Table of Contents
Part 1
The Informed Consent
Sharpe (1999) defines informed consent from a medical perspective as obtaining permission freely and willingly from a patient and in a mutual agreement before rendering health care services. The resulting mutual consent, therefore, enables a practitioner to provide services, for example, surgery or treatment for a patient. Similarly, Pandit and Pandit (2009) attribute the duty of a practitioner first obtaining prior consent before rendering their services to the patients, in this case, diagnosis, treatment, research purpose or even the issue of disclosing medical records. Accordingly, the authors identify five ways in which consent may be given including; express consent, implied consent, tacit consent, surrogate consent, advance and proxy consent (Pandit & Pandit, 2009).
Despite the existence of numerous interpretation of consent in medicine, Adams (2016) elucidates the relevance of the distinctions which are well not understood by healthcare practitioners. In addition to informed consent, express consent and implied consent are other major types of consents utilised in a healthcare context. Whereas express consent is undertaken either orally or through writing with the patient agreeing to certain medical procedure or treatment, implied consent may be elicited from a patient’s conduct or desire (Adams, 2016; Pandit & Pandit, 2009).
Nevertheless, Pandit and Pandit (2009) discuss the importance of obtaining informed consent as an essential requirement before rendering their services without valid decision making from the patient’s side. They give an example of a case of Samira Kohli vs. Dr Prabha Manchanda and Ors. I (2008) CPJ 56 (SC) where consent given by the mother of the patient was not valid and real consent. The consequences incurred included the respondent being denied the fee charged for the surgery as a charge for unauthorised surgery. Therefore, it is important for healthcare professionals to make a critical decision regarding with consent to utilise in their various cases.
Elements of Negligence
Sharpe (1999) describes a tort of negligence as “the results when an individual fails to fulfil a required duty of care and that failure results in an injury to another individual.” Moreover, Pandit and Pandit (2009) point out the aspect of negligence per se through the case of Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322 where the Supreme Court gave a ruling of a negligent person in the context of an individual “who does not have knowledge of a particular system of medicine but practices in that system is a quack.”
According to Croke (2006), before a nurse becomes accountable in a malpractice action, there is the need for the law to establish and prove the existence of certain elements, namely; duty, breach of duty, foreseeability, causation, injury, and damages. In the case where one element is missing then the nurse is acquitted of the malpractice action (Croke, 2006; Pozgar, 2012). The description of these four elements is as follows: duty to care involves two aspects where the duty owed to the patient. Moreover, this is fostered through a relationship with a nurse-patient relationship ascertained before a lawsuit takes place. The second aspect holds the nurses accountable for the standard of care when a patient was in their care. Croke (2006) identifies numerous sources that are embraced to ascertain standards of care, for example, State Nurse Practice Act (NPA) and the American Nurses Association (ANA).
In the case of breach of duty, Pozgar (2012) provides insights on finding any deviation from the recognized standard care. In an example, Croke (2006) points out the failure of a nurse to give an ordered insulin dosage to a patient who subsequently lapses into a diabetic coma. Injury entails a case where damages are actually established, and lastly, causation is attributed to evidence of a nurse deviation from the standard of care which ultimately results in the injuries suffered by a patient. In this regard, the injury sustained by the patient in the event of receiving care must be foreseeable.
Strategies to Prevent Patient Injury and Litigation
According to Fabre (2005), and Raveesh, Nayak, and Kumbar (2016) nurses work in a complex environment and in their practice, they make decisions that sometimes produces unexpected results. In this regard, nurses are susceptible to risks, for example, wrong medication, inadequate patient follow-up, and diagnostic errors which may attract litigation. Therefore, Virshup, Oppenberg, and Coleman (1999) elaborate on risk management and its implication in helping arrest and resolve some of the nursing practices that are likely to cause indictment. One of the most important strategies that can help prevent patient injury is ensuring that nurses receive informed consent from their respective patients and that the latter are made aware of the implications of treatment or the procedure they are to undertake (Raveesh et al., 2016). In addition to informed consent, Fabre (2005) asserts that communication between practitioners and subsequent follow-up on patients is not only vital but may eliminate any risks or injury from occurring. Furthermore, medical liability may negatively impact nurses in the practice particularly those who are not equipped with current training in their speciality, thus, there is a need for the embrace of current standards of practice (Kumar, Gokhale, Jain & Mathur, 2013).
Impacts of Regulation on Patient Care and Injury Prevention Strategies
In the course of rendering their professional service, nurses are guided by professional codes that outline their roles and responsibilities. Nevertheless, White and Truax (2007) establish the relevance of the regulatory environment that is applicable to clinical practice. Accordingly, the author identifies civil law, criminal law, employment law, and professional law as four crucial areas that regulate the practice. Therefore, it is imperative to note that the regulatory environment works to ensure patients safety and in the case of nursing malpractice relevant laws either federal or state laws and regulations may be adopted to enforce liability (Sharpe, 1999). For example, the civil law establishes professional negligence through ascertaining the existence of the four elements of negligence (Croke, 2006). Therefore, the regulatory environment ensures the safety of patients and subsequent quality care.
Types of general and professional liability
Accidents often happen differently and elicited by diverse situations. In the case of a general liability, the law of torts is attributed to the negligence that is caused to a third party resulting to injuries, physical damage, or any other implications arising from a business operation (Carroll & American Society for Healthcare Risk Management. 2006; Kavaler, & Spiegel, 2003). For example, in an event where an individual slips over a mop left behind unknowingly by a janitor and suffers devastating injuries can be described as a general liability. In this case, the company or organisation the janitor works for and the janitor are likely to be sued for negligence.
On the other hand, a lawsuit can be filed against a nurse on the grounds of professional negligence where a patient suffers injuries or even succumbs to those injuries (Sharpe, 1999). The examination of this case and ascertaining the existence of the elements of liability, a nurse and the employer can be acquitted for negligence as emphasised by the American Nurses Association (2010), and Sanbar and the American College of Legal Medicine (2007). For example, a nurse giving wrong medication or procedure to a patient.
Part 2
The following are the elements identified in the cases presented by Croke (2006).
The duty to provide care
In the first case, despite the fact that Nurse Lunsford cited lack of nurse-patient relationship, she was redirected with professional code and law that through her Texas Registered Nurse licensure a relationship had developed automatically. In the second case, whereas patient-nurse relationship had been created, the nurse had failed to document the concern of the patient on which hand was to be operated.
When and how the breach of duty occurred
In the first case, the breach of duty occurred when the Nurse Lunsford failed to assess and implement nursing actions as she did not assess Mr Floyd’s medical status nor inform her seniors of his critical condition. For the second case, the hospital nurse failed to inform the physician of the patient’s concern.
The extent of the injury.
When the nurse failed to assess the patient despite having some knowledge on the condition in the first case, it led to the death of the patient through cardiac arrest. In the second case, the extent of the injury was that the patient was operated on the wrong hand.
The damages as a result of the injury.
The damages in the first case had the nurse suspended from the practice for one year whereas in the second case, the Supreme Court reversed the appealed judgement with costs with the reinstatement of the complaint against the defendants.
Negligent care
In both cases, the nurses failed to provide the patients with the care they deserved, for example, in the first case, the nurse failed to assess the patient’s condition despite having some knowledge regarding its implication. In the second case, negligence is cited when the nurse fails to report the patient’s concerns on the hand that needs surgery.
Impacts of Regulations on Patient Care and Injury Prevention Strategies
According to evidence posed in the article, nurses are guided by professional and civil laws in their practice. Whereas the professional code of conducts directs them in their practice, the civil law takes charge of the rising professional negligence coupled with the legal indictment. In the two cases, the nurses failed in terms of standards of care which resulted in litigations and penalties from the judgement (Croke, 2006).
How the incidents would have been prevented
In the first case, if the nurse had communicated the criticality of the patient’s condition to the physician or rather if she had implemented a nursing intervention and stabilize the patient, she would have saved his life. For my perspective, I would have attended to the patient first and after stabilization, I would have communicated and explained the situation to my seniors and the course of action I had embraced.
In the second case, if the nurse had communicated the concerns to the physician, the patient would have been taken through another thorough diagnosis before taking the patient to the surgery. In my perspective, I would have noted the conflicting information between the diagnostic materials and the issue raised by the patient. I would have then consulted with my seniors first before taking another step.
- Adams, E. R. K. (2016). Virginia Medical Law, 4th edition. Lulu Publishing Services.
- American Nurses Association. (2010). Nursing: Scope and standards of practice, 2nd ed.). Silver Spring, MD: Author.
- Carroll, R., & American Society for Healthcare Risk Management. (Eds.). (2006). Risk management handbook for health care organizations (4th ed.). San Francisco, CA: Jossey-Bass.
- Croke, E. M. (2006). Nursing Malpractice: Determining Liability Elements for Negligent Acts. Journal of Legal Nurse Consulting, 17(3), 3-24.
- Fabre, J. (2005). Smart nursing: How to create a positive work environment that empowers and retains. New York: Springer Pub.
- Kavaler, F., & Spiegel, A. D. (2003). Risk management in health care institutions: A strategic approach. Sudbury, Mass: Jones and Bartlett Publishers.
- Kumar, H., Gokhale, Jain, K., & Mathur, D. R. (2013). Legal Awareness and Responsibilities of Nursing Staff in Administration of Patient Care in a Trust Hospital. Journal of Clinical & Diagnostic Research, 7(12), 2814. doi:10.7860/JCDR/2013/7737.3886
- Pandit, M., & Pandit, S. (2009). Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective. Indian Journal of Urology, 25(3), 372-378.
- Pozgar, G. D. (2012). Legal aspects of health care administration. Sudbury, Mass: Jones & Bartlett Learning.
- Raveesh, B., Nayak, R., & Kumbar, S. (2016). Preventing medico-legal issues in clinical practice. Annals of Indian Academy of Neurology, 19(5), 15-20.
- Sanbar, S. S., & American College of Legal Medicine. (2007). Legal medicine. Philadelphia, PA: Mosby/Elsevier.
- Sharpe, C. C. (1999). Nursing malpractice: Liability and risk management. Westport, Conn.: Auburn House.
- Virshup, B. B., Oppenberg, A. A., & Coleman, M. M. (1999). Case Study: Strategic Risk Management: Reducing Malpractice Claims through More Effective Patient-Doctor Communication. American Journal of Medical Quality, 14 (4), 153-159.
- White, B. S., & Truax, D. (2007). The nurse practitioner in long-term care: Guidelines for clinical practice. Sudbury, Mass.: Jones and Bartlett.