Legal File
Elements of negligence and malpractice
By Rebecca Walker, JD, MSN
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Malpractice suits against advanced
practice nurses (APNs) are rising in
number and increasing in severity.
APNs need to understand the basics
of nursing malpractice, including
their liability, options with malprac-
tice coverage, the future of the APN’s
role, and legislative issues such as tort
reform. To assist the APN with this
learning process, the organization the
APNs are employed by, other profes-
sional associations, the colleges of
nursing, and state and national regu-
lators are all valuable resources. In an
analysis of APN practice it appears
that potentially some 20% to 30% of
APN care is delivered by phone, and
may expose the practitioner to a level
of liability that might not have been
previously considered. In deciding
these cases, courts look to establish
what is a reasonable response for a
prudent APN. They determine what
is “reasonable” by looking at policies
and procedures, testimony of profes-
sional experts in the field, and evalu-
ating local and national standards,
as related to causation and injury.
Nursing practice is not just a list of
tasks that one can perform in their
profession; it is a scientific process
that changes with healthcare advance-
ment and public policy.
Any written scope of practice, be
it state regulation or national profes-
sional standard, must be written
broadly enough as to not limit profes-
sional growth, while at the same time
providing the practitioner guidelines
for determining limitations. This arti-
cle will review standards of practice,
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the elements of civil negligence, and
apply the rules of law to APN
professional practice.
The Joint Commission defines
negligence as the “failure to use such
care as a reasonably prudent and care-
ful person would use under similar cir-
cumstances.” The Joint Commission
also defines malpractice, in part, as
“improper or unethical conduct or un-
reasonable lack of skill by a holder of a
Tort law is a specific area of law that encompasses
professional or official position.”1 Ac-
cording to the National Practitioner
Data Bank, more APNs are being
named in malpractice actions every
year. As more autonomy is awarded
and APN roles expand to meet the de-
mands of society, the APN will be ex-
posed to a heightened level of liable for
medical malpractice.
■ Tort law
Although there are many variations in
APN standards of practice depending
upon specific licensure, specialty, col-
laborative requirements, prescriptive
authority, and the like, one constant re-
mains: the requirement to act reasona-
bly within that specific area of practice.
In evaluating legal liability, the act of
being “reasonable” is determined
through the application of tort law.
Tort law is a specific area of law
that encompasses civil negligence.
When sued for medical or nursing
malpractice, the Court must deter-
mine whether or not the practitioner
was negligent, and if found negligent
by the Courts, professional malprac-
tice has occurred. Medical malprac-
tice has become a specialized area of
legal practice where attorneys focus
on claims involving healthcare prac-
titioners. As such, the attorney
should be well versed in regulatory
requirements, scope of practice, and
professional organization recom-
mendations and standards.
civil negligence.
When working with legal counsel,
APNs should make certain that the
attorney fully understands the profes-
sional standards and scope of practice
for that specific APN specialty and
doing this will provide for a better
working relationship with legal
counsel as well as an improved under-
standing of the nurse’s professional
limitations.
■ Negligence
Claims based on medical malpractice
will almost always encompass the ele-
ments of civil negligence. Although
civil negligence claims may be compli-
cated by legal rules, subparts to legal el-
ements, and prior common law
decisions, there are four basic elements
to all negligence claims. In determining
whether or not negligence has oc-
curred, the general rule in civil tort law
requires that if in fact one of the ele-
ments is not demonstrated under “a
preponderance of the evidence” evi-
dentiary standard, the entire claim for
The Nurse Practitioner • May 2011 9
 Legal File
negligence should fail and the practi-
tioner should be successful in defend-
ing the claim. It would be naive to
believe that all rules of law are applied
evenly, and as such, to protect their
practice APNs should have a basic un-
derstanding of the elements of negli-
gence.
Looking specifically at negligence,
the first element to be established is
that a “legal duty” was owed. Legal
All APNs must be acutely aware of the different facility
policies for independent practitioners.
duty is established by evaluating
the practitioner’s scope of practice.
The ultimate question is “would a
reasonable or prudent APN in the
same or similar circumstances have
acted or reacted the same?” The
first tier in evaluating whether or
not the legal duty is owed will be
the policies and procedures under
which the APN practices. Regard-
less of where the APN practices,
there will always be policies and
procedures that will establish the
standards of care. For example, if
the APN practices in a private prac-
tice and is caring for a client in a
hospital setting, the APN will be re-
sponsible for practicing within the
limits of the hospital policies while
caring for that client in that facility.
All APNs must be acutely aware of
the different facility policies for in-
dependent practitioners. After eval-
uating the facility policies the legal
analysis will turn to local boards of
nursing licensure, national regula-
tory standards and professional
organizational standards, along
with any professional positional
statements or practice guidelines to
determine standards of care. To
combat the task of knowing what
these standards are, the APN
10 The Nurse Practitioner • Vol. 36, No. 5
Copyright © 2011 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
should be active in local and na-
tional organizations to keep up
to date on changing scopes of
practice.
■ Breach of legal duty
The second element to be determined
by the Court after establishing the legal
duty is to determine whether or not
there was a “breach” of the legal duty.
Breach of legal duty takes into consid-
eration the legal analysis of “foreseea-
bility.” Although commonly one of the
key issues litigated, Restatement,
(Third) of Torts addresses foreseea-
bility as “the ability to perceive or
reasonably anticipate that an injury
could occur from the act or omission
of a legal responsibility.”2 Therefore,
the next step will require evaluating
whether or not it was perceivable that
the damages asserted by the plaintiff
were foreseeable when the duty owed
by the practitioner was breached.
■ Causation
The third element of civil negligence is
causation. Although this element has
other rules of law and requirements to
be successfully established, it simply
links the breach of the practitioner’s
duty to the damages asserted. This ele-
ment answers the question “was the in-
jury ‘caused’ by the breach of legal
duty?” Causation contains two impor-
tant subparts. The first is “cause in
fact.” Cause in fact analyzes the practi-
tioner’s actions to determine if it were
not for the breach of the legal duty, the
injury would not have occurred. This
element requires there be some direct
link between the actions of the practi-
tioner and the injury. In legal analysis
of general causation, if it is determined
that some other superseding event oc-
curred between the breach of duty and
the injury, the Court may determine
the original practitioner is not liable for
the damages as asserted by the plaintiff.
The second part of the causation
element is “proximate cause,” which
is often referred to as legal cause.
This sub-part is much more difficult
to prove because it also involves the
issue of foreseeability. Proximate
cause is defined as “an act from
which an injury results as a natural,
direct, uninterrupted consequence
and without which the injury would
not have occurred.”3
Proximate cause is normally de-
termined to be the primary cause of
an asserted injury. It is not necessarily
the closest cause in time or space to
the injury, nor is it the first event that
sets in motion a sequence of events
leading to an injury. In summary,
proximate cause generally produces
particular, foreseeable consequences
without the intervention of any un-
foreseeable or independent cause.
To make this element even
more confusing, proximate cause of
an injury sometimes requires a
deeper legal analysis. Courts have
devised the “but for” or “sine qua
non” rule, which considers whether
the injury would not have occurred
“but for” the defendant’s negligent
act. If an injury would not have oc-
curred but for a defendant’s act, it
may establish that the particular act
or omission is the proximate cause
of the harm. However, this does not
necessarily establish clear liability
since a variety of other factors can
come into play in tort actions. Some
jurisdictions may also use the “sub-
stantial factor” formula to deter-
mine proximate cause. This rule
considers whether the defendant’s
action or inaction was a substantial
factor in producing the harm. If the
act was a substantial factor in bring-
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 Legal File

ing about the damage, then the de-
fendant will be held liable unless he
or she can raise a sufficient defense
to refute the claims. For example, a
nurse anesthetist administered an
excessive dose of diazepam to an
elderly patient waiting to go into the
OR. After receiving the preoperative
sedation, the patient was wheeled on
a stretcher to the hallway outside the
OR doors to await the procedure
where the patient subsequently fell
property, and loss of current and
projected income.
General damages
These are reimbursement payments
for damages that do not readily lend
themselves to quantitative measure-
ment, commonly known as “pain
and suffering.”
■ Punitive damages
These are reimbursement payments for
accredited+organizations/laboratory+services/
sentinel+events/glossary.htm.
2. Goldberg J, Sebok A, Zipursky B. Tort Law, Re-
sponsibilities and Redress. 2nd ed. New York: Aspen
Publishers; 2008.
3. West’s Encyclopedia of American Law. 2nd ed.
2008 The Gale Group, Inc. Summary Report on
the National Practitioner Data Bank. 2008. http://
www.npdb-hipdb.hrsa.gov/resources/reports/
NPDBSummaryReport.pdf
4. Glannon JW. The Law of Torts: Examples and
Explanations. 4th ed. New York: Aspen Publish-
ers; 2010.
Rebecca Walker is a State Legislator in the Delaware
General Assembly and a nurse in the Christiana Care
Health System Emergency Department, Christiana, Del.

off the stretcher and fractured his
hip. As a result, the patient brought a
claim against the CRNA for the med-
ication error asserting that he would
not have fallen off the stretcher if he
was not overmedicated with di-
azepan, and therefore he would not
have fractured his hip. During litiga-
tion it was identified that the patient
was left alone and the stretcher rail
was left down by the transport per-
sonnel. Therefore, “but for” the rail
not being placed back up, the patient
would not have been injured. This
action will likely “cut off” the liability
for the fall as related to the adminis-
tration of the diazepam, and the
CRNA would likely win the case.
■ Damages
The last element of negligence is dam-
ages. Damages are proven when it is
determined the injury was a result of
the practitioner’s actions. In civil cases,
monetary damages are awarded when
a plaintiff is successful against the
practitioner for the injury suffered.
The intent of awarding damages is to
make the plaintiff whole, meaning as if
the negligence never occurred.
There are essentially three types
of civil damage awards:
Special damages
These are reimbursement payments
for out-of-pocket expenses, includ-
ing medical bills, legal charges, cost
of repairing damaged or destroyed
damages due to gross negligence by a
DOI-10.1097/01.NPR.0000396597.73019.45
defendant.4 The amounts awarded to a
successful plaintiff are determined by
the jurisdictional limits and jury. That
being said damage amounts vary widely
by region across the county. Awards are
usually much higher in metropolitan
areas and much lower in rural commu-
nities, depending upon the type of in-
jury and local socioeconomic culture.
■ Maintaining a high standard
of practice
During the course of an average
work day, APNs make critical deci-
sions, perform skilled tasks, pre-
scribe medications, and guide
healthcare decisions. This article fo- Solve the
cused on the key elements of negli-
gence and malpractice. When scope Menopause
of practices are followed, keen as-
sessment skills are utilized, Puzzle.
evidence-based research is consid-
ered, and actions are properly per- It’s easier to solve a puzzle when
you have the answers—and when
formed and documented, APNs
it comes to menopause, The North
should never come across a profes-
American Menopause Society
sional negligence claim that is liti-
(NAMS) has them. For more than
gated successfully. As nurses, we
20 years, NAMS has provided
should not practice defensively. We
up-to-date, accurate, unbiased
must always practice to the highest information about menopause,
standard and stand true to our reg- helping women and their health-
ulatory requirements. Knowledge is care providers make informed
power and the more we know about health decisions at menopause and
our practice, the safer we are. beyond.
REFERENCES
1. Joint Commission on Accreditation of Health-
www.menopause.org
care Organizations. Sentinel Event Glossary of 174
Terms [website]; 2003. http://www.jcaho.org/

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