of a patient's injury. Apart from being quality-of-care matters and potential national patient safety standards violations, breach of duty is inconsequential unless a breach results in injury6 To prove negligence's third element, causation, a plaintiff's legal representation is responsible for proving a direct or actual relationship between care that is delivered by an individual or healthcare team and subsequent harm. A perinatal or neonatal clinician cannot be held accountable for an injury or damages if these wrongs are not a direct result of negligent acts. Conversely, a plaintiff's legal team may be able to demonstrate a legally sufficient correlation between a breach of duty and injury while acknowledging that this may not be an injury's sole cause.6,7. This principle represents proximate cause.

Both actual and proximate causes have distinctive differences. Actual causation is a straightforward concept and essentially means that a defendant's actions are the most direct cause of an injury.7 Additional terms used for actual cause include cause in fact or factual cause.

A but-for test is commonly used in tort law and utilized to determine actual causation in a malpractice allegation.7,8 But-for tests are a legal tenet characterized as a notion that a patient would not have been injured but-for a clinician's actions. For instance, an intraoperative bladder injury resulting in an extensive repair and a complicated postoperative course would not have occurred if a causal event, cesarean birth, had not been performed. A direct correlation between an obstetrician's actions and a patient's injuries was ascertained.

In contrast, proximate cause is more complex. Proximate cause is where a defendant's actions are reasonably and closely related to injuries incurred by a plaintiff but are not automatically an injury's sole cause.7 Several states also use a but-for test in determining proximate cause knowing that a clinician's behaviors and actions might not have been part of an initial or final encounter during the course of a patient's care.7 Some states use a substantial factor test instead of a but-for test. A substantial factor essentially means that if a defendant's actions were a significant factor in causing an injury, a healthcare provider is found guilty of negligence.8

Proximate cause requires foreseeability, which begs a question of how likely a clinician could have or should have reasonably foreseen harms that resulted from actions.9 If a defendant's legal representation can demonstrate that injuries or damages were not foreseeable, a clinician may not be implicated for supposed negligent acts. For example, a fetal heart rate tracing may demonstrate a change from a baseline of 140 beats per minute, minimal variability, and episodic accelerations to a bradycardia of 80 beats per minute with absent variability and loss of accelerations. An abrupt tracing change led to an emergent cesarean birth. An attorney may question whether a patient's obstetric team should have seen a forthcoming decreased rate prior to a baseline change, thus averting an abnormal fetal heart rate and an operative birth.


Finally is the element of damages. Once causation has been substantiated by medical record facts, expert witness testimony, and interrogatories, a plaintiff's legal representatives will need to ascertain that an injury caused compensable damages.6 Specifically, if an injury is proven because criteria for duty, breach of duty, and causation are met, a patient may be entitled to damages. Typically, a sum of money is involved. Damages can take an economic form, such as lost wages (present or future) and healthcare expenses. Damages may also be noneconomic, such as pain and suffering endured by an individual, mental anguish, disfigurement, and loss of change of survival. There is also a punitive aspect to damages, which essentially means punishing a clinician who is thought to be a wrongdoer.

A life-care planner is often used during this phase of litigation. These individuals create a strategy of care for a patient's anticipated life expectancy. A plan is based on type and severity of an injury and associated expenditures related to a patient's level of injury. Experts calculate expenses for items such as equipment as well as necessary treatments and services that are required for future care. For instance, an infant is diagnosed with kernicterus after mismanagement of hyperbilirubinemia resulting in permanent neurologic injury and deafness.

Part of a short-term treatment plan is enteral feeding. Tubing, feeding bags, gloves, and supplementary equipment are required for daily care. In addition, hearing aid devices and audiology appointments are examples of expenditures for deafness. A life-care planner will determine a base or unit cost for associated equipment and supplies, a replacement frequency schedule, and anticipated lifetime costs.

Putting the elements together

A patient and obstetric team were confronted with a prolonged second stage of labor and fetal heart rate decelerations necessitating an operative vaginal birth via vacuum extraction. After informed consent, completion of a safety checklist, and confirming an adequate anesthesia level, a vacuum was applied at a +2 station. Over a 29-minute time frame involving 5 sets of pulls by a physician, minimal descent in station, and 6 vacuum cup dislodgements, an infant was born via a cesarean birth with low Apgar scores. Prolonged neonatal resuscitation was required and paired umbilical cord gases were reflective of an acidotic newborn. A large subgaleal hemorrhage and subsequent hypovolemia, not respondent to treatment led to neonatal death.

Duty was proven by establishing a patient and healthcare team relationship existed on the basis of medical records and depositions. Clinicians named as being significantly involved in this example included a physician who performed a cesarean birth after an attempted vacuum procedure. A nurse assigned to provide care during second stage and birth and a charge nurse who was present to record delivery events were also named as being significantly involved clinicians. While a neonatal team was present for birth and performed resuscitation, duty and breach of duty were not established by neonatal experts hired to review these events.

Breach of duty was determined by obstetric experts who reviewed nationally recognized recommendations applicable to operative vaginal birth, manufacturer's guidelines, and documents deemed pertinent. To give an example, these individuals reviewed hospital policies for operative vaginal birth and second-stage management. A detailed stop rule clearly stated that a vacuum procedure is discontinued after 3 pop-offs, lack of progress with each pull, or after a 15-minute time limitation is met. Clearly, this physician's actions were beyond what a reasonably prudent person would do when confronted with a difficult second-stage labor and were against hospital policy. Again, if rendered care fails to meet an applicable standard of care, breach of duty may be established by plaintiff's counsel.

From a nursing perspective, plaintiff expert witnesses established that reasonably prudent nurses are responsible for knowing basic vacuum processes including general indications, contraindications, and when discontinuing a procedure may be indicated (eg, more than 3 vacuum cup dislodgements). Fundamental knowledge allows nurses to be able to communicate to a physician or a midwife that procedure limits have been met. Failure to speak up and use a chain of communication was found to be a breach of duty in the aforementioned example.

Neonatal injuries, such as intracranial hemorrhages and neurologic injury, have been reported with operative vaginal births. In this clinical scenario, testimonies from several plaintiff physician experts established causation. While a prolonged second stage and fetal heart rate tracing concerns are both indications for operative vaginal birth, hired experts found that inappropriate use of a vacuum device, as determined by recognized standards, hospital policy, and manufacturer's guidelines, led to an adverse neonatal outcome. In turn, while there is no amount of financial compensation that can replace an infant's death from substandard care, this family was compensated for healthcare expenses incurred from inpatient care as well as noneconomic reparation.


It is no surprise that malpractice allegations in a perinatal or neonatal setting may compel patients to file a liability claim. Although remarkably a contemporary review of more than 10 000 obstetric and gynecologic closed claims discovered that 59.5% of allegations were dropped, withdrawn, or dismissed,10 only 27.7% of claims were settled. Surprisingly, 7.5% of claims resulted in a defendant verdict, and only 1.1% went toward a plaintiff judgment. Remaining claims fell under alternative dispute resolution or were unknown. While these figures are reassuring, liability allegations will continue to have significant nursing implications. Therefore, nurses can no longer be naive about fundamental concepts in medico-legal environment. By understanding judicial cornerstones, which include the required 4 elements of negligence, nurses may be able to limit or perhaps prevent malpractice.

—Rebecca L. Cypher, MSN, PNNP
President and Founder
Cypher Maternal Fetal Solutions, LLC
Gig Harbor, Washington


1. Schaffer AC, Jena AB, Seabury SA, Singh H, Chalasani V, Kachalia A. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710–718. doi:10.1001/jamainternmed.2017.0311.
2. Nursing Service Organization, CNA. Nursing Professional Liability Exposure Claim Report (4th ed): Minimizing Risk, Achieving Excellence. Published June 2020. Accessed January 10, 2022.
3. CRICO Strategies. Medical malpractice in America: a 10-year assessment with insights. Published 2018. Accessed January 10, 2022.
4. Cornell Law School Legal Information Institute. Negligence. Accessed January 11, 2022.
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8. Cornell Law School Legal Information Institute. But-for test. Accessed January 16, 2022.
9. Cornell Law School Legal Information Institute. Foreseeability. Accessed January 16, 2022.
10. Glaser LM, Alvi FA, Milad MP. Trends in malpractice claims for obstetric and gynecologic procedures, 2005 through 2014. Am J Obstet Gynecol. 2017;217(3):340.e1–340.e6. doi:10.1016/j.ajog.2017.05.037.
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