The Joint Commission defines negligence as "failure to use such care as a reasonably prudent and careful person would use under similar circumstances" and malpractice as "improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory."1 The commission's definition further states: "Malpractice is a cause of action for which damages are allowed."1

Most lawsuits against nurses are for alleged violations of tort law. In general terms, a tort is an action or omission that harms someone. According to Nursing Malpractice: Sidestepping Legal Minefields, a tort is

a civil wrong or injury resulting from a breach of legal duty that exists by virtue of society's expectations regarding interpersonal conduct or by the assumption of a duty inherent in a professional relationship (as opposed to a legal duty that exists by virtue of a contractual relationship)[horizontal ellipsis]. Malpractice refers to a tort committed by a professional acting in his professional capacity.2

The law distinguishes between unintentional and intentional torts. An unintentional tort results from negligence. In order to prove negligence, a plaintiff must show each of the following2:

* The defendant owed the plaintiff a specific duty (in nursing malpractice cases, the standard of care).

* The defendant breached this duty.

* The plaintiff was harmed.

* The breach of duty caused the harm.

In contrast, "an intentional tort is a deliberate invasion of someone's legal right. In a malpractice case involving an intentional tort, the plaintiff doesn't need to prove that you owed him a duty. The duty [horizontal ellipsis] is defined by law, and you're presumed to owe him this duty."2 In such a case, the plaintiff has to show only that the defendant breached her or his duty and that the breach caused the plaintiff harm. Examples of intentional torts include assault, battery, false imprisonment, invasion of privacy, and slander. (For more, see "Nurses, Negligence, and Malpractice," September 2003.)

James M. Stubenrauch

senior editor

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