The Law of Nursing Malpractice

I. Introduction:

Nearly twelve years ago, Erline A. Reilly wrote that “most New Hampshire attorneys know nothing about nursing law.”1 As a lawyer and a registered nurse, Attorney Reilly had a unique insight into this issue. Hopefully, this article will update us all and provide the appropriate framework for the analysis of potential nursing malpractice cases.

Attorney Reilly’s 1984 article examined a wide variety of legal issues relevant to the nursing profession. This article will focus specifically on the concept of nursing malpractice. As attitudes toward the nursing profession have evolved over recent years, so too has the law. Nurses are increasingly being named as defendants in medical negligence cases. New Hampshire practitioners need to be aware of the relevant developments in the area of nursing malpractice.

This article analyzes the current state of the law with particular emphasis on liability issues and the practical problems relating to the representation of nurses. With respect to liability, areas covered are the appropriate standard of care applicable to nurses, how and by whom the standard of care must be established, examples of nursing negligence, and unique causation issues arising from nursing negligence. The separate issue of legal representation is then analyzed in the context of conflicts arising from common representation of the nurse and his or her employer.

During the past three decades, courts have shifted the standard applied to cases of nurse liability. Early decisions held nurses to a standard of common negligence. More recent decisions, recognizing nurses’ increased responsibilities in the modern hospital setting, hold nurses to a standard of professional malpractice.

II. Background:

In 1964, the Kansas Supreme Court stated that the primary function of a nurse “is to observe and record the symptoms and reactions of patients.”2 Thus, “[a] nurse is not permitted to exercise judgment in diagnosing or treating any symptoms which the patient develops.”3 In accord with this view, the court held that when a nurse fails to exercise due care in the treatment of a patient, the proper cause of action was one of ordinary negligence rather than malpractice.4

Only two decades later, the New York Court of Appeals recognized a more modern view of nursing practice and rejected the “ordinary negligence” standard.

While courts have in the past held that a nurse could be liable for negligence, but not for malpractice, “the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services.”5

In recognition of the modern scope of nursing practice, the court held that a nurse may be held liable for malpractice.6

In New Hampshire, nurses are explicitly within the scope of the medical injury statute.7 As a result, virtually any negligent act or omission committed by a nurse in the course of rendering professional services is considered malpractice.8

In order to prove a case of nursing malpractice under the New Hampshire medical injury statute the plaintiff must establish through expert testimony the applicable standard of care9, a failure to act in accordance with the standard of care10, and legal causation of a medical injury11.

III. Nursing Malpractice

A. Standard of Care
The New Hampshire medical injury statute defines the standard of care applicable to nurses as the standard of reasonable professional practice in existence at the time the medical care in question was rendered.12 If the nurse is a specialist, the nurse’s conduct must be compared with the reasonable practice of a similar specialist.13

In 1971, New Hampshire abandoned the idea of restricting the standard of care to a specific geographic area or locality.14 Prior to this, the “locality rule” required the plaintiff to establish, for example, “the standard of care for . . . nurses in the community of Manchester, New Hampshire.”15 Under R.S.A. 508:13, however, a national standard of care controls.16

The standard of care applicable to a nurse in New Hampshire, therefore, is that which was reasonably expected of a similarly situated nurse at the time of the negligent conduct without regard for the peculiarities of local practice.

In most cases the relevant standard of care is determined with reference to the specific facts of the case.17 Understandably, courts have been hesitant to establish overriding principles of appropriate nursing conduct.

One example of a rule of general application which has been hotly debated involves the nurse’s “advocacy role.” The issue is whether a nurse has a duty to take action when she disagrees with a physician’s order.

Early on, it was understood that a nurse could not use independent judgment and that she was only to observe the patient and report to the physician.18 This attitude was reflected in the 1962 case of Carrigan v. Sacred Heart Hospital19, when the New Hampshire Supreme Court held that, under the circumstances presented, the hospital nurses were not required to disregard a physician’s orders or seek to have them changed.20

However, as the courts began to recognize the true extent of the nurse’s involvement in patient care21, it became widely accepted that the exercise of independent judgment should not be discouraged. Recently, the Ohio Supreme Court addressed the issue:

A nurse who concludes that an attending physician has misdiagnosed a condition or has not prescribed the appropriate course of treatment may not modify the course set by the physician simply because the nurse holds a different view.However, the nurse is not prohibited from calling on or consulting with nurse supervisors or with other physicians on the hospital staff concerning those matters, and when the patient’s condition reasonably requires it the nurse has a duty to do those tasks when they are within the ordinary care and skill required by the relevant standard of conduct.22

Since there was expert testimony in the record showing that the nurse should have taken action to override the physician’s orders, a jury question was created.23

Similarly, in a South Dakota case, both the plaintiff’s and the defendant’s experts agreed that a nurse has a duty “to communicate changes in the patient’s condition to the physician and ‘go further’ if her concerns are not sufficiently or appropriately answered by the physician.”24 The jury was therefore entitled to impose liability based on the nurses’ failure to do so.25

The foregoing demonstrates the difficulties inherent in devising a rule of general application in nursing malpractice cases. The former understanding that a nurse must follow a doctor’s orders without employing independent judgment has been rejected in favor of a more realistic approach. The jury is now permitted to decide whether the standard of care required the nurse to seek to override the physician’s orders. The peculiarities of each particular case drive the inquiry.

B. Necessity of Expert Testimony
Expert testimony is required to establish the appropriate standard of care.26 Such testimony may be provided by a registered nurse with relevant experience27, a nurse who holds a teaching position28, or even a physician with appropriate qualifications.29 In fact, defendant physicians frequently provide invaluable testimony on the nurse’s standard of care as they attempt to deflect blame from themselves.30

In Carrigan, the Supreme Court addressed the competency of the plaintiff’s expert witness. In that case, the plaintiff’s expert was the decedent’s daughter who was employed as a nurse by the defendant hospital. She testified that the failure to place side boards on the patient’s bed did not conform to the standard of care. The Supreme Court held that this testimony was insufficient to establish the standard of care because the opinion did not take into account the fact that the bedrails had been removed by doctor’s order. Since the daughter did not testify that bedrails are required in all cases no matter what the attending physician had ordered, the issue of nursing malpractice was properly taken from the jury.31

C. Breach of Standard of Care
The articulation of the standard of care establishes the breach. For example, when you present expert testimony that the standard of care requires that a nurse observe a post-operative patient at least every fifteen minutes for the first hour, you already know that the nurse failed to do so.32 As a general matter, therefore, there is no meaningful distinction between proving the standard of care and proving a breach.

Acts or omissions constituting a breach of the nursing standard of care have been found in numerous situations. Because few concrete rules can be found, some random examples may be helpful.

In Little Rock, Arkansas, a nurse was found to have breached the standard of care in an outpatient hemodialysis facility when she purposefully left the dialysis needles in the patient’s arm after treatment and called him a “black son of a bitch.”33 Although the patient’s repeated disruptive and abusive conduct placed him 40% at fault, the nurse’s behavior “did not conform to the high standards we necessarily expect of those in the nursing profession. Under extreme provocation, she engaged in language and conduct unacceptable in a highly trained profession.”34

Another combative relationship resulted in malpractice liability for a Kansas nurse. In that case, a husband with concerns about his wife’s labor repeatedly attempted to get the nurse to call a doctor. Apparently engrossed in a magazine article, the nurse on several occasions refused to do anything saying that she was in charge and she would decide what was necessary. When delivery began, the nurse acted too late and had to deliver the baby herself with the help of a doctor who happened to be walking by. A jury verdict against the nurse was upheld on appeal with the court noting that the jury could properly take into account the “antagonistic verbal exchange” between the nurse and the husband.35

Other less extreme examples of nursing malpractice include the failure to take vital signs of post-operative patient often enough36, the failure to delay a patient’s discharge when the patient had an elevated temperature37, the failure to recognize signs of neonatal hypoglycemia38, the failure to properly monitor the patient’s blood sugar level39, and the failure to summon additional assistance to help a post-operative patient from the bathroom back to her bed.40

D. Causation
Although nursing malpractice cases involve the same difficult proximate cause issues as other medical negligence cases41, there are also unique problems which arise. A line of Ohio cases is illustrative.

In 1990, the Ohio Supreme Court addressed the causation issue in the context of a nurse’s failure to keep the attending physician sufficiently informed of the patient’s condition. In such a case, even assuming a breach of the standard of care, the plaintiff “must prove that, had the nurse informed the attending physician of the patient’s condition at the proper time, the physician would have altered his diagnosis or treatment and prevented the injury to the patient.”42 Thus, when the attending physician testified that she would not have arrived any sooner if she had been notified of the patient’s condition, any breach on the part of the nurse was not causal.

Three years later the Ohio court addressed the causation issue from a slightly different viewpoint. The court had previously held that there are certain instances in which the duties of the nurses and the duties of the physician could be found to overlap. Thus each had a legal duty to recognize the patient’s pregnancy complications. Since the physician had already stipulated to being negligent in failing to do so and to the causality of his negligence, the defendant hospital argued that any negligence on the part of its nurses could not possibly be causal. The court disagreed holding that the intervening negligence of an attending physician does not absolve a hospital of its prior negligence if both co-operated in proximately causing an injury to the patient and no break occurred in the chain of causation between the hospital’s negligence and the resulting injury. In order to break the chain, the intervening negligence of the physician must be disconnected from the negligence of the hospital and must be of itself an efficient, independent, and self-producing cause of the patient’s injury.43

Several months later, the Ohio Court of Appeals had an opportunity to apply both of the Supreme Court’s causation decisions in a case involving nurses’ failure to chart circulation checks. Because the defendant physicians testified that they would not have altered their diagnoses or treatment even if the checks had been documented, the Supreme Court’s 1990 decision would require summary judgment in favor of the nurses. Consequently, the plaintiffs relied on expert testimony establishing that a reasonably prudent physician would have altered his diagnosis or treatment if the nurses had properly charted the checks.

The court analyzed the causation issue with reference to the Supreme Court’s 1993 opinion to decide whether the doctors’ negligence was “an efficient, independent and self-producing cause of the plaintiff’s injury” sufficient to break the chain of causation. The nurses’ alleged negligent acts all occurred before 3:50 p.m. on January 24, 1988. Dr. Boll and Dr. Hickman committed negligent acts not only on that day, but also during the next two days when despite the absence of negligence by others, they failed to properly diagnose and timely treat [plaintiff’s] further developing compartment syndrome. The physicians’ continued acts of negligence operated to break the chain of causation between the nurses’ acts and [plaintiff’s] injuries. After 3:50 p.m., the nurses committed no negligent acts co-operating with the physicians’ negligent acts.44

IV. Practical Issues

As nurses increasingly find themselves named as individual defendants in medical malpractice cases, issues related to legal representation arise. Hospital nurses covered under the liability policy of their employer find themselves represented by an attorney whose client is actually the hospital. The potential for an impermissible conflict of interest is manifest under these circumstances since the interests of the nurse are often quite different from those of the hospital.

Separate legal representation is required if the representation of one client will have an adverse effect on the representation of another.45 The divided loyalties of hospital counsel present such a situation. Nurses need personal counsel to protect their individual interests.

For example, discovery issues, including possible assertions of privilege, may be very important to the nurse personally but not very important to the hospital. In addition, situations may arise where the hospital’s trial strategy reflects poorly on an individual nurse who feels strongly that she was not at fault. Or a nurse may be very interested in settling a claim to avoid personal exposure while the hospital would prefer to try the case. As is mentioned above, a physician will often blame the nursing staff for a medical injury. When the physician is an employee of the hospital or may be considered an agent whose negligence will be legally imputed to the hospital, the interests of the nurses are frequently sacrificed.

The mere possibility of divided loyalty should raise the question whether common representation is permissible. There is little doubt that conflicting interests among defendants in medical negligence cases are a very real problem. The nurse’s interests would be better protected by personal counsel in nearly every case.

V. Conclusion

As with most forms of medical negligence, you will often know nursing malpractice when you see it. However, to see it, you must be looking for it. The foregoing is intended to alert the practitioner to the basic issues involved so that medical injury cases may be properly evaluated and prepared.


  1. E. Reilly, Nurses and the Law, 26 N.H.B.J. 7 (Fall 1984).
  2. Richardson v. Doe, 199 N.E.2d 878, 880 (Kan. 1964).
  3. Id.
  4. Id.
  5. Bleiler v. Bodnar, 489 N.Y.S.2d 885, 889 (N.Y. 1985)(citations omitted and quoting 1 Louisell & Williams, Medical Malpractice, §16A.01, at 16A-2).
  6. Id.
  7. R.S.A. 507-E:1,II (Supp. 1995).
  8. R.S.A. 507-E:1,III.
  9. R.S.A. 507-E:2,I(a).
  10. R.S.A. 507-E:2,I(b).
  11. R.S.A. 507-E:2,I(c).
  12. R.S.A. 507-E:2,I(a).
  13. Id. See Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1341-42 (La.App. 1991).
  14. R.S.A. 508:13 (effective 1971).
  15. Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 79 (1962).
  16. By contrast, Delaware retains the locality rule for nurses but not physicians, Medical Center of Delaware, INc. v. Lougheed, 661 A.2d 1055 (Del. 1995), and several other states have only recently adopted a national standard of care for nurses. Wickliffe v. Sunrise Hospital, Inc., 706 P.2d 1383, 1387-88 (Nev. 1985); McMillan v. Durant, 439 S.E.2d 829, 832-33 (S.C. 1993).
  17. See Lambert v. Sisters of Mercy Hospital Corp., 369 N.W.2d 417 (Iowa 1985); Holston v. Sisters of the Third Order of St. Francis, 650 N.E.2d 985, 990 (Ill. 1995); Richardson, supra note 2; Hiatt v. Groce, 523 P.2d 320, 325 (Kan. 1974).
  18. See Richardson, supra note 2 at 880.
  19. Supra note 15.
  20. Id. at 78.
  21. See Bleiler, supra note 5.
  22. Berdyck v. Shinde, 613 N.E.2d 1014, 1024 (Ohio 1993).
  23. Id.
  24. Koeniguer v. Eckrich, 422 N.W.2d 600, 602 (S.D. 1988).
  25. Id. See also Bleiler, supra note 5 at 889(“the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders.”).
  26. R.S.A. 507-E:2,I(a).
  27. See Wickliffe, supra note 16 at 1386-87(expert R.N. was certified in nursing specialties of intensive care, coronary care, emergency room and advanced coronary life support; was certified in quality assurance; had four years of experience conducting quality reviews at various hospitals; involved in determining hospital qualification for JCAH accreditation; and had been nursing supervisor and head nurse of medical-surgical unit); Lougheed, supra note 16 at 1058-59; Holston, supra note 17(“nurse with extensive training and experience”).
  28. Hiatt, supra note 17 at 325(teacher of maternity and obstetric nursing at the University of Kansas Medical School, department of nursing education); Lougheed, supra note 16 at 1058.
  29. See McMillan, supra note 16 at 832(neurologist who taught nursing courses and interacted with a multitude of various nursing staffs competent to testify. Fact that he was a physician and not a nurse goes to weight rather than admissibility); Holston, supra note 17 at 990(physician expert in gastric bypass surgery permitted to testify to nursing standard of care).
  30. See Erby v. North Mississippi Medical Center, 654 So.2d 495, 501-02 (Miss. 1995)(defendant physician testified that there was a standing order requiring nurses to perform blood sugar test without necessity of a direct order from a physician).
  31. Carrigan, supra note 15. Interestingly, the Mississippi Supreme Court recently credited the testimony of the decedent’s non-nurse daughter who had observed her father’s diabetic condition over many years as supporting its finding of a genuine issue of material fact with respect to the nurses’ liability. Erby, supra note 30 at 501-02.
  32. See Wickliffe, supra note 16 at 1386.
  33. Hall v. Bio-Medical Application, Inc., 671 F.2d 300 (8th Cir. 1982).
  34. Id. at 303(quoting district court).
  35. Hiatt, supra note 17 at 326.
  36. Wickliffe, supra note 16 at 1386.
  37. Koeniguer, supra note 24 at 602.
  38. Gibson, supra note 13 at 1341.
  39. Erby, supra note 30.
  40. Lougheed, supra note 16.
  41. R.S.A. 507-E:2,I(c).
  42. Albain v. Flower Hospital, 553 N.E.2d 1038, 1051 (Ohio 1990).
  43. Berdyck, supra note 22 at 1025.
  44. Dillon v. Medical Center Hospital, 648 N.E.2d 1375, 1378-79 (Ohio App. 1993).
  45. New Hampshire Rule of Professional Conduct 1.7(b).