This paper examines three closely related but legally distinct concepts in nursing practice: negligence, malpractice, and gross negligence. Drawing on sources including the National Practitioner Data Bank and peer-reviewed nursing literature, it outlines the definitions, key attributes, and contributing factors associated with each concept. The paper explores specific categories of nursing negligence — such as failure to communicate, failure to document, and failure to adhere to standards of care — and explains how malpractice differs from simple negligence. It also addresses the heightened standard required to establish gross negligence. Finally, the paper highlights the critical role of thorough documentation in protecting nurses from liability and ensuring patient safety.
According to findings by the National Practitioner Data Bank, nurses are increasingly being named in malpractice and negligence lawsuits (Croke, 2003). These charges typically arise from any failure to act — or from an action — that leads to patient injury. In most cases, malpractice and negligence are associated with an accidental failure to comply with a standard of clinical practice, which in turn raises the likelihood of a lawsuit. The charge of negligence or malpractice is particularly difficult to defend because of the interrelated concepts of standard of care and duty of care (Avery, 2009). Most healthcare professionals in the nursing field are acutely aware of the threat of a lawsuit for malpractice or negligence, making it essential to understand how these concepts are defined and distinguished.
Negligence in the nursing field is described as the failure to use healthcare judgment as a reasonably prudent and careful individual would under the same circumstances. Generally, the literature on nursing negligence employs several terms to define the concept. The most commonly used terms include: failure to adhere to standards, failure to communicate, failure to assess and monitor, failure to use clinical equipment responsibly, failure to serve as a patient advocate, and failure to document (Croke, 2003). These terms correspond to the various categories in which negligence occurs in nursing practice.
The failure to adhere to standards of care is determined based on the standards established through hospital policies that are designed to protect patients from substandard care. The standard of care provides the benchmark for determining whether a professional has violated the duty owed to a patient. These standards originate from several sources, including professional nursing associations and state boards of nursing. By contrast, the failure to use equipment responsibly is associated with the expectation that nurses know the safety capabilities, attributes, limitations, and hazards of the equipment they use. Nurses are also expected to comply with manufacturers' usage recommendations and to refrain from modifying equipment.
The failure to communicate and to assess and monitor patients is grounded in the reality that a patient's health status can change — either gradually or suddenly — and nursing professionals are often the first to notice such changes. The ability of the nurse to assess, monitor, and accurately report changes can be the difference between a patient's life and death. With respect to patient advocacy, the rights of patients are a central feature of nursing care. Professionals in this field are obliged to work toward patients' excellent care and to incorporate patient rights within the existing healthcare system (Croke, 2003).
Malpractice is defined as the unethical or improper conduct, or the unreasonable lack of skill, by a professional or an individual in an official position. This definition is applied to various practitioners in the medical field, including nurses, lawyers, and dentists. When applied to these professionals, malpractice signifies unskillful or negligent performance of duties in which professional skill is required. While the concept can also refer to a cause of action for which damages may be awarded, it is described differently across state nurse practice acts, federal regulations, and institutional policies.
In recent years, there has been a notable increase in malpractice lawsuits against nurses. This increase is attributed to various factors, including early patient discharge, delegation of responsibilities, nursing shortages, technological advancements, better-informed clients, and enhanced nursing independence and responsibility. The likelihood of malpractice cases is also heightened by the fact that the concept can mean different things depending on the context in which it is used, which can create confusion regarding the standard of care expected of nurses in contemporary practice (Weld & Bibb, 2009, p. 2).
Based on its definition, malpractice in nursing involves several key attributes: the individual must be a registered nurse; the performance being examined must have occurred while the individual was acting in that registered nursing capacity; and the conduct must represent evident incompetence or an unexpected lack of professional skill. Taken together, these attributes underscore the importance of professional competence and adherence to a standard of conduct.
"Distinguishing gross negligence from ordinary negligence"
"Documentation as a defense against negligence claims"
Croke, E. M. (2003, September). Nurses, negligence, and malpractice. American Journal of Nursing, 103(9), 54–63. Retrieved from
Thornton, R. G. (2006, October). Malice/gross negligence. Baylor University Medical Center, 19(4), 417–418. Retrieved from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1618741/
Weld, K. K., & Bibb, S. C. G. (2009, March). Concept analysis: Malpractice and modern-day nursing practice. Nursing Forum, 44(1), 2–10.
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