InfoLAW: Negligence

Negligence is the failure or omission to provide care that a reasonable and prudent nurse in similar circumstances would have rendered. During their career, a nurse may be faced with a professional negligence allegation arising from their nursing practice from a current or prior patient. A negligence claim may be in connection to variety of circumstances, including incorrect or delayed diagnosis, medication errors or administering the wrong treatment. This article aims to serve as a general summary of nursing negligence in Canada.

When can a nurse face an allegation of negligence?

A nurse could face an allegation of negligence if named as a party in a medical malpractice lawsuit, also referred to as a civil lawsuit, which is a type of legal action claiming compensation for harm alleged to have been suffered. A lawsuit may be initiated by one or more plaintiffs. Plaintiffs in a malpractice lawsuit tend to be the patient or the patient’s close family members, such as a spouse and dependent children.

A formal document¹ commences a civil action by describing the alleged negligence of the defendant(s). Defendants are those who are alleged to have harmed the patient. Defendants can be persons, such as physicians and nurses, and legal entities, such as hospitals, regional health authorities, and independent practices owned by regulated health professionals. A nurse named as a defendant in a lawsuit should be represented by a lawyer.

What is negligence?

To be successful in their claim, the plaintiff(s) will have to introduce evidence to prove harm was caused by the defendant’s negligence, and the value of the harm.

For a court to find a nurse negligent, the following elements must be proven by the plaintiff(s):

1. Duty of care owed by the nurse

A patient’s reliance on a nurse’s knowledge and expertise creates a fiduciary (special)² relationship that gives rise to a legal duty for the nurse to provide reasonable care. This does not signify that nurses necessarily have a duty to treat everyone they meet³ but if a person is relying on a nurse’s professional skills and knowledge, a legal duty for the nurse to provide reasonable care is established.

2. Breach in the standard of care

The court has held that “the law does not require perfection, but it does require the exercise of the care and skill that is to be reasonably expected to a prudent and careful hospital and of a prudent and careful nurse in the same circumstances as the defendants.”⁴

The court will make a legal determination of what would have constituted the reasonable standard of nursing care in the circumstances. This determination of what could reasonably be expected of a competent, prudent nurse in similar circumstances will be based on the evidence introduced during the proceedings. Examples of this evidence include the patient’s chart, administrative records held by the health institution, evidence about the availability of personnel and equipment, professional practice standards, institutional policies, professional treatment guidelines; expert witness testimony; and testimony of parties and witnesses. If a nurse practices in a more specialized environment, or has more nursing expertise, it may lead to a higher standard of care being imposed.

3. Foreseeable harm was caused by a breach in the standard of care

The plaintiff(s) must suffer actual harm and be able to prove that the harm was caused by the nurse’s negligent acts or omissions. Nurses will not typically be held legally responsible (liable) if the harm could not have been reasonably anticipated as a consequence of their actions. A court will typically not find negligence if there was no harm, even if the nurse’s act or omission breached the standard of care. Further, a poor clinical outcome experienced by a patient (for instance if the harm would have happened either way) is not in itself evidence of negligence.⁵

4. Damages

Once it reaches a decision, the court will order compensation, generally called a damages award, to be paid to the plaintiff by the defendant if the plaintiff has proved the elements listed above. The court will also take into consideration the value of the losses suffered.

What defences are available in negligence cases?

The lawyer representing the nurse may use one or more of the following common defences:

1. The nurse’s actions were those of a reasonable and prudent nurse in the circumstances

It is important that nurses work with the lawyer retained to defend them in order for the lawyer to understand how and why the nurse acted as they did in the circumstances. Collaboration assists the lawyer to put the appropriate evidence before the court.

2. Error in judgment

If the evidence reveals that the incident was an error in judgment rather than a failure to act reasonably and prudently in the circumstances, the court may find that what occurred did not meet the threshold of negligence.

3. Actions of other defendants

Each defendant will have the opportunity to provide evidence in their own defence. Given the multidisciplinary nature of the healthcare system, witnesses or defendants may be asked to testify as to how they interacted with fellow health professionals during the incident that gave rise to the lawsuit. The court must then attribute and apportion negligence, if any, to each defendant.

4. Contributory negligence

The court could find the plaintiff(s) contributorily negligent if there is evidence that the plaintiff(s) was partially or entirely responsible for the harm suffered. In this case, the court would typically reduce the damage award by the proportion attributed to the plaintiff(s). However, a nurse found negligent may still be liable for a portion of the compensation.

5. Limitation periods

The plaintiff must initiate a lawsuit within the time specified in provincial or territorial legislation⁶. After this period has passed, the plaintiff is generally barred from suing, although there are exceptions for minors and those who lack mental capacity to make their own decisions.

Who pays the court-ordered damages if a nurse is found negligent?

If an employee is found negligent, the court may order that damages (including legal costs) be paid by the employer pursuant to the legal principle of vicarious liability. This legal principle is based on common law that says, in essence, if the employer had the benefit of the employee’s work, that the employer bears the risk. It is important to note however, that employees retain their own liability even when employers are vicariously liable for their actions. The court determines on a case-by-case basis whether the employer/employee relationship existed at the time of the incident, and whether the employee was acting within the scope of their employment. Please keep in mind that a nurse who is an employee can also be named as a defendant and be held liable for harm caused to a patient. Furthermore, if the nurse is found negligent for matters that are outside the scope of their employment, the nurse will likely be personally responsible for the damages.

If a nurse is found negligent for work done as an independent contractor, i.e. self-employed, the nurse will be responsible for all the legal costs associated with the lawsuit, which include any damage award.⁷

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. The name of the formal document varies across the country and is set by legislation. Examples are Statement of Claim, Notice of Action, Notice of Claim, and Plaintiff’s Claim.
2. Fiduciary relationships are special relationships where one party has to act honestly, in good faith and look after the best interests of the other party as well as possible.
3. For instance, there is no legal duty for a person to stop and render assistance in case of an emergency except in Québec. For more information, please see the CNPS Ask a Lawyer: Good Samaritan
4. Granger (Litigation Guardian of) v. Ottawa General Hospital,1996 O.J. 2129 (Gen. Div.)
5. Boyd et al. v. Edington et al., 2014 ONSC 1130 (SCJ)
6. For example, in Alberta, The Limitations Act sets out a basic two-year limitation period, that commences when the plaintiff knows, or should have known, that the injury or damage that has occurred was caused by the act or omission of the defendant. (https://www.qp.alberta.ca/documents/acts/l12.pdf)
7. For more information for Nurses in Independent Practice, please consult our InfoLAW on the subject.

Revised April 2022

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.