Can a Nurse Be Sued for Malpractice?
Credit: SDI Productions / Getty Images- Depending on the circumstances, nurses can be sued for medical malpractice or negligence based on their actions or inaction.
- Roughly 18% of closed medical lawsuits from 2018 to 2021 included registered nurses (RNs), licensed practical nurses (LPNs), nursing assistants, and nursing students.
- Common allegations against nurses include lack of patient monitoring, medication errors, patient falls, or pressure injuries.
If you’re wondering if nurses can be sued for malpractice, the answer depends on where they work. In August 2022, the North Carolina Supreme Court struck down a 90-year-old precedent that protected nurses from liability — this means that nurses in the state can be sued, even for following doctor’s orders.
About 18% of closed medical lawsuits between 2018 and 2021 included RNs, LPNs, nursing assistants, and nursing students. It’s not common for nurses to be sued for malpractice, but if you find yourself involved in a lawsuit, here’s what the attorneys we spoke to recommend you do (and don’t do).
Defining Medical Malpractice
According to Min Hwan Ahn, an attorney in Pennsylvania, “malpractice is a type of negligence or failure to provide the proper care that results in harm to the patient. Treatment errors are mistakes made during the course of providing care, such as administering the wrong medication or performing a procedure incorrectly.”
Thomas Simeone, personal injury attorney and adjunct law professor in Washington, D.C., notes that each state has its own rules and regulations that govern medical malpractice. “Those rules will determine whether a claim for a nurse’s negligence is considered medical malpractice or not. That will depend on the services at issue, where they were performed, and other staff involved,” he says.
The following actions and inactions can lead to a malpractice lawsuit:
- Failure to monitor the patient and respond to a change in vital signs promptly
- Failure to update the patient’s chart with changes or accurately record their condition
- Failure to ensure the medical equipment is working properly
- An error in treatment administration or routine care, such as taking blood pressure or drawing blood, that causes injury
There are some cases where inaction is necessary. For example, it may be appropriate to withhold digoxin if a patient’s pulse is less than 60 beats per minute. However, if the nurse does not document the patient’s pulse rate and that the medication was not given, they can be sued for negligence and cited for failure to administer medication without cause.
Can a Nurse Be Sued for Malpractice?
Nurses can be named in medical malpractice lawsuits with other practitioners. The review of medical malpractice lawsuits found the top accusations against nurses were patient monitoring (45%), medication mistakes (18%), patient falls (14%), and pressure injuries (10%).
When it was alleged the nurse did not monitor their patient, it resulted in death 49% of the time. Medication errors are potentially catastrophic; nearly 40% of medical malpractice lawsuits include a drug administration error.
Communication is an important factor in patient care, and a lack of communication can result in malpractice. For example, a 62-year-old woman’s son brought a wrongful death lawsuit against a nurse because she didn’t notify the doctor that the color and odor of his mother’s emesis had changed and the woman died not long after.
In another claim, an 80-year-old man was transported to the emergency room after experiencing an unwitnessed fall in a nursing home. While in the emergency room, the patient was noted to be confused, uncooperative, and incontinent. His tests were negative, but he fell again in the emergency room and experienced a right hip fracture which required surgical reduction.
Despite efforts to prevent a fall, the patient was not located within direct sight of the nurses’ station and should have received additional monitoring to minimize the risk. The parties reached a settlement and the nurse was responsible for 45% of the total settlement.
What to Do if You’re Sued for Malpractice
Five attorneys offered advice on what nurses should and shouldn’t do after being notified that they are being sued. Following their advice can help protect you financially and professionally.
What You Should Do
Simeone recommends that the first thing you do is notify your nursing supervisor so the lawsuit can be reported to the hospital’s malpractice insurance company. While the hospital’s malpractice insurance may cover the nurse, failure to report the claim in a timely fashion can result in denial of coverage.
Ahn recommends that nurses immediately seek legal representation from an attorney familiar with medical malpractice laws in their state. They can help provide guidance and protect the nurse’s rights in defense against the lawsuit.
Suzanne Natbony is a California healthcare attorney. She recommends that nurses review the patient’s records and reports to ensure that everything is documented properly. Nurses should locate all consent forms, incident reports, records, charts, and other related documents.
Simeone also recommends that nurses preserve any other documentation, including emails, photos, videos, or notes relevant to the case.
Attorney Martin Gasparian notes the importance of identifying a trusted individual who can vouch for your credibility. This could be another doctor or a nurse who also worked with the same patient.
Gasparian also recommends that you present only the facts in any communication with the opposing counsel or during any deposition. Leave any assumptions you may make about what has happened, as these never help your case.
Be prepared to get involved in the legal process. Learn the terminology and the plaintiff’s arguments, and focus on working with the legal system to defend your rights.
Ahn and Natbony stress the need to stay calm and address your personal stress. Natbony suggests nurses try to compartmentalize the situation by focusing on getting the facts to assist their defense attorney. Otherwise, they should engage in self-care activities, such as getting counseling, healthy eating, and exercise.
Ahn suggests that nurses also seek support from their colleagues, friends, and family as a medical malpractice lawsuit creates significant stress.
What You Should Not Do
Simeone cautions nurses that they should never speak with the patient, the patient’s family, or the patient’s attorney about the case to explain themselves or get more information. He cautions that nurses should not speak to anyone without their attorney present.
Gasparian cautions nurses not to hide any information about the case. When you withhold information, it makes it appear that there are holes in the case, which can raise suspicions.
Ahn recommends that nurses not ignore a lawsuit or try to handle it independently. Medical malpractice law is complex and difficult to navigate on your own. In the same way a nurse would not assume they could do heart surgery, they should not assume they can take care of their own medical malpractice case.
Ahn also recommends that you not post anything on social media about the case. While you may feel your friends and family can help provide you with public support, it can only damage your case in the long run.
Natbony reminds nurses not to breach confidentiality. Posting on social media can breach confidentiality about the case, as can discussing the matter in person or over email with anyone except your defense attorney.
Dante Weston is the senior founding partner at Donaldson and Weston. He reminds nurses that anything posted on social media and later deleted can still be found. There’s a digital footprint in the cloud and the attorney for the plaintiff can subpoena those records from the social media platform.
Weston also cautions nurses not to say anything that makes it sound like they did something wrong. Don’t say things such as “I did absolutely nothing wrong,” “I know I’m 100% right,” or “I’m sorry.” While it may make you feel better, it is not in your best interest in the long run.
Meet Our Contributors
Min Hwan Ahn, founder of EZ485, is a highly experienced and respected attorney. He is a member of the American Immigration Lawyers Association and has spent the past 20 years dedicated to the field. Throughout his career, Ahn has built a reputation as a knowledgeable and skilled legal professional, particularly in the area of immigration law.
Thomas J. Simeone is a trial attorney and managing partner at Simeone & Miller. Simeone appeared on MSNBC regarding a client of his who filed a civil rights action against the Library of Congress. He has also appeared as a legal commentator on Fox News on several occasions. Simeone has served as lead trial counsel in several cases resulting in large jury verdicts and settlements, in both state and federal court, including class actions, car accidents, slip and falls, medical malpractice, product liability, workplace injuries, and civil rights.
Suzanne Natbony is a licensed California healthcare lawyer, practicing transactional and regulatory-compliance law, while also being an entrepreneur with her own healthcare product company. She is general counsel to a multistate medical spa franchise and other medical spas and physicians around the U.S.
Martin Gasparian started Maison Law after working at the oldest law firm in Los Angeles. Today, Maison Law provides skilled, experienced, and personalized legal guidance to the voiceless and the injured in the Central Valley. His firm represents people, not corporations. At Maison Law, clients are their priority, and they work with the best experts in the field to help win cases.
Dante Weston is a senior founding partner at Donaldson & Weston. He began his professional career as a litigator and civil trial attorney in 2006, after earning an undergraduate degree in psychology with a focus in business engineering from Brown University. He ultimately earned a juris doctorate from Stetson University College of Law. Dante opened up his own law firm in April 2012. Donaldson & Weston has offices across South Florida, located in Stuart, Palm Beach, and Lake Mary. They have served over 10,000 clients and recovered over $100 million.
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