Negligence


When would a nurse face an allegation of negligence?
A nurse would face an allegation of negligence if she is named as a defendant in a medical malpractice lawsuit, a type of civil lawsuit. A lawsuit may be initiated by one or more plaintiffs. Plaintiffs in a typical medical malpractice lawsuit are the patient and the patient’s close family members, such as spouse and dependant children.

A Statement of Claim commences a civil lawsuit by describing the alleged negligence of the defendant(s). It is filed with the court and served on the defendants by a process-server. Defendants are those who are alleged to have harmed the patient. Defendants can be persons, such as doctors and nurses, and legal entities, such as hospitals and regional health authorities. A nurse named in a lawsuit should be represented by a lawyer.

What is negligence?
Negligence is the failure to take the care that a reasonable nurse in similar circumstances would have taken. For a court to find a nurse negligent, the following elements must be proved by the plaintiff(s):

1. Duty of care
A person’s reliance on a nurse’s knowledge and expertise creates a special relationship that gives rise to a legal duty for the nurse to provide reasonable care. Nurses do not have a duty to treat everyone they meet but if a person relies on their professional skill and knowledge, a legal duty to take reasonable care is established.

2. Breach of the standard of care
A court will make a legal determination of what constituted reasonable nursing care in the circumstances. A court’s determination of what could reasonably be expected of a competent, prudent nurse in similar circumstances will be based on the evidence introduced by the parties to the lawsuit. Examples of this evidence include: the patient’s chart; professional standards of practice; institutional policies; and testimony about the availability of equipment and personnel. Specialized nursing expertise 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 must suffer actual harm and prove the harm was caused by the nurse’s negligent acts or omissions. A nurse will not be held liable if the harm could not have been reasonably anticipated as a consequence. A court will not find negligence if there was no harm, even if the nurse’s act or omission breached the standard of care, or if the harm would have happened anyway, despite the nurse’s breach of the standard of care.

4. Damages
The court will order an amount of compensation, called a damages award, to be paid to the plaintiff by the negligent defendant if the plaintiff has proved the elements listed above, as well as the value of the losses suffered.

What defences are available in negligence cases?
Nurses may use one or more of the following common defences:

a) The nurse’s actions were those of a reasonable and prudent nurse in the circumstances
It is crucially important that a nurse work with her lawyer in order for the lawyer to understand how and why the nurse acted as she did. The lawyer can then put the appropriate evidence before the court.

b) Error in judgment
If the evidence suggests that the incident was an error in judgment rather than a failure to act reasonably and prudently in the circumstances, a court may find there was no negligence.

c) Actions of other defendants
Each defendant will have the opportunity to provide evidence in their own defence. Given the multidisciplinary nature of health care delivery, witnesses or defendants may testify as to how they interacted with fellow health professionals during the incident that gave rise to the lawsuit. The court must then determine the proportion of negligence, if any, of each defendant.

d) Contributory negligence
The court could find the plaintiff contributorily negligent if she is partially or entirely responsible for the harm suffered. The court would reduce the damage award proportionately but a nurse found negligent may still be liable for a portion of the compensation.

e) Limitation periods
The plaintiff must initiate a lawsuit within the time specified in provincial/territorial legislation. After this period has passed, the plaintiff is generally barred from suing, although there are exceptions for minors and those who lack mental capacity.

Who pays if a nurse is found negligent?
If a defendant employee is found negligent, the court will normally require the employer to pay the damages award and legal costs pursuant to the legal doctrine of vicarious liability.1 This legal doctrine is based on common law that says, in essence, if the employer had the benefit of the employee’s work, the employer bears the risk. An employment relationship must have existed at the time of the incident and the defendant employee must have been sued for work within the scope of his or her employment.

If the nurse was not working within the scope of employment, was self-employed, or a volunteer, the nurse could be personally responsible for the damages and court costs. Assistance may be available from the Canadian Nurses Protective Society.

  1. infoLAW, Vicarious Liability (Vol. 7, No. 1, April 1998).

N.B. In this document, the feminine pronoun includes the masculine and vice versa.

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.

Vol. 3, No. 1, November 2004, revision of September 1994

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