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When a lawsuit is brought against a health care provider by a patient or the patient’s family, the most common claim is that the health care provider has been professionally negligent. Such claims are subject to certain rules and theories of law that have been created to provide some measures of protection against meritless claims. In this paper, we are going to explore the rules and theories surrounding claims of professional negligence against health care providers.
General Liability in Health care practice
General liability springs from three sources: criminal, contractual, and tort. Contractual and tort cases are both considered to be civil actions. In a civil action, the plaintiff is a private citizen or entity who believes they have been wronged in some fashion. The standard of proof by which the plaintiff is required to prove his or her case is called a preponderance of the evidence. This is a lower standard than that used in criminal cases and requires only that the jury decide which evidence is more believable to support any fact than any other evidence. As a review, ordinary negligence or a person doing something which the reasonably prudent person would not do; or failing to do something which the reasonably prudent person would do under the circumstances is a necessary ingredient for tort liability (Brent 1997).
The question of duty was addressed in an early Alabama case. A woman went to the hospital to have a baby. She and her husband believed the baby was coming imminently. The wife asked the nurse to call the doctor but the nurse determined that the doctor was unnecessary at the time. The husband asked the nurse to remain with the wife when the nurse sent the husband from the room. Unfortunately, the nurse likewise left the patient and ignored the repeated call button requests for assistance. The baby was born on its own, strangled in the umbilical cord. The jury found that the nurse had failed in her duty to observe the laboring woman and to use such judgment as was required of a nurse to summon the physician to attend the birth. The jury felt the duty extended to all things that should be obvious to a nurse if she were attending reasonably to the duties incumbent on her as a professional (Birmingham Baptist Hospital Vs. Branton, 1928).
Depending on the jurisdiction, the nurse’s duty will be found in statutory codes, regulatory laws such as those governing the board of nursing, and/or case law. In professional negligence cases involving nurses, the duty can also be found in the customs and practices of nurses, which rise to the level of standards in the profession. Each element involved in the standards of care can be the subject of spirited argument, which is often the gist of a malpractice action when it reaches the trial court (American Nurses Association, 1973).
In conclusion, apart from the duty to do the right thing and to avoid the wrong thing, a practicing nurse has a general duty to possess the knowledge, skill, and judgment commensurate with his or her education, experience, and position. The adequacy of a nurse’s performance is tested with respect to the performance of other nurses. A registered nurse’s duty is identical to that owed by the hospital, that is, to exercise the care required by the patient’s condition and to protect the patient from danger (Daniel Vs. St. Francis Cabrini Hospital of Alexandria, Inc., 1982)
American Nurses Association Standards of Nursing Practice. Washington, DC; American Nurses Association. 1973.
Brent, Nancy. Nurses and the Law: A guide to principles and application. Philadelphia: W.B, Saunders. 1997. Print.
Birmingham Baptist Hospital Vs. Branton, 218 Ala. 464, 118 So. 741. 1928.
Daniel Vs. St. Francis Cabrini Hospital of Alexandria, Inc., 415 So 2d 586 (La. App.). 1982.