The Elements of Nursing Malpractice


The Elements of Nursing Malpractice

Protect yourself with knowledge and compliance

By Angela Hermosillo, RN, JD
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While the economic downturn has brought a cold front to most industries, it seems to be fueling the fire of litigation. A recent study from the international law firm Fulbright & Jaworski concluded that 52 percent of the health care providers surveyed expect to face six or more lawsuits in the coming year.

The first step in protecting yourself is to understand what a patient would be required to establish in a suit for malpractice. To be successful, a plaintiff must prove that: 1) a duty was owed; 2) the duty was breached; 3) injury was caused; and 4) damage resulted.  

A duty exists when a nurse becomes directly or indirectly responsible for the patient’s care. Nurses are judged against a specific standard of nursing care. That standard may be derived from many sources, including facility policies and procedures, nurse practice acts, state statutes and administrative code provisions, and guidelines and standards promulgated and promoted by state and national nursing organizations.

Once the standard has been defined, the plaintiff is required to prove that the nurse deviated from it. This includes a fact-intensive examination of the nurse’s actions or inactions. Through the introduction of evidence and expert testimony, the plaintiff must prove that the nurse failed to exercise the degree of care that a reasonable, prudent nurse would have exercised in the same situation.  

Next, the plaintiff will be required to prove that he or she was injured as a result of the deviation. The patient must prove that the injury would not have occurred if not for the nurse’s care.

Finally, the plaintiff must establish that his or her injury can be reduced to monetary damages. This can include both compensatory damages, intended to cover economic loss resulting from physical and psychological injury, as well as punitive damages intended to punish the defendant and deter others from committing similar misconduct.

A basic understanding of the elements of malpractice should encourage you to take the second step in protecting yourself: becoming knowledgeable and maintaining compliance with the standard against which you would be judged. You can do this through regular review of your facility’s policies and procedures, the applicable nurse practice act, statues and/or administrative code provisions and industry publications.     

Angela Hermosillo, RN, JD, is a nurse-attorney who works as a consultant in the areas of health care, insurance and employment law. She obtained her J.D. from the University of Idaho and her nursing degree from Ricks College. Have a question? Email them to

Nothing in this article is or should be construed as the giving of legal advice or as forming an attorney-client relationship. If legal advice is required, the reader should seek out competent legal counsel from an attorney licensed in the appropriate jurisdiction. 

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