Defining Medical Malpractice
Malpractice is a type of negligence: a failure to provide the proper standard of care that results in harm to the patient. Treatment errors are mistakes made during care delivery, such as administering the wrong medication or performing a procedure incorrectly.
Each state has its own rules governing medical malpractice. Those rules determine whether a claim for a nurse’s negligence is considered malpractice or not, and that depends on the services at issue, where they were performed, and other staff involved.
Actions and inactions that commonly lead to malpractice claims:
- Failure to monitor the patient and respond promptly to a change in vital signs
- Failure to update the chart with changes or accurately record the patient’s condition
- Failure to ensure medical equipment is working properly
- An error in treatment administration or routine care, such as taking blood pressure or drawing blood, that causes injury
There are cases where inaction is appropriate. For example, withholding digoxin when a patient’s pulse is below 60 beats per minute may be clinically correct. But if the nurse does not document the pulse rate and the reason the medication was held, they can be sued for negligence and cited for failure to administer without cause.
Common Claims Against Nurses
Nurses can be named in malpractice suits alongside other practitioners. A review of closed malpractice claims by CNA and Nurses Service Organization (NSO) found the top allegations against nurses were inadequate patient monitoring (45%), medication mistakes (18%), patient falls (14%), and pressure injuries (10%).
When inadequate monitoring was alleged, it resulted in patient death 49% of the time. Medication errors are serious: nearly 40% of malpractice lawsuits include a drug administration error.
Communication failures also drive claims. In one case, a family brought a wrongful death lawsuit against a nurse who failed to notify the physician when the color and odor of a patient’s emesis changed. The patient died shortly after.
In another case, an 80-year-old man fell in a nursing home, was transported to the emergency room confused and incontinent, and fell again in the ER, sustaining a right hip fracture requiring surgical repair. The patient had not been placed within direct sight of the nurses’ station. The case settled, with the nurse responsible for 45% of the total settlement.
What to Do if You Are Sued
Do
- Notify your nursing supervisor immediately so the hospital’s malpractice insurer can be informed. Failing to report promptly can result in denial of coverage.
- Get legal representation from an attorney who knows medical malpractice law in your state.
- Review all patient records and locate consent forms, incident reports, charts, and other relevant documentation.
- Preserve all additional evidence: emails, photos, videos, and notes related to the case.
- Identify a trusted colleague who can attest to your credibility and professional conduct.
- Present only the facts in any communication with opposing counsel or during depositions. Assumptions do not help your case.
- Learn the legal terminology and the plaintiff’s arguments. Work with the system rather than against it.
- Address your stress. Compartmentalize where you can, focus on supporting your defense, and engage in self-care: counseling, exercise, and a support network.
Do Not
- Speak with the patient, the patient’s family, or the plaintiff’s attorney about the case without your attorney present.
- Withhold information from your defense team. Gaps in disclosure raise suspicion.
- Ignore the lawsuit or try to manage it on your own. Malpractice law is complex; handling it without counsel puts you at serious risk.
- Post anything about the case on social media. Even deleted posts leave a digital record that opposing counsel can subpoena.
- Make statements that could be construed as admissions, including “I did nothing wrong,” “I know I’m 100% right,” or “I’m sorry.”
Frequently Asked Questions
Can a nurse be sued for malpractice? Yes. A nurse can be sued for malpractice or negligence when an action or inaction falls below the professional standard of care and harms a patient. It is not common, but the CNA and NSO claim data show nurses are named in a meaningful share of closed claims.
What are the most common malpractice claims against nurses? The CNA and NSO claim report found the leading allegations are inadequate patient monitoring (45%), medication errors (18%), patient falls (14%), and pressure injuries (10%). Inadequate monitoring is the most serious, leading to patient death in nearly half of those claims.
Can a nurse be sued for following a doctor's orders? In some states, yes. In 2022 the North Carolina Supreme Court overturned a 90-year-old precedent in Connette v. Charlotte Mecklenburg Hospital Authority, holding that a nurse can be liable for negligence even while working under a physician's supervision if the nurse breaches the professional standard of care.
What is the difference between malpractice and negligence? Negligence is a failure to provide the proper standard of care. Malpractice is professional negligence by a licensed provider, judged against what a reasonably careful nurse would have done in the same situation. State law decides how a given nurse's conduct is classified.
Does documentation protect a nurse from a lawsuit? Accurate, timely charting is one of the strongest defenses. Holding digoxin for a low pulse can be correct care, but if the pulse and the reason are not documented, the same decision can become grounds for a negligence claim.
Should a nurse carry malpractice insurance? Many nurses choose to. Employer coverage may not fully protect your individual license or pay for your own legal representation, which is why personal professional liability insurance is worth weighing against your role and setting.
What should I do first if I am named in a malpractice suit? Notify your nursing supervisor immediately so the insurer is informed, then get an attorney who knows medical malpractice law in your state. Do not discuss the case with the patient, the family, or opposing counsel without your attorney present, and never post about it online.