Online Undergraduate Course

NURS 450 - RN to BSN Transition: Implications for Practice, Policy and the Profession

Module 6: Legal Considerations

Elements of Malpractice

We hear about nurses that are being prosecuted for negligent or criminal acts in the news. For example, these nurses have left the unit without coverage and face charges of abandonment or even situations where death has resulted due to a negligent act of the nurse. These actions are leading to lawsuits that can be civil and/or involve criminal suits for malpractice.

There are four essential characteristics/ steps related to negligence:

  1. Duty to care
  2. Breach of Duty to Care
  3. Proximate Cause
  4. Harm, injury or damages

Examples for each of the four essential characteristics include the following:

  1. Duty to care: Did a patient-provider relationship exist? Did the health care provider have a duty to provide care to the patient or be involved in the patient's care (that can include the chain of command--was the health care provider a supervisor of the nurse, patient’s physician, or employer of the nurse)?
  2. Breach of the duty to care: Did the health care provider breach his/her duty to care? A breach of duty must have occurred, which is defined as negligence (so you have negligence without a finding of malpractice if the first two criteria are satisfied). That means there was a failure to exercise the care that a reasonably prudent health care provider would have done under the same circumstances. This is the role of the expert witness. The actions of the health care provider is compared against the nurse practice act, professional standards of care and performance, health care organization policies and procedures, expert witnesses, accreditation and licensure standards, and professional literature (i.e., evidence-based practice).
  3. Proximate cause: Was the breach of duty the foreseeable cause or causes that is legally sufficient to result in liability--harm to the patient?
  4. Harm, injury, or damage: Did the patient incur harm, injury, or damages as a result of that breach of duty being of sufficient cause to result in it? Note harm, injury, or damage does not have to be physical. It can be emotional, as well. Consider people involved as research subjects where if personal information was divulged there could be mental, social financial and even spiritual harm as a result.

All four elements must exist to support a malpractice claim.

Now that you have read about the four essential characteristics/steps, watch the following video to determine if any of the criteria of negligence or malpractice are present in the scenario, Negligence and Malpractice (January 9, 2009) (3:30 minutes)

Two nurses are involved. Review what the four essential characteristics are that can lead to a full breach of duty.

  1. Duty to care. The situation required a duty toward the patients and both were harmed. Closely watching the video you can see the possibility with mixing up not only the medication vials but also the syringes as well. The duty of the nurses involved checking and rechecking to make sure they were drawing up the correct medication, dosage, and marked correctly to give to the patient.
  2. A breach of duty occurred and the nurses failed to exercise care/steps that a prudent healthcare provide would have done, given the same circumstances.
  3. Proximate cause. In this scenario, there were two patients that were in the care of the two nurses. Both nurses were working from the same med cart and interrupted at the same time, which was a distraction. Distractions are one of the main causes of medications errors experienced today. Just the fact they were interrupted increased the likelihood of an error and was of sufficient cause to have resulted in harm, injury, or damages to their patients.
  4. The one patient sustained harm, injury, or damages, and the other patient died

Both nurses failed to fulfill (breached) their duty to their patients. They were distracted and did not review what they were about to do and made sure they were providing the appropriate medication to the right patient. This breach of duty was the proximate cause for the harm and death the two patients experienced, respectively.

When applied to nursing, a breach of a duty occurs when a nurse does not do what a reasonable nurse would have done under the same, or similar, circumstances. This would mean that the nurse’s care fell below the acceptable standard of care and/or deviated from established policy. Take for example this example. Nurses practicing in emergency departments (ED) are expected to recognize, assess, and intervene when patients present as a victim of Intimate Partner Violence (IPV) (Nielson, 2018). Upon admission to the ED, the RN must screen a patient for IPV and when their assessment reveals physical and psychological indictors are present suggesting IPV, they must make a referral to the appropriate professional. A breach of duty means the RN did not perform the assessment and/or did not make the referral for a patient experiencing IPV. The standard of care is a legal concept which reflects how a nurse is expected to act professionally. It incorporates the expectation that nurses conduct themselves with the degree of care, skill and knowledge that reasonably competent nurses would exhibit in a similar situation.

End this section by listening or reading about a recent court case resulting from a medication error. A former nurse was found guilty in the death of 75-year-old patient ( (National Public Radio, 2022, March 25). What do you think? What did you hear? What practice change might you consider and why?

This website is maintained by the University of Maryland School of Nursing (UMSON) Office of Learning Technologies. The UMSON logo and all other contents of this website are the sole property of UMSON and may not be used for any purpose without prior written consent. Links to other websites do not constitute or imply an endorsement of those sites, their content, or their products and services. Please send comments, corrections, and link improvements to