Literature Review on "Nursing Malpractice"

Literature Review 13 pages (4389 words) Sources: 40

[EXCERPT] . . . .

Nursing Malpractice

Introduction- Modern nursing is a rewarding, but challenging, career choice. The modern nurse's role is not limited only to assist the doctor in procedures, however. Instead, the contemporary nursing professional takes on a partnership role with both the doctor and patient as advocate caregiver, teacher, researcher, counselor, and case manager. The caregiver role includes those activities that assist the client physically, mentally, and emotionally, while still preserving the client's dignity. In order for a nurse to be an effective caregiver, the patient must be treated in a holistic manner. Patient advocacy is another role that the modern nurse assumes when providing quality care. Advocacy is the active support of an important cause, supporting others, or speaking on behalf of those who cannot speak for themselves (Kozier, Erb and Blais, 1997).

A typical paradigm of modern nursing is that of patient advocacy, most notably epitomized by Jean Watson. Within this model, it is the patient who is predominant in all decisions -- emotional or medical. Unfortunately, there is another side to the positive advocate position in modern medicine. Humans being imperfect, there are times in which errors are made; whether by act or omission in a health care situation. When this happens, and care deviates from acceptable best-practice standards, and injury or death are caused to the patient, current law defines the actions as medical malpractice. Standards and regulations for medical malpractice vary from country to country, sometimes even location to location, but in almost all countries medical professionals are required to maintain professional liability insurance to mitigate the risk and costs of legal actions in a malpractice situation. Nurses are not always required to carry malpractice insurance -- it depends on their location and degree of care (an OR nurse is more likely to need insurance than someone specializing in Osteology, for instance) (Sloan, 2008).

There are several interesting themes surrounding medical malpractice that this literature review will focus: what is a "standard" of nursing care, what is malpractice, what is malpractice insurance and how does it affect the medical field, what effect does malpractice have on healthcare costs, specifically -- how does malpractice impact nursing, what are the trends in malpractice issues, and finally what conclusions may we draw and what are some future implications surrounding the issue?

Nursing Models and Expectations -- As noted, the role of the modern nurse is quite complex. Most agree that one of the seminal expectations of nursing is quality care and patient advocacy. A critical theoretical approach to patient advocacy, Jean Watson's Theory of Human Caring represents a dramatic paradigm shift, and as a result, it has been a source of considerable controversy since its introduction. It is still considered a relatively new theory, with the first publication in 1979 in Watson's book Nursing: The Philosophy and Science of Caring (revised 2008). Discussion abounds, possibly because of the implications of her theory challenge the applicability of nursing practice in the contemporary world of budget cuts and HMO's, as to less the validity and more the practicality of Watson's theory. There is a great deal of information on Watson's theory, critiques, applications, and amalgamations of her theory, and the content and veracity of the information that is available is well documented and explored.

Nursing is both an art and a science, which has the goal of preserving the worth of humankind through the process of caring. Caring is the essence of nursing and a moral ideal: Caring...has to become a will, an intention, a commitment, and a conscious judgment that manifests itself in concrete acts. Human care, as a moral ideal, also transcends the act and goes beyond the act of an individual nurse and produces collective acts of the nursing profession that have important consequences for human civilization (Watson, 1988, p. 32). With this is also the responsibility of communicating the idea of responsibility in health care between patient and system, and helping the patient understand that they have a duty to actively participate in their own process of wellness (Wright, Frey, and Sopory, 2007).

Also, Watson stresses the subjectivity of the human experience, and uses the term phenomenal field to describe a person's individual frame of reference, influenced by past experiences and can never be truly known by another person. Another aspect of Watson's theory is transpersonal caring, in which nurse and patient coparticipate in the goal of achieving health (Watson, 1988, p. 70). Watson (1988) defines health as harmony between mind, body and soul, and illness as a subjective disharmony between mind, body, and soul. As well, integral to Watson's theory are the 10 carative factors that serve as a "framework for providing a structure and order for nursing phenomena" (Watson, 1997, p. 50). The 10 carative factors are as follows:

Humanistic-altruistic system of values

Faith-hope

Sensitivity to self and others

Helping-trusting, human care relationship

Expressing positive and negative feelings

Creative problem-solving caring process

Transpersonal teaching-learning

Supportive, protective, and/or corrective mental, physical, societal, and spiritual environment

Human needs assistance

Existential-phenomenological-spiritual forces.

All of this presupposes a knowledge base and clinical competence (Watson, 1988, p. 75). Nursing must separate itself from the reductionist views of the traditional science medical paradigm and focus on movement towards a human science nursing paradigm. Watson also readily acknowledges that her theory is a work in progress, and she "invites participants to co-create the model's further emergence" (Watson, 1997, p. 52). This is in accordance with a view, shared by many, that nursing is never static, but fluid; and that the process of caring and advocacy are so ingrained in the nurses being that the medical job is defined by that attitude (Zerwekh and Claborn, 2008).

Thus, the core concept for nurses and the professional and non-professional people they interact with, "care" is one of the fields least understood terms, enshrouded in conflicting expectations and meanings. Although the caring model may vary among cultures, caring is universal and timeless at the human level, transcending societies, religions, belief systems, and geographic boundaries, moving from Self to Other to the community and beyond, affecting all of life and the ability for nurses, as well as patients, to self-actualize and assist in the healing process (Earp, French and Gilkey, 2007).

This is certainly not the only nursing theory available, but it is one that combines the most common views on what health care should do for the patient, and is seminal in addressing issues that may be uncovered when dealing with malpractice. This universal theory is both intellectually and emotionally attractive, and seems to embody the very principles of health care -- however, no theory of care can address every potential eventuality in health care. Since the human system is adaptive, so is disease, and so are individual ways of manifesting medical issues. This is what makes it so very difficult to prove, with certainty, that malpractice occurred.

Medical Malpractice -- While the overall definition of medical malpractice is the same in most countries, the legal interpretation varies by situation. We can, however, make some generalizations about the way the Court system perceives care. Other than in the United States, there is an assumption that the medical personnel is doing everything they can possibly do to ease the patient's discomfort and aid in healing. It is perhaps an economic predisposition, but most physicians outside the United States do not have the range of disparate income and therefore are not always the target of malpractice suits. In fact, in an interesting irony of both philosophical and economic debate, many U.S. citizens are opting for their surgical procedures in other countries -- ironically those countries without a required malpractice insurance requirement and far less litigation which, of course, drives the cost down considerably for most procedures. Additionally, many of the physicians performing these procedures are U.S. training and, in some cases, U.S. citizens who have relocated to avoid the high cost of practice in the United States (Marlowe and Sullivan, 2007).

The legal structure of medical malpractice is often difficult to prove. There are so many unknowns and what-ifs in medicine that it is usually unclear whether treatment A would have resulted in 100% recovery while Treatment B. resulted in death, etc. However, in order to bring a successful malpractice claim forward, four elements of negligence must be established:

A duty was owed by the physician, hospital, or staff

That duty was breached and the provider failed to confirm to a standard and acceptable care template; this standard of care is based on a best-practices model as well as expert testimony about what would reasonably be expected in most cases of the type under discussion.

The breach of care caused an injury or death.

There must be damages that are provable and consistent with the claim. For most tort systems, if there are no damages, there is no claim. However, damages can occur without negligence; for example, a fatal disease or accident (Medical Malpractice, 1997)

The legal definition constituting what a medical professional is rather broad -- the defendant… READ MORE

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