Negligence and Malpractice

The terms negligence and malpractice are frequently used interchangeably. However, there is a difference in the two terms.

Negligence is:

• A general term that denotes conduct lacking in due care;
• Carelessness; and
• A deviation from the standard of care that a reasonable person would use in a particular set of circumstances.

Anyone, including non-medical persons, can be liable for negligence.

Malpractice a more specific term that looks at a standard of care as well as the professional status of the caregiver. To be liable for malpractice, the person committing the wrong must be a professional.

The courts define malpractice as the failure of a professional person to act in accordance with the prevailing professional standards, or failure to foresee consequences that a professional person, having the necessary skills and education, should foresee.

The same types of acts may form the basis for negligence or malpractice.

• If performed by a non-professional person the result is negligence;
• If performed by a professional person the acts could be the basis for a malpractice lawsuit.

In order to prove negligence or malpractice, the following elements must be established:

• Duty owed the patient;
• Breach of duty owed the patient;
• Foreseeability;
• Causation;
• Injury; and
• Damages.

There are different levels of responsibility or liability for malpractice.

• An individual is accountable for acts of negligence personally committed;
• The manager or supervisor may be held liable for the acts of the nurse if there has not been appropriate delegation of duties or adequate supervision;
• An employer may be liable for the acts of its employees for failing to do the following:
  • hire staff who has the qualifications and skills to perform the necessary functions;
  • provide opportunities for the professional growth of the staff such as workshops and seminars;
  • provide adequate library services;
  • provide opportunities for exchange of ideas;
  • provide adequate and sufficient equipment and supplies and maintaining them; and
  • ensure that managers and supervisors carry out their duties competently.

References
Brent, Nancy J. (1997). Nurses and the Law. W.B. Saunders.

Feutz-Harter, Sheryl. (1993). Nursing and the Law. Professional Education Systems, Inc.

Wacker Guido, Ginny. (1988). Legal Issues in Nursing. Appleton and Lange.

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