Nursing Liability and Nursing Malpractice – Part 1

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 www.TheHealthLawFirm.com.

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. www.TheHealthLawFirm.com 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.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

 

By |2024-03-14T10:01:15-04:00May 15, 2018|Categories: Board of Nursing, Defense, Malpractice|Tags: , , , , , , , , , , , , , , , , , , , , |Comments Off on Nursing Liability and Nursing Malpractice – Part 1
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Purpose of Florida E-FORCSE Prescription Database Not for Disciplinary or Criminal Prosecution Purposes Against Physicians, Pharmacists or Other Health Professionals

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

8 Indest-2008-5As you are no doubt aware now, Florida has an active prescription drug monitoring program (PDMP). It is called the “Electronic-Florida Online Reporting of Controlled Substances Evaluation” or “E-FORCSE.” More often it is referred to simply as the “prescription drug database” by Florida physicians.

The Florida Legislature adopted the E-FORCSE system in Florida by Section 893.055, Florida Statutes.

Section 893.055(7)(b), Florida Statutes, States Access to Program’s Database is Limited to Program Manager.

A pharmacy, prescriber, or dispenser shall have access to information in the prescription drug monitoring program’s database which relates to a patient of that pharmacy, prescriber, or dispenser in a manner established by the department as needed for the purpose of reviewing the patient’s controlled substance prescription history. Other access to the program’s database shall be limited to the program’s manager and to the designated program and support staff, who may act only at the direction of the program manager or, in the absence of the program manager, as authorized. Access by the program manager or such designated staff is for prescription drug program management only or for management of the program’s database and its system in support of the requirements of this section and in furtherance of the prescription drug monitoring program. Confidential and exempt information in the database shall be released only as provided in paragraph (c) and s. 893.0551. . . .

Data from E-FORCSE Not Intended to be Used to Bring Disciplinary Action Against Health Care Practitioners.

Most notably, it was not the intent of the Legislature for any state or federal agency to use the data from the E-FORCSE system primarily as evidence for the purpose of taking licensure or disciplinary action against physicians, dentists, pharmacists or other licensed health professionals.

Unfortunately, we have seen cases where, contrary to the Legislature’s intent, data from E-FORCSE has been recited in a case against a licensed health professional as an example of “substandard performance,” “falling below the standard of care,” or professional “negligence.” Additionally, we have been informed of the alleged use of the E-FORCSE system by state and federal law enforcement authorities in criminal investigations and prosecutions of licensed health professionals. However, the exact wording of Sections 893.055 and 893.0551, Florida Statutes, should be carefully analyzed in determining under what conditions access and use of the information are authorized.

Defending Against E-FORCSE Data’s Being Used Against a Health Care Practitioner.

If you are a physician, dentist or pharmacist, and data from E-FORCSE is used in or discussed in any complaint investigation, license investigation, Drug Enforcement Administration (DEA) investigation, criminal investigation, administrative complaint, charge sheet or indictment, you should ask your attorney to research the advisability of filing a motion to strike it. In addition, your attorney should also consider filing a motion in limine, before any major hearing or trial, to exclude all use or mention of the data and E-FORCSE system.

In addition, the attorney for the licensed health professional may explore the possibility of moving to exclude any and all information and evidence derived from the unauthorized use of the E-FORCSE databank under the “fruit of the poisonous tree” doctrine. To date, we have not seen any cases where this has been done.

Again the exact language of Sections 893.055 and 893.0551, Florida Statutes, should be consulted to determine whether access and use have been properly authorized.

Information on Florida’s Prescription Drug Monitoring Program from the Florida Department of Health.

The information below is taken from an informational pamphlet distributed by the Florida Department of Health (DOH) called “E-FORCSE; Florida’s Prescription Drug Monitoring Program.” It is available online, at www.e-forcse.com.

Florida’s Prescription Drug Monitoring Program Facts.

E-FORCSE will take in controlled substance dispensing data from pharmacies and health care practitioners, and will make the information available to all health care practitioners who can then use the database to guide their decisions when prescribing and dispensing certain highly-abused prescription drugs. With this information, health care practitioners may be able to identify patients who are “doctor shopping”—obtaining multiple prescriptions for the same controlled substance from multiple health care practitioners. Doctor shopping is a felony in Florida.

Who is Required to Report Controlled Substance Dispensing Information to E-FORCSE?

Any health care practitioner who has dispensed a controlled substance in schedule II, III and IV, as defined in section 893.03, Florida Statutes-like OxyContin, Percocet, Vicodine, etc., will be required to report to the database. This includes pharmacies licensed under chapter 465, Florida Statutes, (including mail order and Internet pharmacies that dispense controlled substances into Florida) and health care practitioners licensed under chapters 458, 459, 461, 462, 465, or 466, Florida Statutes.

Who is Not Required to Report Controlled Substance Dispensing Information to E-FORCSE?

A health care practitioner who:

– Administers a controlled substance directly to a patient if the amount is adequate to treat the patient during that particular treatment session;
– Administers a controlled substance to a patient or resident receiving care as a patient, at a hospital, nursing home, ambulatory surgical center, hospice or intermediate care facility for the developmentally disabled;
– Administers or dispenses a controlled substance in the health care system of the Florida Department of Corrections;
– Administers a controlled substance in the emergency room of a licensed hospital;
– Administers or dispenses a controlled substance to a patient under the age of 16; and
– Dispenses a one-time, 72-hour re-supply of a controlled substance.

How Can E-FORCSE Help Improve a Patient’s Standard of Care?

– It allows the health care practitioners to choose and prescribe controlled substances that will not negatively interact with medicines prescribed by other health care practitioners.
– Pharmacists can determine for their patients if their health care practitioners have prescribed controlled substances that might negatively interact when used together.
– Health care practitioners can determine if their patient has had multiple prescriptions for the same drugs from multiple health care practitioners. This identifies those patients potentially engaged in the crime of doctor shopping. When health care practitioners intervene, they can help their patients find treatment.

How Can E-FORCSE Help Improve the Public Health of Florida?

Health care practitioners can identify a potentially illegal diversion pattern for drugs when they request and receive a Patient Activity Report (PAR). A PAR can alert health care practitioners to doctor shopping. In addition, this information can assist law enforcement, medical regulatory boards and the Attorney General’s Medicaid Fraud Control Unit (MFCU) with active investigations into criminal activity regarding controlled prescription drugs.

Who Has Access to the Information Stored in E-FORCSE?

A health care practitioner who is subject to licensure or regulation by the DOH under chapter 458, chapter 459, chapter 461, chapter 462, chapter 464, chapter 465, or chapter 466, Florida Statutes, will have direct access to their specific patient’s information. Other direct access to information will be limited to the E-FORCSE program manager and designated staff for the purpose of program management.

Indirect access may be requested by the following organizations upon being verified and authenticated by E-FORCSE staff.

– DOH or appropriate health care regulatory boards who are involved in a specific investigation involving a designated individual for one or more prescribed controlled substances;
– The Attorney General (AG) for Medicaid fraud cases involving prescribed controlled substances; and
– A law enforcement agency during active investigations regarding potential criminal activity, fraud or theft of prescribed controlled substances.

Are Health Care Practitioners Required to Access E-FORCSE Before Prescribing a Controlled Substance?

Health care practitioners will not be required to access E-FORCSE before prescribing a controlled substance. It will be voluntary; however, physicians are encouraged to use it as a tool to improve patient care.

Is E-FORCSE Compliant with the Federal Health Insurance Portability and Accountability Act (HIPAA)?

Yes, in addition to meeting the federal HIPAA requirements, E-FORCSE will meet all required DOH security requirements.

What is the Penalty for Disclosure of Confidential Information in the E-FORCSE Database?

A health care practitioner or other individual who has access to the information in the E-FORCSE database who discloses confidential information will be committing a third-degree felony.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health care practitioner, do you use E-FORCSE? Why or why not? Please leave any thoughtful comments below.

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. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“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.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

By |2024-03-14T10:01:19-04:00May 15, 2018|Categories: Pharmacy Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |Comments Off on Purpose of Florida E-FORCSE Prescription Database Not for Disciplinary or Criminal Prosecution Purposes Against Physicians, Pharmacists or Other Health Professionals
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Nursing Liability and Nursing Malpractice – Part 2

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In this blog I discuss the concept of nursing malpractice. It is the second blog of my two-part series. To read part one, click here.

The Duty of Reasonable Care.

The plaintiff must first show that the nurse had a duty to provide care for the plaintiff. The element of duty is usually straightforward and relatively easy for the plaintiff to prove because once nurses undertake care for their patients they have a clear duty to provide care for that patient in a competent and reasonable manner. Nurses owe a clear duty of care to all of their patients.

Breach of Duty.

When applied to nursing, a breach of a duty occurs when a nurse does, or does not do, what a reasonable nurse would have done under the same, or similar, circumstances. This would mean that the nurse’s care fell below the acceptable standard of care.
The standard of care is a legal concept which reflects how a nurse is expected to act professionally. It incorporates the expectation that nurses conduct themselves with the degree of care, skill and knowledge that reasonably competent nurses would exhibit in a similar situation. It is important to remember that the standard represents a minimum level of practice to which nurses must adhere in order to avoid being found negligent. In other words, nurses do not have to exert heroic efforts to perform their job satisfactorily; they are expected to exercise their good judgment, education and training to the best of their ability, under the circumstances. Nursing care that falls below the acceptable standard of care may result in a medical malpractice lawsuit against the nurse. The standard of care is particular to each field of nursing practice. For instance, orthopedic nurses determine the standard of care for orthopedic nurses.

Injury or Damage.

To prove the element of injury the plaintiff must be able to establish that, in addition to pain and suffering, they have experienced a physical injury, lost money or have an actual reduction in the quality of their life. The injury which the plaintiff suffered will help to determine the monetary damages that will be awarded if the plaintiff succeeds at trial.

Causation.

Causation is often the most difficult element of medical malpractice to prove. In order to prove that the defendant caused their injury, loss or harm, the plaintiff must show that the defendant’s act or omission either caused, or was a substantial factor in causing, harm to the plaintiff. If the defendant proves that the harm would have occurred anyway, irrespective of the defendant’s act or omission, then the negligence action will fail for lack of causation.

Sources for the Standard of Care.

Where do nursing standards come from, and who decides what the standard of nursing care should be in each particular medical malpractice case? The answer is that the sources for nursing practice standards are varied. The court relies on some or all of theses sources to help determine the applicable standard of care in each individual case.
Some of these sources for nursing standards include:

1. Florida Nurse Practice Act, Chapter 464, Florida Statutes;
2. Other Florida Statutes and the Florida Administrative Code;
3. Case law;
4. Principles, guidelines and standards of professional associations such as the American Nursing Association (ANA);
5. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO);
6. Hospital Policies;
7. Standards of Care as testified to by other members of the profession; and
8. Authoritative Nursing Texts and Journals.


Nurse’s Accountability for the Standard of Care.

As a licensed nurse, you are expected to know what the generally accepted standard of care entails and follow that general standard in your daily practice. The policy and procedure manual of your facility should contain nursing care guidelines. However, if the facility you are working in does not adhere or comply with the generally accepted standard of nursing care, then, following the facility’s policies and procedures will not protect you from a charge of malpractice. This is because all nurses are accountable for the nurse’s standard of care. If you are aware that your facility’s policies and procedures are below the generally accepted standard of care, then you should promptly notify your nurse-manager or the risk-control committee of your concerns.

Conclusion.

Over the years nurses are becoming ever more likely targets for plaintiffs, and their attorneys, in medical malpractice cases. It is extremely important for a nurse to know the malpractice laws that encompass the nursing profession. By knowing each element of medical malpractice and the different standards of care that a nurse is held to. A nurse who can adhere to the different standards of care can avoid being held liable for medical malpractice.

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 www.TheHealthLawFirm.com.

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. www.TheHealthLawFirm.com 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.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

By |2024-03-14T10:01:57-04:00May 15, 2018|Categories: Board of Nursing, Defense, Malpractice|Tags: , , , , , , , , , , , , , , , , , , , , |Comments Off on Nursing Liability and Nursing Malpractice – Part 2
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“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.
Copyright © 2022 The Health Law Firm. All rights reserved.
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