, , , , , , , , , , , , , , , ,

Carol W

By: Carol Wells, MBA, BS, RN, Paralegal (Guest Blogger)

Greetings, TPS readers! Today, we’re going to discuss a very important area of law: Medical Malpractice. If you don’t currently work in the area of medical malpractice, and find yourself thinking: “Well, this topic doesn’t really apply to me.  I’m not a med mal paralegal.” Think again. Even if you never touch a single medical malpractice file during your extensive career as a paralegal, this topic is applicable to you — very applicable. Don’t believe me? See if you answer “yes” to any of the following questions:

(1)   Do you ever get sick?

(2)   Do you sometimes visit the doctor?

(3)   Do your family members and friends sometimes visit the doctor?

(4)   Is it possible that you or a loved one will suffer an injury or ailment?

(5)   Is it possible that you or a loved one will need to have surgery?

(6)   Are you concerned about the health and wellbeing of you and your loved ones?

We’re guessing you answered “yes” to all six questions! I did too. Now that we have your attention, here are a few statistics, which may surprise you:

  • Each year 225,000 people in our nation die as the result of some form of medical malpractice.
  • Medical malpractice is currently ranked as the 3rd highest cause of death in the United States. (Yes, the third…isn’t that crazy?)

In this article, Carol provides us with some basics regarding Medical Malpractice. Who better to write this series for us than a nurse…and paralegal? What a stellar combination!

Your first med mal lesson begins — right now.

In the medical malpractice arena, there are two legal issues that can occur, malpractice and negligence. Negligence is considered to be a failure to act prudently; malpractice is more serious and is considered to be “improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position (Joint Commission).” This can apply to any health professional whether medical or not, as well as legal professionals and public officials).

Medical Malpractice is a term used broadly to convey an issue in which there has been a mistake or failure to act causing a patient harm. However, the term is a misnomer because what has occurred is a breach of duty owed to the patient. This can occur at any level of care provider inclusive of Physicians, Nurse Practitioners, Physicians Assistants, Medical Residents, Nurses, etc. Each member of the health care team has a duty to a standard of care. These standards are dictated by several agencies most obviously the State Licensure Board, and are further dictated by the policies of an employer health care facility. A Standard of care is defined as what is acceptable as reasonable given the state of patient’s health and the treatment required, and increases with level of skill and professional standing.

A more succinct definition, according to Aiken, as quoted in “Legal Clinic” by Kathy Graves Ferrell (Journal of Legal Nurse Consultants, July 2007), a standard “is a degree of skill, care, and judgment used by an ordinary prudent health care provider under similar circumstances.” Duty to provide care is to uphold a minimum standard. It is functionally the minimum care provided that will not cause harm to the patient. Legally, the definition for a breach of duty used is: when a provider fails to live up to that standard of care another prudent provider would have attained in a similar circumstance. This explanation illustrates why it is a universal issue among healthcare providers. Providers with similar education functioning in a similar health care environment are assumed to have similar capabilities and to act in a similar manner.

Every direct health care provider is required to note their treatment related interactions, and the patients’ response to these interactions, on a medical record. This serves to prove, and in some cases disprove, an action or inaction on that part of the healthcare provider. The medical record is considered a legal document that is subject to subpoena. This record, and any records of testing and procedures, must be made available to both, the plaintiff’s attorney, as well as the defense. It will become part of the trial record and serves as a narrative of what occurred with the patient from admission to discharge.

Medical Malpractice, Nursing Malpractice, and other physician extender malpractice, such as a Physician Assistant or Nurse Practitioner, all follow the same basic rules. All who practice independently, such as a Nurse Practitioner, a Physician Assistant, and a Physician, must carry malpractice insurance. Hospital employees, such as Floor Nurses, are usually covered by the hospital. Since this is a personal injury and or negligence case, it falls under Tort Law. As we are aware, a Tort is an action or omission that can cause harm. In an extreme case, as was newsworthy recently, was the trial of Michael Jackson’s physician, Conrad Murray, was convicted of involuntary manslaughter. Another extreme case in the recent past was Charles Cullen, the Nurse who killed several patients in several New Jersey area hospitals. In the case of Charles Cullen, it was hospital records that proved his whereabouts, access to patients, and access to the medications used to commit murder, although this falls under criminal law.

Within the tort system are Unintentional and Intentional torts. Unintentional Torts fall under the realm of negligence, while intentional torts – as the name implies – results from direct malpractice causing harm. In the case of Malpractice, it is not necessary to prove duty to care, as the law assumes that a duty is owed to the patient. All that needs to be proven is that an action caused harm. To further illustrate this, consider battery of a nursing home patient. Or refusing the right of a patient to leave a facility against medical advice. As long as the patient has the capacity to choose, they have the right to choose to leave and to refuse care. To refuse this right would be false imprisonment and battery. Other examples would be invasion of privacy, as in a violation of HIPAA laws, whereby hospital staff, who look up the medical records of patients or provide care to them, disclose information regarding their health, conditions, or medical treatment in an inappropriate fashion.  This is a major area of concern for all of us, but especially for celebrity patients.

Health Care workers are in a precarious position where they must be vigilant about how they approach a situation, use their existing knowledge, and know when they need to acquire additional skills. In addition, they cannot be afraid to seek out other providers with more specialized skill sets, when needed.  They must maintain a very high degree of ethics.

We’ll end Part I here, TPS readers, but Carol will be back soon to feature Part II of our Medical Malpractice Series. She has a fantastic, in-depth series of articles planned to share more information regarding med mal to better educate us all on this important topic.


Cartwright Vanzandt, R., (2011), Standards of Care, Journal of Legal Nurse Consultants, 22, 1, 14 – 18

Graves Ferrell, K., (2007), Documentation, Part 2: The Best Evidence Of Care, Journal of Legal Nurse Consultants, 107,7, 61 – 64.




Carol Wells is a 52-year-old woman with 30 years Nursing experience in diverse areas of the health system. She became a Nurse in 1983, after graduating as a LPN, achieving her ASN in 1987, a Bachelor’s degree in Health Care Management in 1999, and MBA’s in Management Information Systems, Health Care Management, and Marketing. Carol is currently on leave from a Doctorate in Health Administration.

Be sure to check out Carol’s blog, Leftist Moderate Speak, which features politicaldiscussions about healthcare topics at: www.leftistmoderatespeak.com.

We’ll see you next time, TPS readers! Have a most fantastic day in paralegal land!