By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A wrongful act that causes harm to a person for which the law allows a person to recover is called a “tort.” The most common type of tort is one based on negligence. In order to recover form a tort based on negligence, there are four elements which must be met are that there is an act (or failure to act) in which the following are present: 1) a duty owed by the one performing the act to the one who is harmed; 2) an act (or failure to act) which breaches that duty; 3) actual damage or harm sustained; and causation (in other words, the act or failure to act caused the damage or harm).

Malpractice is just another name for professional negligence. Professional negligence is a tort committed by a licensed professional, in this case a nurse. In order to show nursing malpractice, one must show all of the elements of a negligence tort. The only difference is that in professional negligence, the duty that must be shown is the professional duty that the licensed professional owes to the one injured, in this case, her patient. Accordingly, the duty owed will be one of the nurses professional duties as a nurse.

I will discuss the concept of nursing malpractice further in this two-part blog series.

Defining Negligence.

Negligence is the failure to use such care as a reasonably prudent person would use under similar circumstances.

The law of negligence is part of what is known as “tort” law. The term “tort” originates from the French word meaning “wrong.” The law of negligence therefore deals with injuries or a wrong caused by one person towards another. Most negligence lawsuits are civil, not criminal, cases. A person can be found negligent even though they did not actually intend to harm the inured party, because negligent conduct is the behavior which results in unintended harm.

Defining Medical Malpractice.

Medical malpractice can occur when a health care professional fails to exercise the degree of care that a reasonable health care professional would exercise under the same or similar circumstances. In other words, medical malpractice is negligence committed by a health care professional.

Medical malpractice is a specialized area of law that deals with negligence claims against health care professionals. Medical malpractice is often perceived as conduct which is somehow more egregious than mere negligence. This perception is erroneous because medical malpractice is simply ordinary negligence by a healthcare provider that causes some injury to the patient.

Several years ago nurses were only liable for negligence. Although as nurses exercise more autonomy, their legal liability has changed. Courts in a number of states recognize and identify nursing negligence as a form of medical malpractice.

A Florida lawsuit helps to illustrate this point. In this case, a mother made a routine prenatal visit to the hospital. While in the waiting room the mother complained to the nurse of severe abdominal pain. Over the next hour and a half the mother complained of pain five times, each time she was told that she would have to wait to be examined. When the mother was finally examined her unborn child’s fetal heart rate was only 60 to 70 beats per minute. An emergency cesarean section was performed but the baby was born severely depressed, hypoxic, suffered from severe brain injury and developed seizures within the first hour.

In this case the nurse did not intend to cause harm to the baby or the mother, however the nurses failure to have the patient examined when she complained of severe abdominal pain and her failure to recognize the onset of fetal distress was negligent. A reasonably prudent nurse would have had the patient examined by a physician and recognized signs of fetal distress when the patient complained of acute abdominal pain. The hospital settled this case for $2 million.

The Four Elements of Medical Malpractice.

In order to prevail in a medical malpractice lawsuit, the plaintiff must prove each of these four elements:

1. the defendant owed the plaintiff a duty of reasonable care;
2. the defendant breached her duty;
3. the plaintiff incurred an injury, loss or harm; and
4. the defendant’s acts or omissions caused the plaintiff’s injury, loss or harm.

The plaintiff must prove each of these four elements by a preponderance of the evidence. A preponderance of the evidence means that it is more likely that the defendant committed the medical malpractice than not.

Check the Nursing Law Blog for More.

In the second part of this blog I will go into more detail about the four elements of medical malpractice. Check back next week for that blog.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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