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Malpractice suit questions whether RN followed standards of practice

Always follow your standards of practice to the letter — this case demonstrates why.

Over the years, I’ve written several blogs about standards of practice and the standard of care of a nurse named as a defendant in a professional negligence case, including “Case Underscores Importance of Adhering to Standards of Practice in Labor and Delivery.”

Standards of practice are the “how to” of your nursing practice. They are based on many sources, including your nurse practice act, your professional association’s adopted statements on its area of nursing practice and state and federal case law.

Standards of practice set a national basis for all nursing practice. Even so, based on each state’s laws and statutes they can interpreted and applied differently.

In a professional negligence case against you as a named defendant, a nurse expert witness establishes the applicable standard of care upon which the jury makes its determination as to your compliance or non-compliance with that standard.

Standards of practice serve as the basis for what your overall legal standard of care is in a particular situation in a lawsuit. That legal standard is what other ordinary, reasonable and prudent nurses would do in the same or similar circumstances in the same or similar community.

When researching this blog topic, I came across the New Jersey case of Colleton v. Biebel, which illustrates the importance of both your standards of practice and overall standard of care.

Facts of the case

The patient, a state trooper and a martial arts competitor, was injured during a match when he kicked his opponent. He immediately heard a “pop” in this right leg. An MRI and ultrasound showed a ruptured Achilles tendon.

His podiatrist suggested corrective surgery, which he described as a “simple procedure.” The patient underwent surgery with the podiatrist and his partner performing the procedure.

The patient was discharged with a “pain pump” attached to the back of his right leg. The catheter was removed after several days. However, shortly thereafter, the patient experienced severe pain in his leg, which strong anti-pain medications did not relieve.

Unable to determine why the patient was experiencing pain, the podiatrist sent the patient to a pain management specialist and a physiatrist. The physiatrist’s nerve conduction tests indicated there was no nerve function from his “right knee downward.”

The patient began experiencing painful “electric shocks” in the right leg. He saw a peripheral nerve surgeon, who did two separate surgical procedures that resulted in some feeling in the patient’s leg and foot, but the electric shocks continued.

Two years later, the patient underwent surgery to remove the tendons in his toes and insert metal screws to straighten the toes, which helped him walk.

However, his right foot increased two sizes, and he needed special shoes.

Patient files malpractice case

The patient’s lawsuit alleged that he suffered permanent nerve injuries because of the compression from the mid-thigh pneumatic tourniquet that was overpressurized during surgery. He also alleged others present during the surgery — the podiatrist’s partner, an anesthesiologist and a nurse — failed to intervene and have the podiatrist lower the tourniquet pressure.

The trial jury found the patient did not prove the defendants deviated from their respective standards of care. The patient asked for a new trial, which was denied by the judge.

The judge also entered a “judgment of no cause of action.”

The patient appealed the trial court’s rulings.

Appellate court decision

Although there were many expert witnesses and testimony at the trial level, the focus in this blog is on the testimony of a nurse, who was an expert witness.

The nurse expert testified that:

  • The Association of periOperative Registered Nurses guidelines established in 2007 warned that a minimum amount of pressure should be used for pneumatic tourniquets.

  • As a nurse in the OR, the nurse who took part in the surgery should have been aware of the AORN guidelines.

  • The OR nurse deviated from the standard of care by not advocating for her patient.

  • The OR nurse should have voiced her concern about the overpressurization with the podiatrist.

For these and other reasons, the trial court’s decision was reversed, and the case was remanded back for a new trial.

Standards of practice talking points

This case is unpublished and should not to be used in any court as precedent. Even so, it provides considerations for you to keep in mind. They are:

  • Always stay up to date with standards of practice in your area of nursing specialty.
  • Know and conform to your nurse practice act and its rules.
  • Remember that a nurse expert witness is required to educate the jury as to your standards of practice and your overall standard of care.
  • Being your patient’s advocate is an ever-present legal and ethical duty.

Take these courses to learn more about protecting patients and yourself:

National Patient Safety Goals – Nursing
(1 contact hr)
This course covers the 2019 National Patient Safety Goals for nursing staff in the hospital setting.

Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. It shows how ethics functions within nursing and on a hospital-wide, interdisciplinary ethics committee. The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation, and genetic testing.

Protect Yourself: Know Your Nurse Practice Act
(1 contact hr)
Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. Nurses have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

By | 2020-06-08T14:36:27-04:00 June 8th, 2020|Categories: Nursing careers and jobs|0 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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