ENS Legal Nurse Consulting provides consultation services in all areas of emergency medicine nursing and emergency department (ED) medical malpractice cases. Edward Shradar, has in-depth knowledge and experience as an emergency department staff nurse, flight nurse, ED manager and nurse educator.
We provide medical malpractice consulting services for plaintiff and defense attorneys on emergency department standards of care, Joint Commission and government regulations, electronic health record, ED workflow, and complex interdisciplinary team environments.
Emergency Medical Malpractice in California
Medical malpractice occurs when a healthcare professional deviates from the standard of care that results in injury or death to the patient. When a doctor, nurse, or healthcare provider is negligent in providing medical care, they are liable for damages. As nurses take on a greater role in providing patient care in emergency departments, malpractice claims against nurses have also increased.
Medical errors are one of the leading causes of death in the United States. According to a study by Johns Hopkins Medicine, medical error accounts for more than one-third of deaths in the U.S. Statistics over an 8-year period have averaged more than 250,000 deaths per year due to medical errors. California is among the states with the highest number of medical malpractice incidents.
However, many of these medical errors go unreported or undiscovered. A patient or the patient's family may never learn about mistakes made during treatment which caused a serious injury or death. Even when a medical mistake is discovered, it may be difficult to pinpoint who was responsible for the mistake.
Another study published in the Academic Emergency Medicine journal found that “the largest sources of error, as identified by the individual malpractice insurer, included errors in diagnosis (37%), followed by improper performance of a procedure (17%). In 18% of claims, no error could be identified by the insurer.”
An experienced professional who has worked in emergency departments, managed departments, and educated nurses understands nursing standard of care and can advise attorneys on medical malpractice cases involving nurses and emergency room treatment. ENS Legal Nurse Consulting provides consulting services for plaintiff and defense attorneys in medical malpractice cases.
Common Injuries and Medical Malpractice in California Emergency Rooms
Just about any type of emergency room accident or injury can be involved in a medical malpractice case. Even minor injuries can lead to a more serious injury through negligence nursing care. Common emergency room admission accidents include:
- Automobile accidents,
- Pedestrian and bike accidents,
- Sports injuries,
- Slip and falls,
- Cutting or piercing injuries,
- Struck by an object,
- Burn injuries,
- Drug poisoning,
- Animal bites,
- Diabetes complications, and
- Intentional injuries.
Complaints of pain or symptoms of illness can range from mild to severe. The most common complaints or reasons for going to the emergency room may include:
- Stomach Pain,
- Breathing Difficulty,
- Cold or Flu Symptoms,
- Broken Bones and Sprains,
- Viral or Bacterial Infections,
- Chest Pain, and
- Urinary Tract Infections.
Negligence in the ED can involve doctors, surgeons, nurses, EMTs, or other healthcare professionals. Negligence and allegations of medical negligence can happen at any point during ED care, from making a phone call before seeking treatment to problems with follow-up care after treatment. However, some of the most common allegations of medical errors from patients include:
- Failure to diagnose,
- Wrong diagnosis,
- Delayed diagnosis,
- Improper treatment,
- Failure to monitor the patient,
- Treating the wrong body part,
- Patient misidentification,
- Improper intubation,
- Improper IV or central line insertion,
- Catheter UTIs,
- Surgical site infections,
- Over or under medicating,
- Poor documentation,
- Poor communication between providers and patients,
- Poor communication between providers,
- Limited staffing and staff shortages,
- Lack of communication during shift changes, and
- Equipment failures.
Role of a Nurse in Maintaining the Standard of Care
According to California Civil Jury Instructions, the standard of care for an ED nurse in a medical malpractice lawsuit is as follows:
“An emergency department nurse is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful ED nurse would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care".
You must determine the level of skill, knowledge, and care that other reasonably careful ED nurse would use in similar circumstances based only on the testimony of the expert witnesses, including the defendant, who have testified in this case.”
In establishing nursing malpractice, the plaintiff generally has to prove the following elements:
- There was a patient-nurse relationship between the defendant nurse and the plaintiff;
- The nurse's services were within the scope of services for which the nurse is licensed,
- The nurse deviated from the nursing standard of care; and
- The nurse's negligence was a proximate cause of the plaintiff's injury or death.
In an emergency department medical malpractice claim, the standard of care for nurses and doctors is different. A nurse's conduct should not be measured by the standard of care for a physician or surgeon in the ED. The nurse's conduct is measured against other nurses in the same or similar locality and under similar circumstances.
When a nurse or doctor is negligent in providing care which results in an injury, the hospital is also generally liable for the provider's negligence. Under respondeat superior laws, the principal is responsible for the actions of the agent, or employee. In most medical malpractice claims, the hospital will be vicariously liable for the negligence of a nurse or other ED healthcare employees.
Emergency Department Localities
Nurses in California are generally held to the same set of state and national regulations and guidelines. However, emergency department nurses may have differing standards of care based on locality.
For example, the job of an ED nurse in a rural area of California may be very different when compared to an ED department in urban San Francisco or Los Angeles. This includes the type of injuries treated, patient volume, availability of resources, number of doctors and other healthcare staff on-hand or on-call, and timeline of patient treatment and care.
Scope of Practice for Nurses
The scope of practice for nurses describes what activities nurses are authorized to perform, what medical activities nurses can and cannot delegate and who they can delegate those duties to, and supervision required. The scope of practice depends on the individual state, the type of nursing license, and any specialized or advanced training.
Generally, nursing licensure is divided up into 3 main types, each with a different set of training requirements, licensure, and scope of practice. These include:
- Licensed Practical Nurse (LPN) or Licensed Vocational Nurse (LVN)
- Registered Nurse (RN)
- Advanced Practice Registered Nurse (APRN)
Standard of Care Regulations for Nurses
Each state has its own Nurse Practice Act (NPA) and a Board of Nursing (BON). These state laws and bodies are primarily responsible for state-based nursing licensure, rules, and regulations, and oversight. This includes:
- Education Requirements and Program Standards;
- Standards of Practice;
- Scope of Nursing Practice;
- Licensure and Titles;
- Requirements for Licenses; and
- Disciplinary Procedures and Remedies.
National Standard of Care Regulations
To become a licensed nurse generally requires passing the National Council Licensure Examination (NCLEX) for each level of nursing: NCLEX-PN for LPNs and LVNs; or NCLEX-RN for RNs.
APRNs generally require a Master of Science in Nursing (MSN) or Doctor of Nursing Practice (DNP) degree. APRNs can include various categories of nursing specialties, (which may have different classifications in different states), including:
- Nurse Practitioner (NP)
- Nurse Midwife (NMW)
- Nurse Anesthetist (NA)
- Clinical Nurse Specialist (CNS)
A nurse practitioner can further specialize in a number of areas of care, with further subspecialties.
Joint Commission Standard of Care
The Joint Commission is a nonprofit group that provides voluntary accreditation for hospitals and healthcare organizations. The commission's standards are used to evaluate healthcare organizations and assess performance.
The Joint Commission's standards can be a source of evidence for the standard of care for nursing care and emergency department care in medical malpractice cases. However, these standards generally require an expert witness to apply the standards to the facts of the case.
California Standard of Care Regulations
In California, the California Nursing Board Act and the California Board of Registered Nursing regulate state standards of care for nurses. The nursing standards of care and scope of practice depend on the type of nursing license.
Practical Nurse Scope of Practice
In California, the scope of practice for an LPN or LVN includes focusing on fundamental skills and patient care, including taking vital signs. LVNs must generally be supervised by a registered nurse.
Registered Nurse Scope of Practice
In California, some of the actions an RN can perform and administer include:
- Perform patient assessments,
- Administer medication,
- Determine nursing diagnoses,
- Perform IV therapy,
- Dispense medication,
- Educate patients and their families,
- Perform moderate complexity laboratory tests,
- Conduct medical tests,
- Provide treatment,
- Delegate medical tasks to other health care professionals, and
- Make referrals to specialists.
Advanced Practice Registered Nurse
Advanced practice nurses in California include NPs, NMWs, NAs, CNSs, and other advanced practice nursing licenses. The scope of practice includes the ability to assess, diagnose, and treat medical conditions, prescribe medications, order diagnostic tests, interpret tests.
The nurse practitioner shall function within the scope of practice as specified by the Nursing Practice Act and as it applies to all registered nurses. (16 CCR § 1485) However, NPs generally have a broader range of duties, with the major difference being the ability to prescribe medication.
Contact ENS Legal Nurse Consulting in San Ramon, California
ENS Legal Nurse Consulting is a medical legal consulting firm in San Ramon, California. At ENS Legal Nurse Consulting, we assist defense and plaintiff attorneys in emergency medicine nursing and emergency department medical malpractice cases.
Edward Shradar, a Legal Nurse Consultant, has over three decades of experience working in the area of emergency medicine nursing, including positions as emergency department staff nurse, flight nurse, manager and nurse educator. This experience allows Edward, to provide an in-depth wealth of knowledge on ED standards of care, Joint Commission and government regulations, electronic health record, ED workflow and complex interdisciplinary team environment to deliver quality patient care.
Contact ENS Legal Nurse Consulting at 925-785-6227 today or use our online contact form for assistance with your emergency medicine and ED nursing malpractice case.