Negligence: Tort and Position Statement

Topics: Tort, Negligence, Law Pages: 6 (1873 words) Published: June 12, 2012
Negligence Paper

Negligence Paper
This paper will discuss the difference between negligence, gross negligence, and malpractice. Based on this information, the author will provide a position statement along with a rational for his decision. This position statement will indicate whether the case presented in the Neighborhood’s newspaper article, entitled “Amputation Mishap; Negligence”, presents a case of negligence, gross negligence, or malpractice. The importance of documentation and its correlation to potential negligence will also be presented. The ethical principles that would guide my practice if I were the nurse in the news article’s situation will be discussed. Examples of how the article case would be documented to satisfy the ethical and legal requirements will also be provided. Negligence

According to Guido (2010), negligence is defined as “conduct lacking in due care” (p. 92). An act is usually considered to be negligent when it is performed by a non- professional person (Guido, 2010). There are six elements which must exist in order for a specific act to be considered negligent. These elements are: duty owed to the patient; breach of the duty owed to the patient; foreseeability; causation; injury; and damages (Guido, 2010). It “equates with carelessness, a deviation from the standard of care that a reasonable person would use in a particular set of circumstances.

The first element of duty owed deals with the fact that “duty of care is owed to others and involves how one conducts oneself” (Guido, 2010, p. 92). As a licensed registered nurse our role is to automatically create a nurse-patient relationship anytime a patient presents to our place of employment. This relationship in turn creates a duty of care (Guido, 2010). This relationship of “one person depending on another for quality, competent care—actually forms the basis of the duty-owed concept” (Guido, 2010, p. 94). One example of negligence in the element of duty owed is failing to properly assess/monitor a patient.

The second element of negligence is breach of duty owed to the patient. Guido defines this element as “a deviation from the standard of care owed the patient; that is, something was done that should not have been done or nothing was done when it should have been done” (2010, p. 95). Examples of breach of duty include but are not limited to, not reporting a change in a patient’s condition, administering an incorrect medication or failure to administer and ordered medication. The third element is forseeability. Forseeability “involves the concept that certain events may reasonably be expected to cause specific results” (Guido, 2010, p. 95). As stated by Guido, negligence in forseeability involves “injuries that occur because of lack of foresight, common sense, and/or adherence to standards of care” (2010, p. 97). An example of this is “failing to report another health care provider’s incompetence” (Guido, 2010, p. 94).

The fourth element is causation. Causation “means that the injury must have been incurred directly as a result of the breach of duty owed the patient” (Guido, 2010, p. 98). Causation is subdivided into cause-in-fact and proximate cause. Cause-in-fact indicates “that the breach of duty owed caused the injury. If it were not for the breach of duty, no injury would have resulted” (Guido, 2010, p. 98). Proximate cause “attempts to determine how far the liability of the defendant extends for consequences following negligent activity. According to Guido (2010), “medication errors remain the most common type of errors where there is a direct connection between a breach of duty owed the patient and the actual injury caused by that breach of duty” (p. 98).

The fifth element of negligence is injury. According to Guido, “the plaintiff must demonstrate that some type of physical, financial, or emotional injury resulted from the breach of duty owed the patient. Generally speaking, courts do not...

References: Brous, E. (2009). Documentation & litigation: medical records can be the most important evidence presented in legal actions. RN, 72(2), 40-43. Retrieved from EBSCOhost.
Guido, G. W. (2010). Legal & ethical issues in nursing (5th ed.). Upper Saddle River, NJ: Pearson.
Frank-Stromborg, M., Christenses, A., & Do, D. (2001). Nurse Documentation: Not Done or Worse, Done the Wrong Way—Part II. Oncology Nursing Forum, 28(5), 841-846. Retrieved from EBSCOhost. (2011). Gross Negligence. Retrieved from
Pearson Company. (2009-2010). The Neighborhood. Retrieved from http://pearsonneighborhood
Quick, O. (2006). Prosecuting ‘Gross’ Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service. Journal of Law & Society, 33(3), 421-450. doi:10.1111/j.1467-6478.2006.00365.x
Turton, G. (2009). Factual and legal causation – their relation to negligence in nursing. British Journal of Nursing (BJN), 18(13), 825-827. Retrived from EBSCOhost.
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