It is normal for humans to make mistakes: however, some mistakes can cause harm or death to someone and could be considered negligence. A case of possible negligence has been identified at the Neighborhood Hospital. A patient went in for a leg amputation and the wrong leg was amputated. Unfortunately, this error is not reversible for the patient. In this situation the physician and staff involved during the surgery would be considered negligent. There are specific processes and policies that each facility takes to ensure mistakes like this do not happen such as: taking a time out in the operating room prior to the surgery and marking the site that they will be operating on. All staff in the operating room must participate in the time out. During the time out the patient is identified as the correct patient, the correct surgery will be performed, surgical consent is signed, and the site is marked that they will be operating on. It is obvious in this case that the appropriate steps were not taken by the physician or surgical staff. Was the physician, staff or both responsible for the error? Could this become a malpractice case? With our scenario it is difficult to determine whether this would be considered negligence, gross negligence, or malpractice. We have very little information and facts about the case therefore it is hard to determine which one would apply to this case. In the ever-changing health care world it is critical for nurses to be familiar with terms such as negligence, gross negligence, and malpractice. There have been cases similar over the years. Facilities have modified their policies and procedures to prevent such incidents happening again. The legal system becomes involved when patient care is compromised or poor medical outcomes. State, federal, and licensing accreditation agencies all have standards of practice. First we must understand the difference between negligence, gross negligence, and malpractice. This paper will provide definition of negligence, gross negligence, and malpractice. The goal is for the reader to have a better understanding of negligence, gross negligence, and malpractice.
“The definition of professional negligence most familiar to healthcare providers is the definition of ordinary negligence. As commonly phrased, ordinary negligence is the failure to exercise the degree of care that a careful or prudent practitioner would have exercised under like circumstances. Such definitions involve the exposure of a patient to an unreasonable risk of harm, as judged by a jury (or judge) after expert testimony has been given to establish the ever-changing standard of care. Negligence can occur due to something we do or do not do if the act we fail to do was necessary to prevent an injury” (Medscape Nurses News, 2006). Some common examples of negligence are dehydration, physical injury, and malnutrition.
“Gross negligence is a far more severe failure then negligence. It is generally defined as a failure to exercise any care. It can also be looked at another way: a person commits gross negligence when they deliberately act in a way which they know, or should know, is very likely to cause harm” (Legal Match, 2011). An example would be if a person is driving too fast and causes an accident, they have probably committed negligence. If he or she is driving too fast, and under the influence of illegal drugs, then causes the same type of accident, he or she probably has committed gross negligence. To prove gross negligence the person has to show the person responsible acted in a way that was unsafe and caused harm to the patient.
“Malpractice lawsuits arise when a professional individual, hospital or organization makes a serious error in providing service and as a result, a client or patient suffers physical or financial harm. Most malpractice claims or lawsuits are against licensed professionals like health care providers or attorneys and the companies or organizations they work for. To make a malpractice claim, you must generally show that the action causing the error falls below a certain level of care and that you suffered an injury because of that failure” (Free Advice, 2011). Physicians that are specialists or surgeons are typically held to higher standards of care than general practitioners and are more likely to be involved in a malpractice case. With health care professionals an act of negligence can be the basis or grounds for a malpractice lawsuit. “There are four key elements to negligence: breach of duty, causation, duty of care, and damages. All four elements must be present in order to be considered a malpractice or negligent case” (Cornock, 2011, p. 21).
Standards of care were developed by federal and state agencies and licensing accreditation boards such as the Joint Commission. These standards help define the minimal requirements of knowledge and skill that help define the highest quality of patient care and safety. Facilities and providers are to follow standards of care to prevent errors, mistakes, and death.
By documenting thoroughly on all patients you may be able to avoid a lawsuit or be prepared to defend yourself if needed in court. Documentation begins with the first time you see the patient until the patient is discharged. “Base your documentation on your objective assessment findings using your senses of sight, touch, hearing, and smell. Document at the same time as the intervention if you can, or as close to it as possible. Beware of the shortcomings in documentation that could allow an attorney to raise questions about the quality of care you gave the plaintiff” (Austin, 2006, p. 56).
We all could use improvement with documentation. The following are some of the most common documentation mistakes nurses and health care professionals make: Illegible handwriting, delays in completing the patient record, someone else completes the documentation that has not delivered the care documented, no signature, incorrect dates and times, inaccuracies in patient identification information such as wrong date of birth or wrong name, unapproved abbreviations, subjective and not observations documented, and opinion mixed with actual facts. “Making and keeping records is an essential part of care and you must keep records for everyone you treat or who asks for your advice or services. You must complete all records promptly. If you are using paper-based records, they must be clearly written and easy to read, and you should write, sign and date all entries” (Pirie, 2011, p. 26).
Negligence, gross negligence, and malpractice can be worrisome for nurses and other health care professionals. Legal actions can be initiated years after patient care was provided. It is very likely you will not remember the situation in question until you review the documentation thoroughly. In our case scenario negligence and malpractice have occurred because the patient lost the wrong limb and the physician and surgical staff were at fault for not following the facilities policy and procedure for time out prior to any invasive procedure. Nurses and health care professionals should follow approved standards of care when caring for patients to provide the highest quality of care and safety for all patients. This mistake could have been avoided if all of the staff had followed standards of care, policies, and procedures.
References
Austin, S. (2006, January). Ladies & gentlemen of the jury, I present... the nursing documentation. Nursing2006, 36(1), 56 - 64.
Pirie, S. (2011). Documentation and record keeping. Journal Of Perioperative Practice,
21(1), 22-27.
Cornock, M. (2011, February). A legal commentary on negligence. Pediatric of Nursing, 23 (1), 21 – 22.
Free Advice. (2011). Retrieved from http://law.freeadvice.com/malpractice_law/hospital_malpractice/malpractice- definition.htm. Legal Match. (2011). Retrieved from http://www.legalmatch.com/law- library/article/gross-negligence.html.
Medscape Nurses News. (2006). Retrieved from
http://www.medscape.com/viewarticle/542575_3.