Incorporating Legal Perspectives into Orientation

The RN needs to know the competency, skills, and abilities of the persons to whom he or she is delegating tasks. He or she must evaluate these persons on an ongoing basis, continually evaluate patients, and report persons who are incompetent or who fail to perform tasks safely.

Elements of professional malpractice
Professional malpractice cases review the patient care provided to determine whether deviations from the appropriate standard of care took place. This is usually initiated with a review of the medical record. Standards of care are measured according to practice acts, professional scope and standards of care, and organizational policies and procedures.

To prove liability for malpractice, four elements must be shown (Morales, 2009):

• Duty. There must be a duty that is owed to the patient as indicated by the nurse-patient relationship. This can be interpreted broadly. As a simple example, nurses have a duty to provide a safe environment for patients. Patients must be able to reach their call bell when they need to get out of bed to go to the bathroom. Part of the safe environment, and nurses' duty, is to make sure patients' call bells are within reach and they know how to access them.
• Breach of duty. Breach of duty means nurses fail to fulfill their duty to the patient. Suppose nurses fail to adequately assess patients' environment. The nurses know a patient needs assistance to ambulate to the bathroom but fail to secure the call bell within the patient's reach. The patient can't reach the call bell and calls out for help. Unable to wait until someone hears him, the patient gets out of bed and falls. The duty to the patient was breached.
• Injury. To prove liability, injury must occur as a result of the breach of duty. The patient who fell in an attempt to get to the bathroom breaks his hip as a result of the fall. He was injured due to a breach of duty. The injury must also result in monetary damage. In this example, the additional expense of hip surgery and extended hospitalization are part of the damages.
• Causation. There must be a direct cause and effect between the patient's injury and the breach of duty. This is usually the most difficult element to prove at a malpractice trial. In the case of our example, it must be proved that had the call bell been within reach, the patient would not have been injured.

In addition to discussing the handout, develop case scenarios of your own that illustrate the four elements of negligence. You may also want to develop a mock court role-play scenario. Your legal department can be a big help when developing mock courts.

Legal tip: This article is intended as an introductory guide, not as legal advice. When developing legal tools, consult with your organization's legal and risk management department. Issues to address, in conjunction with your legal department, include advance directives, living wills, and hospital policy regarding employees witnessing patient wills.

References
Follin, S.A. (Ed.). (2004). Nurse's Legal Handbook (5th ed.). Philadelphia: Lippincott Williams & Wilkins.
Morales, K. (2009). "Elements of medical malpractice." Retrieved December 18, 2009, from www.nursetogether.com/tabid/102/itemid/1406/Elements-of-Medical-Malpractice.aspx.