Free Essay

Negligence, Gross Negligence or Malpractice

In: Other Topics

Submitted By Lesli790
Words 1320
Pages 6
Negligence, Gross Negligence, or Malpractice
Lesli Sherwin, RN
HCS/478 Health Law and Ethics
May 11th, 2015
Lynda White ADN, BS

Negligence, Gross Negligence, or Malpractice

Malpractice includes both negligence and gross negligence. Malpractice is a tort in which a person who claims a practice in some profession fails in their duty, lacks in their skill to the extent that it causes damage to their client or patient. Negligence and gross negligence are both forms of malpractice. Simple ordinary negligence is the lack of performing in a manner consistent with standards of practice including omissions in practice, and failure to provide care that any other reasonable prudent nurse would provide. The Elements that a plaintiff must prove to win their negligence claim include breach of duty, causation, and damages (Weiler, 1995). If they cannot prove there was a breach in all three of these things, then the plaintiff will lose the case. Gross Negligence, is negligence on a grand scale. It borders reckless behaviors and culpability. It is most simply explained in terms of degree of negligence, or the severity of the negligence is worse than simple or ordinary negligence. Gross negligence can be very subjective and is used in extreme cases that might have ended with manslaughter charges or something of the like. Could the event or act have been controlled by the practitioner? If the answer is yes, then it is probably neglect. If the act was purposeful and the practitioner understood the nature of their actions, conduct, and the ramifications, if they were reckless in their actions, and if the results were substantial then gross negligence would certainly be a consideration.
Documentation is monumental in cases involving negligence. Generally, whatever a nurse or staff writes is believed, and if it wasn’t written down it didn’t happen. As a rule who, what, how, when, why, in what condition they arrived and what condition they left our care should be documented with every patient encounter not only to defend us in court if needed, but also to communicate with other team members. In the case of a wrong leg amputation, your documentation may be the only thing that keeps you from losing the case. Gratefully, you might have documented, "I told the doctor left leg amputation and the doctor insists it is the right leg that is the necrotic leg, and I then called the house supervisor and the Director of Nursing". More than likely you wouldn't omit something that blatantly obvious, but in the Joseph Benson case mentioned in the neighborhood newspaper somebody must have omitted charting something or charted incorrectly. I have witnessed some real shenanigans going on in the surgery suite, and I think the question of having a camera present should cross everyone’s mind at some point in history. I mean we want to have the freedom to be human, but we are never going to know what is really going on behind closed doors until we begin recording it. Recording surgery happens today some doctors require it. Recording events in the hospital will not dispose of all charting. What if the order is not written to remove the ventilator such as at University Community Hospital? (Press, 1995). They exhumed the body and did an autopsy because there was not an order written to remove the ventilator. A video camera in the patient’s room would not have captured the doctor’s order. The importance of documentation cannot be overstated. Even, if you can prove in court that you had an order from the doctor. You have a reasonable enough excuse to not have written it into the chart and you get into zero trouble can you imagine the horror the patient’s family had to go through. It’s not worth it. Take the time to write it down.
I document each detail as I replay the video in my head as soon as possible, even during the patient visit if I can. To settle ethical and legal questions, you would document as in the example above that you notified the doctor, and the superiors involved with the case. I would attempt to stop the surgery and document this also. Yes, under the definitions of malpractice, negligence, and gross negligence I will have to agree with the newspaper article that amputation of the wrong leg would have to be considered negligence at the bare minimum. Not only that but the newspaper could not print, “Negligence Cited…”, without it being slanderous unless a court had come to that determination already, after all it does not state alleged anywhere in the article (The Neighborhood, 2014 ). There are many differences in cases where a wrong limb is amputated. In one case, a surgeon faced legal proceedings over an amputation of the left leg of a person in which both legs were diseased. The right leg was found to be inoperable during surgery, and the surgeon decided the best option for the patient was to amputate the left leg instead (Wrong leg cut off, 1982). The question is, did the doctor have the right to make that decision on paper? What level of negligence cutting off the wrong limb would be determined by the courts evaluation of who, what, how, when, where, why, and how much. Just because the result could be considered gross does not necessarily mean the actions that led to the results were gross. The newspaper article we have to work with does not provide enough information to make an inference other than a possible nursing shortage, union problems, or poor treatment of patients might be the cause. Any or all of the three will be considered either negligent or grossly negligent at some level.
Iatrogenic injury is not always compensated by the tort system nor is the medical staff always at fault. Tort reform promises to address some of the issues surrounding malpractice like protecting medical staff by placing, “award caps” and limiting the number of suits that can be filed (Brody & Hermer, 2011). The term standard of care determines whether medical care is negligent. The precise meaning of this term is always elusive and subjective (Brenner, Brenner, Awerbuch, & Horwitz, 2012). Since, "Medical liability lawsuits are civil actions designed to determine whether the [medical staff were] professionally negligent and whether the negligence caused harm to the patient..." to reach a verdict that is fair, and just it is important to understand and consider malpractice on a case by case basis. In the future, I find it plausible for our leading organization and legal teams to define further the criteria which appropriately satisfies the demands of a negligence trial. We may need to define further and clarify criteria optimal for determining and appropriately compensating for medical negligence.

References
Brenner, L. H., J.D., Brenner, A. T., M.P.H., Awerbuch, E. J., B.A., & Horwitz, D., M.D. (2012). Beyond the standard of care: A new model to judge medical negligence. Clinical Orthopaedics and Related Research, 470(5), 1357-64. doi:http://dx.doi.org/10.1007/s11999-012-2280-0
Brody, H., & Hermer, L. D. (2011). Professionally responsible malpractice reform. Journal of General Internal Medicine, 26(7), 806-9. doi:http://dx.doi.org/10.1007/s11606-011-1635-7
Press, A. (1995, Mar 18). Amputee reaches settlement the man whose wrong foot was cut off made an out-of-court deal with hospital. He'll get at-home care and try artificial legs. Orlando Sentinel Retrieved from http://search.proquest.com/docview/278601241?accountid=35812
The Neighborhood. (2008-2014 ). The Neighborhood 2.0 Ethical Dilemmas. Retrieved from The Neighborhood, HCS/478 Health Law and Ethics website.
Weiler, Kay, RN,M.A., J.D. (1995). Nursing malpractice. Journal of Gerontological Nursing, 21(11), 47. Retrieved from http://search.proquest.com/docview/1021720126?accountid=35812
Wrong leg cut off. (1982, Mar 17). The Globe and Mail Retrieved from http://search.proquest.com/docview/386728955?accountid=35812…...

Similar Documents

Premium Essay

Negligence

...NEGLIGENCE The elements of negligence are set forth in the case of Carr v. Union Pac. R.R. Co., ____S.W.3d____, 2011 WL 4489982 (Tex. App.-Houston [4th District] 2011 no pet.), as follows: Elements: 1. The existence of a legal duty; 2. Breach of a legal duty; 3. Proximate causation, and; 4. Damages. Factual Background: This suit arises out of a train derailment occurring across the road from the Carr’s residence. The derailment caused one railcar to derail and spill the contents, methyl isobutyl ketone, a colorless chemical used primarily as a solvent. The Carr’s noticed the smell of the chemical and immediately complained of headaches, congestion, and runny noses. At the Trial Court level the Carr’s failed to provide expert testimony as a link between the chemical spill and the physical symptoms the Carr’s had experienced . The Suit: The trial court granted a no-evidence summary judgment in favor of the Appellee, Union Pacific Rail Road. The Appellants, (the Carr’s, et.al), failed to meet two of the four elements of negligence. The Appellants appealed, arguing that expert testimony is not required. The District court disagreed, reasoning that summary judgment was “proper because the Plaintiffs have not presented any expert witness testimony on the issues of proximate cause and damages”. The Appellate Decision: The Trial court decision was affirmed. SUDDEN EMERGENCY The elements of the rule of non-liability known as sudden emergency are set......

Words: 983 - Pages: 4

Premium Essay

Negligence

...How to Avoid 4 Common Negligence Mistakes on Torts Essays Wednesday, December 5, 2012 California Bar Applicants, Welcome to the latest issue of our California Bar Exam newsletter. For those of you preparing for the February 2013 exam or looking ahead to the July 2013 California bar exam, we consider the following in this issue: • Important Upcoming California Bar Exam Dates • Recent BarReviewSolutions.com California Bar Exam News & Announcements • California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts Essays • California Bar Exam Newsletter Discount Important Upcoming California Bar Exam Dates ________________________________________ • Final Filing Deadline for February 2013 Exam: January 15, 2013 • California Bar Exam: February 26-28, 2013 Recent BarReviewSolutions.com California Bar Exam News & Announcements ________________________________________ A few spots remain for our February 2013 Ultimate program via Expedited Scheduling. Begin today... Just starting a February 2013 review or thinking ahead to the July 2013 California bar exam? Start your review off on the right track with our FREE Improve Your Bar Review Guide (2013 Edition). Obtain your copy today... For repeaters, July 2012 Assessments are now available. Sign-up today and learn from your prior exam mistakes as you prepare for an upcoming exam... California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts......

Words: 1105 - Pages: 5

Premium Essay

Negligence

...It is human nature to make mistakes; however, mistakes that cause harm to someone else could be considered negligence. In the case with Mr. Benson in the Neighborhood Newspaper article, a mistake was made that was irreversible. He went into the hospital to have his leg amputated, and the doctor amputated the wrong leg. The question is was the doctor negligent in his practice? Is the amputation of the wrong leg considered to be malpractice on the doctor’s part? This paper will differentiate between negligence, gross negligence, and malpractice. After differentiating between these terms, it will be determined if the doctor operating on Mr. Benson was considered to be negligent, gross negligent or was this mistake malpractice. To determine if the doctor who operated on Mr. Benson was negligent, the term negligent has to be defined. According to the Journal of Legal Nurse Consulting (2007), negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. In Mr. Benson’s case, the doctor would be considered to be negligent. The surgeon did not act in the same way another surgeon, in the same practice would have acted. For some reason, not all the measures were taken to......

Words: 332 - Pages: 2

Premium Essay

Negligence

...What is negligence? Negligence is the breach of a legal duty of care which causes loss or injury to the person to whom the duty is owned. There are three elements of an actionable negligence: 1. duty of care 2. breach of duty 3. damages resulting from that breach 1) Duty of care • Relational Proximity (neighbour = someone affected by your act) • Forseeability (any considerations that ought to reduce the scope of duty of care) • Whether is all circumstances it is fair, just and reasonable to impose a duty of care. Duty of Care? 1. Was the defendant careless/negligent? 2. Did he act like a reasonable man? 3. What did he omit to do? • Where D should have interceded for P protection e.g. motorist's duty to control passengers so that they do not cause injury to other road users. • Where D omitted to observe the rules of the road 4. Does a duty of care exist? • We have to ask ourselves is a duty of care owed to the person who we can reasonably foresee will be injured by our acts or omissions. • Duty of Care not only applies to acts and omissions but also to words/statements • A duty could arise that due to a careless statement it leads to economic loss. • e.g a special relationship of trust and advice in a professional capacity • Plantiff (Prosecutor....claim damages) • Defendant (person who caused the damage or......

Words: 793 - Pages: 4

Premium Essay

Negligence

... Examples of Contributory and Comparative Negligence Contributory Negligence Janet Klein's car collides with Bill Hutchinson’s car. Janet sues Bill, claiming injuries caused by Bill’s negligence. Bill claims that Janet’s own negligence contributed to causing the accident. Contributory negligence would completely bar Janet’s claim, even though Bill is partly at fault, too. Comparative Negligence Dr. Turner malpractices, but the patient makes the situation worse by failing to take the prescribed medication. The jury decides the harm was caused 75% by the doctor and 25% by the patient. In such a case, the doctor would pay the patient 75% of her damages. Under comparative negligence, the party at fault pays the percentage damages he or she causes. Modified Comparative Negligence Some states create additional requirements if the plaintiff is partly at fault. These states require that the defendant’s fault meet a minimum threshold before the defendant has to pay anything. A common threshold might be requiring that defendant’s fault be greater than plaintiff’s. Example In the Dr. Turner case we just looked at, the doctor's negligence was greater than the patient’s negligence. The threshold is met and Dr. Turner pays 75% of damages. However, if the jury found the doctor 40% at fault and the patient 60% at fault, Dr. Turner would pay nothing because the threshold was not met. An Example of Assumption of Risk in a Medical Context Dr. Miller explains to Steve Cassidy the......

Words: 1081 - Pages: 5

Premium Essay

Negligence Paper

...Negligence Paper HCS478 September 22, 2014 Amputation Mishap The article of the "Amputation Mishap," located in (Pearson Health Science, 2014) Neighborhood News, season 3 episode 7 is about a 62-year-old gentleman who went into the hospital to have his right leg amputated, but instead the wrong leg was amputated. He received a below the knee amputation of his left leg. The reason that he was having his right leg amputated was because he is diabetic and has poor circulation in his right leg. The surgery did not correct his problem but instead created bigger problems, because he still has the leg with the poor circulation and will most likely still need his right leg amputated. This was a huge mistake that the hospital staff has made. The incident of the wrong leg being amputated is a result gross negligence. This paper will be discussing the difference between negligence, gross negligence, and malpractice. It will also cover my opinion about the situation, deciding whether it was a mishap or negligence, the importance of documentation, the ethical principles that serve as a guide in the nursing practice in this situation, and how documentation should be done to satisfy ethical and legal requirements. For negligence or malpractice to be present there is a couple of things that needs to be proven such as a duty owed to the patient, breach of duty to the patient, foreseeability, causation, injury and damage. In order for there to be negligence, it has to be an......

Words: 1261 - Pages: 6

Premium Essay

Negligence

...5 a - The independence has not been impaired b - As long as Herb does not get involved in the transactions between the two clients, the Code of ethics is not violated. 4-20 Constructive fraud - Fraud is Intentional deception, such as the misrepresentation, concealment, or nondisclosure of a material fact, that results in injury to another. I do not believe City would win their case against fraud, as Winston believed the amounts embezzled were not of a material amount. Gross Negligence - Gross negligence is failure to use even slight care in the circumstance. I believe City would win their case against negligence. Winston knew about the $500 embezzlement, had some evidence about other embezzlements, and failed to follow the audit program as well as informing management about his findings. Winston is guilty of gross negligence....

Words: 293 - Pages: 2

Free Essay

Negligence

...| | ASSIGNMENT COVER SHEET(adapted for LAW1100 major essay submission purposes) | UNITCode: LAW1100TITLE: Legal Framework I | NAME OF STUDENT (PRINT CLEARLY) fisher shane FAMILY NAME FIRST NAME | STUDENT ID. NO.10104032 | NAME OF LECTURER (PRINT CLEARLY)brad moore | DUE DATE18/4/2011 | Topic of assignmentDuty of Care IN THE LAW OF NEGLIGENCE | Group or tutorial (if applicable)      | Courselegal framework 1100 | Campusmt lawley | I certify that the attached assignment is my own work and that any material drawn from other sources has been acknowledged. Copyright in assignments remains my property. I grant permission to the University to make copies of assignments for assessment, review and/or record keeping purposes. I note that the University reserves the right to check my assignment for plagiarism. Should the reproduction of all or part of an assignment be required by the University for any purpose other than those mentioned above, appropriate authorisation will be sought from me on the relevant form. | OR, if submitting this paper electronically as per instructions for the unit, place an ‘X’ in the box below to indicate that you have read this form and filled it in completely and that you certify as above. Please include this page in/with your submission. Any electronic responses to this submission will be sent to your ECU email address (or, where relevant, the digital dropbox for the Blackboard site for LAW1100).Agreement X ...

Words: 3381 - Pages: 14

Free Essay

Negligence

...Nursing Negligence When one visits the doctor, the intended purpose is to regain health. Unfortunately, it’s not always like that. Cases of medical malpractice occur every day. Health is fragile, there are numerous of simple mistakes that can have a lifelong impact which can destroy innocent lives. The term malpractice in the healthcare field originally consisted only of negligence words from a physician. In the past, there was a distinct division between a nurse and a physician. Nurses use to work with a defined framework. Instead of treating symptoms or diagnosing patients, nurses would simply wait for a physicians order then implement it. As time passed, the role of a nurse has changed. Some nurses in hospitals and clinics have assumed responsibilities of a physician such as the actual examination and treatment of a patient. Nurses take on these roles often without any supervision of a physician which causes more and more nurses to be named as defendants in malpractice lawsuits (Nursing Negligence, 2006, October 17, p.1). When nurses exceed their scope of practice, they violate their nursing license (Fremgen, 2002, p. 137). Many individuals immediately associate medical negligence with a physician but, nurse negligence is far more common than people think. Nurses are often responsible for filling out information on a patients chart, administering a patient’s medicine, taking vital signs and recording them accurately. Clearly, there are many duties that a nurse must...

Words: 1087 - Pages: 5

Free Essay

Negligence

...Negligence Latasha Adegboruwa University of Phoenix Health Law and ethics HCS/478 Lynda White April 18, 2011 Negligence “Registered nurses have more professional accountability than at any other time in the history of nursing. As a result, nurses must confront the fact that they now owe a higher duty of care to their patients, and by extension, are more exposed to civil claims for negligence than ever before”(Weld and Bibb, 2009, p 2). “Negligence is described as failure to use such care as a reasonable prudent and careful person would use under similar circumstances” (Weld and Bibb, 2009, p3). Common examples of negligence are malnutrition, inadequate hydration, physical injury was done, and it was the result of the nurse’s care or lack thereof. There are five main elements in a nursing negligence case and all five elements have to be proven for a case to be valid 1. The nurse had a duty to perform. 2. The appropriate care was not apparent in the situation. 3. There was a breach of violation of care 3. There was injury proven to result from the nurse’s negligence and 5. There is proof that damages occurred as a direct result of the situation. (Avery, 2009). Gross negligence is a more serious form of negligence and goes further than carelessness. While regular negligence is seen as a person falling below the standard of care, gross negligence is seen as complete failure to show care and in fact implies recklessness or a willful disregard for the......

Words: 1167 - Pages: 5

Premium Essay

Negligence

...Negligence Telisha Winbush HCS/478 6/7/2015 Barbara Scheibe Negligence In the simulation, the Neighborhood 2.0, season 3 episode 7, Mr. Joseph Benson has had the wrong leg amputated in surgery and wakes up in terror when he discovers what has happened. The newspaper claims that Mr. Benson was affected by negligence. However, that is only partially accurate; there is a distinct difference between negligence and malpractice and I believe that this is a case of malpractice. Nurses need to act on ethical and legal principles to protect themselves from legal implications. In keeping with these corrective actions, nurses also need to make sure that their documentation is accurate. Negligence and Malpractice Negligence as defined by Wacker-Guido, is “a general term that denotes conduct lacking in due care” (2010) and it is defined by the Oxford English Dictionary as the “Lack of attention to what ought to be done; failure to take proper or necessary care of a thing or person; lack of necessary or reasonable care in doing something; carelessness” (“Negligence,” 2015). The Oxford English Dictionary defines malpractice as, “treatment given by a member of the medical profession that departs from a generally accepted standard of practice and results in injury to the patient, through negligence, ignorance, lack of skill, or malicious intent” (“Malpractice,” 2015). According to Wacker- Guido (2010), the definition of malpractice is “any......

Words: 1340 - Pages: 6

Premium Essay

Negligence

...care field, the term malpractice originally encompassed only the negligent wrongs of a physician. In the past, a distinct division existed between a nurse and a physician. Rather than diagnose patients, treat symptoms, or prescribe medication, it was sufficient for the nurse to wait for and then simply implement a physician’s order. In years past it was virtually unprecedented for a nurse to criticize a physician’s order. The role of the nurse, however, has changed. Today, nurses commonly assume functions previously performed only by the physician. In hospitals and clinics across the country, nurses have assumed the responsibilities such as the actual examination, diagnosis, and treatment of a patient, oftentimes without any direct supervision by a physician. Medical malpractice is generally defined as negligence on the part of a physician, nurse, EMT, hospital or other health care professionals. Negligence is at part with failure to perform medical obligations under normal standard of care. The nurses are also involved when patients get injured either physically and/or mentally as results of medical malpractice. Due to current shortage of nursing professionals, nurses on the job are inevitably overloaded with work and duties. Nurses are not getting enough rest that they need to stay alert at all times due to longer shifts. Inattentiveness often leads to medical mistakes that cause serious harm to patients. Another root of the nurse malpractice is under......

Words: 389 - Pages: 2

Premium Essay

Hospital Negligence

...Hospital Negligence LaTonya Jefferson HCS 478 September 26, 2011 Negligence is defined as conduct lacking in due care and is equated with carelessness (Guido, 2010). An act can be considered negligent if it is a deviation from the standard of care that a reasonable person would do or what they would not do. At the Neighborhood Hospital, negligence has been cited due to the wrong limb being amputated on a patient. We will look at negligence vs. malpractice and whether the circumstances presented indicates negligence, as well as whether or not there is a case to pursue malpractice. As stated above, negligence is an injury that is caused by carelessness, but the injury is not intended. Gross negligence is caused when someone deliberately acts in a way in which they know or should know will cause harm (LaMance, 2011). For healthcare professionals, any act of negligence can be a basis for a malpractice lawsuit. According to Guido (2010), to be liable for malpractice, the person committing the wrong must be a professional whose misconduct, lack of skill, or fidelity in duties results in injury, suffering, or death due to carelessness or lack of foresight. In a court of law, in order to prove negligence or malpractice, the plaintiff (the injured party) must be able to prove certain elements to establish liability (Guido, 2010). These include duty owed the patient, breach of duty owed the patient, forseeability, causation, injury, and damages. Duty of care......

Words: 1225 - Pages: 5

Free Essay

Negligence

...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......

Words: 1283 - Pages: 6

Premium Essay

Negligence

...Negligence In today’s busy health care industry nurses and doctors are pushed to the limit. We are asked to make life and death decisions in mere seconds. Society is also more aware of what they should expect from health care providers. This awareness demands health care providers not only provide excellent care, but also document the care they provide to ensure they are not subject to accusations of negligence, or gross negligence that can lead to malpractice suits. This paper will differentiate between negligence, gross negligence, and malpractice. In order to further examine these issues an article titled “Amputation mishap, negligence cited” from The Neighborhood News in which “Earlier this week, 62-year-old Joseph Benson underwent an amputation of his leg just below the left knee and only suffered one complication- the wrong leg was amputated” (Lowell, n.d.) will be discussed. This will include the determination of whether or not this example is a case for negligence, gross negligence, or malpractice. This discussion will also include the importance of documentation and its correlation to potential negligence, the ethical principles I would use to guide my practice in this situation, and how I would document to satisfy ethical and legal requirements. Most people do not understand the distinction between negligence, gross negligence, and malpractice. According to Guido (2010), a plaintiff must prove that there was a duty to the patient, that a breach of the duty owed......

Words: 1650 - Pages: 7