Malpractice in Advanced Nursing Practice: Law and Ethics

Legal and Ethical Foundations of Advanced Nursing Practice

When nurses pursued independent practice outside hospitals, the law supported their bid to breach traditional roles (Kjervik & Brous, 2013). This phenomenon was described as a form of "growing militancy" that refused to stay under the dominion of medicine (Baer, 1993, as cited in Kjervik & Brous). Ethics supported the accompanying empowerment of this act — expressed as autonomy in practice, beneficence and care-based ethics in doing what nurses see as best for patients, and justice or fair treatment for patients and all providers involved.

The earliest nurse practitioner program was designed in 1965 by Loretta Ford and Henry Silver in response to the lack of primary care physicians at the time. The program emphasized primary care, health promotion, and disease prevention. The idea spread and the number of primary care providers increased. This is why many of the first court suits involving advanced practice nurses (APNs) involved those working in acute care facilities. These suits were connected either to APNs' expanded roles and privileges or to their relationships with physicians concerning antitrust, insurance, and physician supervision.

The APNs' expanded role and privileges fall under a standard of care. This legal standard for a health professional defines the expected performance of a nurse. However, this expectation evolves as clinical practice changes and nursing roles expand. One category of cases in this area concerns negligence — the failure to meet the set standard of care, which leads to patient injury (Kjervik & Brous, 2013).

Elements of Nursing Malpractice and Negligence

As malpractice suits increase against APNs, they need to be more knowledgeable about the fundamentals of nursing malpractice (Walker, 2011). These fundamentals include their liability, options for malpractice coverage, their future role, and legislative issues such as tort reform. Sources of guidance include their employer or organization, professional associations, schools and colleges of nursing, and state and national regulatory bodies. It has been reported that APNs extend care by phone in 20–30% of interactions, which exposes their patients to a form of liability not previously recognized or considered. In adjudicating cases, courts will look for a reasonable response — drawn from formal policies and procedures, expert testimony, and evaluations of local and national standards related to causation and injury. Nursing practice is not only a career but also a scientific process that evolves with healthcare advancements and public policy (Walker, 2011).

Causation is one of the elements that constitute negligence (Turton, 2009). It is the concept that links the claimant's loss to the defendant's negligent behavior. Among recently established approaches to determining factual causation is the identification of a causal process in each case, so that the correct test for establishing factual causation may be applied. If the negligent behavior consists of misdiagnosis or mistreatment of an illness, the causal problem is medical in nature and calls for a unique analytical approach. If the negligence involves a failure to caution the patient about the risks of treatment, liability cannot be established without factual causation (Turton, 2009).

Quality of Care and Negligence Litigation

A key question in negligence research is whether high-quality healthcare institutions are sued less often than lower-performing institutions (Studdert et al., 2011). A group of tort claims filed against 1,465 nursing homes from 1998 to 2006 was gathered for investigation from the Online Survey, Certification and Reporting System and the Minimum Data Set Quality Measure/Indicator Report. Investigation revealed an inverse relationship between nursing home performance and litigation; however, litigation levels were only marginally lower for the best-performing nursing homes compared to lower-performing ones. Earlier research had already explored the relationship between healthcare quality and the risk of negligence litigation, but the question remained whether delivering high-quality care substantially reduces the risk of suit (Studdert et al., 2011).

Findings raised questions about the capacity of tort litigation to provide incentives for improving the quality and safety of nursing home care. There was no clear evidence that superior performance is rewarded with substantially lower litigation risk. Ongoing long-term care sector policy directions — such as public reporting of performance indicators and performance-based payments — may offer better incentives for making nursing homes safer for patients (Studdert et al., 2011).

Conclusion: Toward Rational Medical Error Reform

The nurse is as subject to error as everyone else. Thousands of medical errors are made every year, resulting in patient injury that must be compensated (Sohn, 2013). The ideal — and the challenge — is to develop a rational system that compensates for injury, identifies the medical error, and learns from events so that appropriate systems may be established to eliminate or reduce future errors.

Only a small proportion of medical injuries are caused by negligence; most stem from system errors or factors inherent to medical practice. The tort system can compensate for harm or injuries resulting from negligence, but it is ill-suited as a comprehensive remedy for systemic failures. The more rational recourse lies away from blame-based, costly, and unsatisfactory solutions such as tort litigation and malpractice suits, and instead toward compensation-based systems such as alternative dispute resolution and no-fault options. The trend favors non-cap tort reform solutions and investment in more reasonable oversight systems — including health courts and no-fault systems — which offer both quantitative and qualitative benefits and represent more equitable and safer healthcare system options (Sohn, 2013).