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October 17, 2006
In the health care field, the term malpractice originally encompassed only the negligent wrongs of a physician. In the past, a distinct division existed between a nurse and a physician. The nurse functioned within a much more defined framework. Rather than diagnose patients, treat symptoms, or prescribe medication, it was sufficient for the nurse to wait for and then simply implement a physician’s order. In years past it was virtually unprecedented for a nurse to criticize a physician’s order.
The role of the nurse, however, has changed. Today, nurses commonly assume functions previously performed only by the physician. In hospitals and clinics across the country, nurses have assumed the responsibilities such as the actual examination, diagnosis, and treatment of a patient, oftentimes without any direct supervision by a physician.
As nursing has matured into an increasingly advanced, sophisticated, specialized, and independent profession, the nurse’s role in providing patient care has also expanded – a reality that is particularly true in the face of the ever-increasing demand for cost-conscious health care. As a result, liability for basic nursing negligence has shifted to its “professional” counterpart – malpractice liability. No other specialty relies more heavily on nurses to assess patients and evaluate treatment options than the field of obstetrical nursing, and the stakes for the patients and families involved could not be higher.
Professional Liability for Nursing Negligence
All nurses owe duties to the patients they serve. According to the American Nurses Association, a nurse “promotes, advocates for, and strives to protect the health, safety, and rights of the patient.” Additionally, a nurse is both responsible and accountable for his or her individual nursing practice and will determine the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care. In order to ensure that they are satisfying these ethical and legal responsibilities owed to their patients, modern obstetrical nurses play a prominent and important role in the evaluation of a woman as she progresses with her labor, and the ability of the fetus to successfully tolerate the labor. As the person with the greatest exposure to the patients, it is oftentimes ultimately the responsibility of the nurse to make crucial assessments of patient status and effectively communicate the status reports to the physician also charged with the care of the patient. When there is a breakdown in this necessary line of communication, tragic results can follow.
Nurses with specialized training or extensive experience are held to a higher standard of care, corresponding to what a reasonable and prudent nurse with the same training or experience would have done in the same or substantially similar set of circumstances. Under this standard, an obstetrical nurse with vast experience and/or training will be presumed to recognize potential problems physician who restates the order or if the nurse relies on the physician’s assertion that the physician will take full responsibility employed by members of the nursing profession. A nurse will be liable in tort if harm ensues because he or she does not have or use such knowledge, skill, care, or diligence.
Chain of Command
A nurse that works for a hospital is legally obligated to be aware of these policies and procedures and to comply with the institution’s rules and regulations. Procedures, rules, regulations, and by-laws of various health care institutions can be used to define the nursing standard of care. For example, a hospital ‘s procedure manual for nurses or a nurse’s job description may set forth in detail specific rules of conduct for nurses. On occasion, a nurse may be confronted by a physician’s order which directly conflicts with written hospital policy. If an order is not in accord with accepted medical standards, practices, customary procedures, hospital policies, or regulations, the nurse must defer, question, and even contravene the order.
Nurses have a duty to advocate for the patient through the organizational chain of command when they believe that the physician is unresponsive to concerns about the patient’s condition or is making inappropriate patient care decisions. The chain of command is a specific course of action involving administrative and clinical lines of authority established to ensure effective conflict resolution in patient care situations. A hypothetical example of such a policy may be as follows:
A nurse with concerns about patient care reports those concerns to the attending physician. If after this conversation the concerns are not alleviated, the nurse will proceed to take the concerns to the following people in the following order until such concerns have been alleviated:
(1) Charge Nurse
(2) Nurse Manager or Administrative Supervisor
(3) Chief of the Department
(4) Chief of Staff
(5) Director of Hospital
A nurse is generally encouraged to call on or consult 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 make those calls and or consultations when they are within the ordinary care and skill required by the relevant standard of conduct. When a nurse believes that executing an order would pose a clear risk of harm to the patient, he or she must not comply with the order. If after attempting clarification and confirmation, the order is not properly clarified, confirmed, or corrected, the nurse is obligated not to carry the order out. If the physician insists that the nurse obey the order, despite being advised of potential problems, the nurse should delay executing the order and immediately report the matter to the nurse’s supervisor, and, if necessary, to another physician or another responsible hospital official.
If for example, a nurse is concerned that fetal monitoring strips indicate a fetus may be suffering some kind of distress, and after bringing his or her concerns to the attention of the attending physician the concerns remain unaddressed, the prudent nurse will bring those concerns to the attention of the Charge Nurse, and so forth, until those concerns have been properly and fully resolved. The nurse who initiates the chain of command policy in such a situation is actively ensuring that his or her duty to act as an advocate for the patient has been satisfied. Where no duty has been breached, malpractice liability cannot attach.
Nurses caring for patients have a responsibility to be an advocate for the patient. While not bearing responsibility for making medical decisions and judgments, the nurse bears significant accountability for intervening when it appears that decisions and judgments are not consistent with the standard of care. An effective communication policy that is well known by all nursing staff and physicians can, by its very existence, improve the quality of care delivered to patients, thereby improving patient outcomes and hopefully lessening the number of catastrophically injured infants.
Additional References1. Karen A. Ballard, Patient Safety: A Shared Responsibility, Online Journal of Issues in Nursing, Vol. #8 No. #3, Manuscript 4 (September 30, 2003) available atwww.nursingworld.org/ojin/topic22/tpc22_4.html.
2. Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557 (1995).
3. Mary E. O’Keefe, Nursing Practice and the Law (Philadelphia: F.A. Davis Co. 2001).
 See generally Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 615 (11th Cir. 1990) (stating the appropriate cause of action has now transformed into a malpractice action). See also Lamb v. Candler Gen. Hosp., Inc., 413 S.E.2d 720, 722 (Ga. 1992); Ramage v. Cent. Ohio Emergency Serv., 592 N.E.2d 828, 833 (Ohio 1992).
 American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
 American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
 Normal Pregnancy, Labor, And Delivery, The Merck Manual, available at http://www.merck.com/mrkshared/mmanual/section18/chapter249/249e.jsp.
 See, e.g., Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 46-47 (Tx. Ct. App. 1993) (holding nurses liable for malpractice where they failed to correctly assess a pregnant patient, failed to use equipment to assess fetal heart tomes, and failed to provide the physician with an explanation as to why the patients records were incomplete). See also Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557, 565 (1995).
 See, e.g., Berdyck v. Shinde, 613 N.E.2d 1014, 1017, 1023 (Ohio 1993).
 See, e.g., St. Elizabeth Hosp. v. Graham, 883 S.W.2d 433, 437 (Tex. App. 1994) (noting nurses failed to comply with hospital’s policies and rules in failure to restrain case); Tobia v. Cooper Hosp. Univ. Med. Ctr., 643 A.2d 1, 4 (N.J. 1994) (holding nurses committed malpractice by not complying with hospital policy of not leaving patients unattended on emergency room stretchers with side rails down); Scribner v. Hillcrest Med. Ctr., 866 P.2d 437, 441 (Okla. Ct. App. 1992) (noting evidence clearly demonstrated that nurses were either ignorant of or failed to adhere to hospital policies concerning patient identification).
 See Alvis v. Henderson Obstetrics, 592 N.E.2d 678, 682 (Ill. App. Ct. 1992) (noting nursing negligence when the nurses failed to detect a baby’s breech position in time for a doctor to perform a cesarean delivery despite the hospital policy requiring that its labor and delivery nurses be able to determine the presenting part of the baby by doing a vaginal exam).
 See, e.g., Volger v. Dominguez, 624 N.E.2d 56, 63 (Ind. Ct. App. 1993) (“If a nurse . . . fails to . . . question a doctor’s order when [it is] not in accord with standard medical practice and the omission results in injury to the patient, the hospital will be liable for its [nurse] negligence.”); Czubinsky v. Doctors Hosp., 188 Cal. Rptr. 685, 686 (Cal. Ct. App. 1983) (holding the nurse liable for the injuries to the patient when the nurse chose to follow the physician’s orders and leave the patient while there was a specific hospital policy requiring that one member of the surgical team remain with a post-operative patient).
 Mary E. O’Keefe, Nursing Practice and the Law 140-141(Philadelphia: F.A. Davis Co. 2001). See generally Gladney v. Sneed, 742 So. 2d 642, 646 (La. Ct. App. 1999) (noting nurse testimony “that when a nurse sees that a necessary transfer has not been made, she must go to the ‘chain of command’ and ‘above the doctor’ to take action”).
 Berdyck, 613 N.E.2d at 1024; Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759, 763 (Tex. App. 1993) (stating that if a drug order is contradicted because it contains abnormally high dosages, incompatible medications, or conflicts with the patient’s allergies or physical condition, the prudent nurse will refuse the order and immediately seek corroboration from the prescribing physician or other health care provider as indicated by hospital policy).
 See, e.g., Koeniguer, 422 N.W.2d at 604 (applying “danger sign to the well-being of any patient” standard).
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