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A Guide to Nursing Legal Liability for Medical Malpractice

As with physicians, nurses can be surgical instrument found to have hospital has a duty to provide for the
held liable for medical malpractice, been left in a patient or the incorrect safety and welfare of the patients
personal injury and wrongful death. reading of a diagnostic test. (2) within its walls which includes hiring
A broad overview of medical mal- Assumption of Risk - the possible only competent nurses, providing
practice can be summarized by 5 risk was conveyed to the patient who competent supervision, providing
“D”s: then consented to the procedure and training as warranted, and requiring
Duty of care: The legal duty of care (3) Contributory negligence – that nurses to adopt and follow stipulated
by a nurse owed to the patient or the patient did or did not do some- policies and procedures.
client in Florida is specified in the thing that contributed to the injury – Even if the nurse is not a direct
State of Florida Nurse Practice Act. is admissible in Florida and is employee, the hospital may be liable
Another standard that can be refer- weighed by the jury when determin- for the acts of an independent con-
enced is the American Nurses ing the amount of any awarded dam- tractor if the person suing can prove
Association’s Code of Ethics for ages. the hospital held itself out to be the
Nurses. BY LINDA A. SIMUNEK, The National Practitioner Data provider, the patient looked to the
Deviation in the standards of RN, PHD, JD Bank is a confidential information hospital as the one providing the
care: At their most basic, malprac- clearinghouse created by Congress to care, or the patient accepted the serv-
tice cases examine actions taken by protect health care quality, protect ices in the reasonable belief they were
the nurse or the omission to take to what a prudent and reasonable RN the public, and reduce health care being provided by the hospital or its
needed action. Those will be judged would do under similar circum- fraud and abuse. It collects informa- direct employee.
against the standards of care set by stances. tion on medical malpractice pay- A lawyer’s obligation is to his or her
the state as well as nursing care pro- Damages: The heart of any case is ments, federal and state licensure and client and I would advise any nurse
fessional organizations and the the injury that can be proved to have certification actions, adverse profes- facing legal action to seek independ-
employer’s policies and procedures. happened to patient’s physical/emo- sional society membership actions, ent counsel separate from that which
Direct causation: Medical malprac- tional health and the estimated cost health care-related criminal convic- may be offered by the employer.
tice is tried in civil court where the to compensate the patient or, if the tions and civil judgments and other
person who is suing must prove a injury is alleged to have caused the adjudicated actions or decisions. A member of the Broward County Bar
preponderance of evidence that there patient’s death, to his or her heirs. Deviation from a standard of nursing Association and the Weston Bar
is a greater than 50 percent chance Defenses: Each case is different but is reason to file a report and for pos- Association, Linda A. Simunek is Interim
that the person being sued is respon- there are three possible defense sible disciplinary action by the State Associate Dean & Professor of Nursing
sible for the damage. To prove or dis- strategies to keep in mind: (1) The Board of Nursing; the element of at Broward College and has served on
prove that, lawyers call upon expert Statute of Limitations in Florida is damages or injury to the patient or the Florida Board of Nursing. She may
witnesses. A licensed RN testifying in two years from the time of the action client is not a necessary requirement be reached at lsimunek@broward.edu
a case against a licensed RN will rely or omission, or, four years (the for possible State Board of Nursing and (954) 201-6932.
on the medical records for evidence Statute of Repose) in the case of action on a nurse’s license.
of deviation from standards of care as something being discovered such as a A healthcare provider such as a

FIU Nursing Awards First Traineeships for

Federal Pilot Program to Promote Rural

Primary Care Workforce

The Nicole Wertheim College of Nursing & Health Sciences at Florida
International University (FIU) in Miami has awarded $100,000 in traineeship grants
to five FIU nurse practitioner graduate students to participate in the pilot of the
Advanced Nursing Education Workforce (ANEW) program.
ANEW is a two-year nursing education initiative funded by the U.S. Human
Resources & Services Administration for $1.39 million specifically to prepare
advanced practice nurses to provide primary care in rural and underserved areas
through academic and clinical training.
“Many of today’s 60 million rural Americans are uninsured, at risk for increased
health risk behaviors, and live in poverty at even higher levels than what we see in our
big cities,” remarked Tami Thomas, Ph.D., R.N., FAANP, FAAN, associate dean of research
for the college and ANEW grant project director.
Dr. Thomas added that geographic isolation further exacerbates the primary care gap for rural
communities. “ANEW addresses this inequity by familiarizing nurse practitioners with the chal-
lenges and opportunities of working in rural health care settings and preparing them to work to the
fullest scope of their abilities.”
The health departments of Glades and Hendry counties near Florida’s Lake Okeechobee are ANEW Trainees (l-r): Arnold Altiveros, Luis Cuza, Danielle Steele,
partners in the project, providing the five clinical sites and onsite instructional supervisors to Angelina St. Germain, Mitchell Guanzon
guide the trainees during the three-to-six-month training program. FIU Nursing faculty will
supplement the training by using telehealth systems to help ANEW trainees deliver care at the
clinics.

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40 May 2018 southfloridahospitalnews.com South Florida Hospital News