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The Difference Between Negligence and Malpractice

Vol. 10 •Issue 5 • Page 26
Legal Update

The Difference Between Negligence and Malpractice

by Gerrie Schipske, NP, JD

Nurse practitioners frequently ask whether there is a difference between negligence and malpractice. As is the case with most legal questions, the answer is yes and no.

Negligence is a type of tort, a wrongful act against another person or his property. A simple definition tells us that negligence is the failure to do something that an ordinary and prudent person would do in a similar situation.

To prove that someone was negligent, you must prove four elements: 1) the other person had a duty (obligation) to you; 2) the duty was violated; 3) the person who violated the duty could reasonably expect that when the duty was violated, harm would result; and 4) the other person's negligence actually caused the harm. If any of these four elements were missing, a person would most likely not found to be negligent.

For example: a person driving a car fails to stop at a red light and hits another car in the intersection, seriously damaging the other car and injuring the driver. An ordinary person would know that he must stop his car at a red light. Drivers have a duty to other drivers and pedestrians to stop at red lights. It is certainly foreseeable that when you fail to stop at a red light, you might cause a car accident and injure someone. And, when you hit another car because you failed to stop at the red light, it was your negligence that caused harm to the other driver.

Now, change the situation slightly. You fail to stop at a red light. The owner of a nearby store sees you run the light from inside his store and has a heart attack. Would you be found negligent for his heart attack? Not likely. Your duty to stop at red lights doesn't extend to someone who watches the event. It is certainly not foreseeable that running a red light would cause a businessman to have a heart attack, nor did your failure to stop at the red light cause him harm (unless you hit his store or hit another car, which hit his store).

Malpractice is a type of negligence that only applies to professionals—people who are licensed. Instead of being held to the ordinary person standard, the professional is held to a higher standard—that of other professionals with the same education and training. An obstetric-gynecologic NP would be expected to act in the same manner as other obstetric-gynecologic NPs under the same circumstances. However, an ob-gyn NP would not be expected to act in the same manner as an ob-gyn physician.

A patient who alleges that a nurse practitioner committed malpractice must prove four elements: 1) the nurse practitioner had a duty to the patient; 2) the nurse practitioner violated that duty; 3) the NP should have known that harm would result; and 4) the patient was harmed as a direct result of the NP's negligence.

For example: A patient bumps his head at home, goes to the ED complaining of a headache, and is examined, treated and discharged by a nurse practitioner. The NP forgets to provide the patient with discharge instructions or appropriate teaching before sending the patient home. The patient goes home, begins to have blurred vision and nausea but does not know that he should return to the ED with these symptoms. Later that evening, his wife finds him unconscious and he is rushed to the ED, where providers discover that he has serious swelling of the brain and subsequent paralysis. Is the NP liable for malpractice?

When the patient entered the ED, the treating NP assumed a duty to provide treatment and care in the same manner as other ED nurse practitioners under similar circumstances. Part of that duty is to provide sufficient and appropriate discharge teaching. The ED nurse practitioner violated her duty to the patient by failing to provide the discharge instructions and it was foreseeable that a patient with a head injury might develop more serious complications after discharge and should be instructed to return to the ED when the symptoms occur. As a result of the nurse practitioner's failure to provide discharge instructions, the patient did not return to the ED when symptoms first appeared and suffered harm.

As in other instances of negligence, if the patient cannot prove each of the four elements, then the nurse practitioner may not be found liable for malpractice. To illustrate, let's change the facts of the ED case a little: A man meets an ED nurse practitioner at a party and mentions that a day ago he had hit his head at home and was "seeing things a little fuzzy and had an upset stomach." The NP responds: "Oh, I am sorry to hear that but I have to go now" and leaves the party. Shortly after her leaving, the man becomes unconscious and is rushed to the ED, where an exam finds brain swelling. He awakes and is paralyzed. Did this ED nurse practitioner commit malpractice for not telling the man to go to the ED immediately? No, because this NP did not have a "duty" to the man at the party. They had a brief social interaction, she was not providing him care, and she had not entered into a professional relationship with him. End of case. Remember, if one of the four elements is missing, there is no negligence or malpractice.

Gerrie Schipske is a nurse practitioner and attorney in Long Beach, Calif., who teaches law and public policy at California State University in Long Beach. Her column provides information about the law. Legal advice applies the law to an individual's specific circumstances. Consult your attorney for professional assurance that the information in this column, and your understanding of it, is appropriate to your particular situation.


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