Negligence, Gross Negligence, or Malpractice
Lesli Sherwin, RN
HCS/478 Health Law and Ethics
May 11th, 2015
Lynda White ADN, BS

Negligence, Gross Negligence, or Malpractice

Malpractice includes both negligence and gross negligence. Malpractice is a tort in which a person who claims a practice in some profession fails in their duty, lacks in their skill to the extent that it causes damage to their client or patient. Negligence and gross negligence are both forms of malpractice. Simple ordinary negligence is the lack of performing in a manner consistent with standards of practice including omissions in practice, and failure to provide care that any other reasonable prudent nurse would provide. The Elements that a plaintiff must prove to win their negligence claim include breach of duty, causation, and damages (Weiler, 1995). If they cannot prove there was a breach in all three of these things, then the plaintiff will lose the case. Gross Negligence, is negligence on a grand scale. It borders reckless behaviors and culpability. It is most simply explained in terms of degree of negligence, or the severity of the negligence is worse than simple or ordinary negligence. Gross negligence can be very subjective and is used in extreme cases that might have ended with manslaughter charges or something of the like. Could the event or act have been controlled by the practitioner? If the answer is yes, then it is probably neglect. If the act was purposeful and the practitioner understood the nature of their actions, conduct, and the ramifications, if they were reckless in their actions, and if the results were substantial then gross negligence would certainly be a consideration.
Documentation is monumental in cases involving negligence. Generally, whatever a nurse or staff writes is believed, and if it wasn’t written down it didn’t happen. As a rule who, what, how, when, why, in what condition they arrived and what condition they left our care should be documented with every patient encounter not only to defend us in court if needed, but also to communicate with other team members. In the case of a wrong leg amputation, your documentation may be the only thing that keeps you from losing the case. Gratefully, you might have documented, "I told the doctor left leg amputation and the doctor insists it is the right leg that is the necrotic leg, and I then called the house supervisor and the Director of Nursing". More than likely you wouldn't omit something that blatantly obvious, but in the Joseph Benson case mentioned in the neighborhood newspaper somebody must have omitted charting something or charted incorrectly. I have witnessed some real shenanigans going on in the surgery suite, and I think the question of having a camera present should cross everyone’s mind at some point in history. I mean we want to have the freedom to be human, but we are never going to know what is really going on behind closed doors until we begin recording it. Recording surgery happens today some doctors require it. Recording events in the hospital will not dispose of all charting. What if the order is not written to remove the ventilator such as at University Community Hospital? (Press, 1995). They exhumed the body and did an autopsy because there was not an order written to remove the ventilator. A video camera in the patient’s room would not have captured the doctor’s order. The importance of documentation cannot be overstated. Even, if you can prove in court that you had an order from the doctor. You have a reasonable enough excuse to not have written it into the chart and you get into zero trouble can you imagine the horror the patient’s family had to go through. It’s not worth it. Take the time to write it down.
I document each detail as I replay the video in my head as soon as possible, even during the patient visit if I can. To settle ethical and legal questions, you would document as in the example above that you notified the doctor, and the superiors involved with the case. I would attempt to stop the surgery and document this also. Yes, under the definitions of malpractice, negligence, and gross negligence I will have to agree with the newspaper article that amputation of the wrong leg would have to be considered negligence at the bare minimum. Not only that but the newspaper could not print, “Negligence Cited…”, without it being slanderous unless a court had come to that determination already, after all it does not state alleged anywhere in the article (The Neighborhood, 2014 ). There are many differences in cases where a wrong limb is amputated. In one case, a surgeon faced legal proceedings over an amputation of the left leg of a person in which both legs were diseased. The right leg was found to be inoperable during surgery, and the surgeon decided the best option for the patient was to amputate the left leg instead (Wrong leg cut off, 1982). The question is, did the doctor have the right to make that decision on paper? What level of negligence cutting off the wrong limb would be determined by the courts evaluation of who, what, how, when, where, why, and how much. Just because the result could be considered gross does not necessarily mean the actions that led to the results were gross. The newspaper article we have to work with does not provide enough information to make an inference other than a possible nursing shortage, union problems, or poor treatment of patients might be the cause. Any or all of the three will be considered either negligent or grossly negligent at some level.
Iatrogenic injury is not always compensated by the tort system nor is the medical staff always at fault. Tort reform promises to address some of the issues surrounding malpractice like protecting medical staff by placing, “award caps” and limiting the number of suits that can be filed (Brody & Hermer, 2011). The term standard of care determines whether medical care is negligent. The precise meaning of this term is always elusive and subjective (Brenner, Brenner, Awerbuch, & Horwitz, 2012). Since, "Medical liability lawsuits are civil actions designed to determine whether the [medical staff were] professionally negligent and whether the negligence caused harm to the patient..." to reach a verdict that is fair, and just it is important to understand and consider malpractice on a case by case basis. In the future, I find it plausible for our leading organization and legal teams to define further the criteria which appropriately satisfies the demands of a negligence trial. We may need to define further and clarify criteria optimal for determining and appropriately compensating for medical negligence.

References
Brenner, L. H., J.D., Brenner, A. T., M.P.H., Awerbuch, E. J., B.A., & Horwitz, D., M.D. (2012). Beyond the standard of care: A new model to judge medical negligence. Clinical Orthopaedics and Related Research, 470(5), 1357-64. doi:http://dx.doi.org/10.1007/s11999-012-2280-0
Brody, H., & Hermer, L. D. (2011). Professionally responsible malpractice reform. Journal of General Internal Medicine, 26(7), 806-9. doi:http://dx.doi.org/10.1007/s11606-011-1635-7
Press, A. (1995, Mar 18). Amputee reaches settlement the man whose wrong foot was cut off made an out-of-court deal with hospital. He'll get at-home care and try artificial legs. Orlando Sentinel Retrieved from http://search.proquest.com/docview/278601241?accountid=35812
The Neighborhood. (2008-2014 ). The Neighborhood 2.0 Ethical Dilemmas. Retrieved from The Neighborhood, HCS/478 Health Law and Ethics website.
Weiler, Kay, RN,M.A., J.D. (1995). Nursing malpractice. Journal of Gerontological Nursing, 21(11), 47. Retrieved from http://search.proquest.com/docview/1021720126?accountid=35812
Wrong leg cut off. (1982, Mar 17). The Globe and Mail Retrieved from http://search.proquest.com/docview/386728955?accountid=35812