NEGLIGENCE IN THE WORKPLACE

The role of the educator is multifaceted in today's staff development department. Educators' job descriptions vary in what is expected of them in performance from institution to institution. Although positions vary, the responsibilities faced on a daily basis are similar in many respects. Similarities include developing programs, mentoring, testing competencies, leading committees, and researching the latest best practices. Many similarities become differences as responsibilities change in a fluid healthcare system.

As healthcare responsibilities influence our jobs, there may be many changes to our responsibilities. That being said, educators are expected to be familiar with legal issues pertinent to our positions. Negligence is one of those topics that may confuse some or leave us staying up nights worrying about having performed our duty when we certify a nurse as being competent. In this column, I will discuss guidelines for negligence in the workplace from my perspective as an educator. I will give a brief history of law, define terms regarding negligence, and apply them to staff development.

HISTORY

In the early 19th century, civil wrongs called torts were defined broadly until negligence became distinguished as a wrong for which an award for damages was given. It was then that a physician who held him or herself up to be competent in the profession began to be held to have an obligation to act properly in providing his or her services to the public. Acting properly became accepted by the general public as a duty owed (Dobbs, Keeton, & Owen, 1984).

The lack of care which may have resulted in an injury to the patient constituted a breach of duty. The breach of duty is known as negligence. According to Black's Law Dictionary (Black, 1979), the breach constitutes a wrong for which a professional would be held liable. The Industrial Revolution with its many factory and railroad accidents prompted the emergence of today's lawsuits and revolutionized the concept to include responsibility for liability.

Although laws have evolved through varied legislation that has been passed during the years following the Industrial Revolution, the changes include four basic components called elements without which there can be no basis for an unintentional injury. The unintentional injury must contain the four elements of negligence which when met result in legally defined negligent acts (Diamond, Levine, & Madden, 2000). These negligent acts and their definitions should be familiar to nurses in staff development.

DEFINITIONS OF NEGLIGENCE

According to Black's Law Dictionary (Black, 1979), negligence is a failure to do something or use care in doing a duty that a reasonable, prudent person would do under similar circumstances. The circumstances that may signal negligence in a case are those that are termed comparative, criminal, and contributory, with a measure in degrees such as slight, ordinary, or gross. Other attributes may be active or passive negligence.

When negligence is seen as a cause of action or the theory of negligence, it is the basis for a lawsuit. Negligence is also the conduct where a breach of duty to a person that is owed by another has not been fulfilled. In lawsuit settlements, the law allows compensation to be given when harm is caused as a result of an omission or failure to do something that a reasonable nurse should do or has failed to do in giving nursing care (Ashley, 2004a).

DUTY AND BREACH OF DUTY

A duty applies to the nurse anytime he or she undertakes care of a patient (Ashley, 2004b). A duty is also undertaken when one peforms a job. Education of staff is a duty that a staff development educator takes on as part of the job responsibility. When undertaking the duty, a standard of care applies and is usually defined by the policies, protocols, and procedures for the specialty area. In addition, the state nurse practice act is also applicable as well as practices for specific diseases (Brooke, 2004).

The reasonable nurse standard also applies, and the question becomes, Would a reasonable nurse in this situation take the same action? If the answer is no, there may be a breach of duty. Taking this a step further, does the reasonable nurse standard apply to the nurse educator? Yes, an educator has a duty to act as a resonable professional in performing his or her duty to provide education that reflects current standards of care. How one achieves the performance of standards of care is by developing measurable objectives and testing nurses to see if they have met these objectives (Sullivan, 2004).

Documentation is a core behavior of nursing practice. Documentation is important to preserve evidence of accomplishment and adherence to standards of care. In meeting the obligation to provide standard of care, documentation is everything. There's an old adage that states, if it is not documented, it is not done. This adage applies to keeping records of individual nurses' education and acting with reasonable care to prevent the appearance of negligence.

CAUSATION AND DAMAGES

Proof of negligence depends on the element of causation or cause. The proof of misconduct, actual cause of injury, or "but for" cause of the injury needs to be proven for liability to be assigned. In other words, had it not been for the actions of the person, the other party would not have been injured. According to Diamond et al. (2000), courts are replacing "but for" with "substantial factor" for causation as it may be difficult to prove. Regardless of the proof used, the person to whom injury was caused has the burden to prove that the defendant was the cause of the injury.

Negligence can be proven when all of the elements are present and an injury occurs. An actual or physical injury or damage must be attributed to the negligent act. Damage or injury caused by a staff nurse who was judged as being competent may be attributed to the educator if the teaching provided did not reflect current standards of care and if the nurse was passed despite being incompetent.

Damages can be of two types, one being the actual loss or injury which is the result of an actual failure to perform a duty of care according to current standards. The other damages are the monetary awards or compensation given for the losses suffered as a result of the injury or failure to perform one's duty (Black, 1979). If there is no injury, one of the elements is missing, and therefore, there is no negligence.

When injury does occur, the award is based on the nature and extent of the injury. Courts award damages to punish the defendant for his or her actions and to deter future actions; to restore the losses of the plaintiff or to provide compensation for past, present, or future losses such as loss of wages; or to pay medical bills. Damages awarded to punish a person are usually not covered by insurance and may subject a nurse to be sued for recovery of award by the hospital. The damages have an implication for staff development educators.

IMPLICATIONS FOR STAFF DEVELOPMENT

Would a staff development educator be held responsible for the actions of a nurse who has been a participant in an orientation or other educational program designed by that educator? Would there be a cause for action when a nurse was found to be negligent in performing an act such as cardiopulmonary resuscitation? Could the nurse claim that the negligent action was the result of not being taught properly how to perform cardiopulmonary resuscitation? There are no easy answers to these questions. In providing education for staff, a duty is owed to both the recipient of the education and the person who will be affected by what the recipient does as a result of that education.

According to Sullivan (2004), "liability for an action by a nurse may be possible but unlikely" (p. 67). The likelihood of a successful cause of action would depend on whether what was taught was based on current standards of care and if passing the student was an appropriate decision based on competency to perform the action or skill required of the nurse (Sullivan, 2004). In searching the literature, I did not find any cases of successful cause of action, but I did find some references to the education of children and adults.

In the education of children and adults, there has been an emphasis on providing a quality education, although there have been no cases when students were successful in claiming negligence in provision of that education (Watts, 2005). Noteworthy cases of negligence include one where a young student was able to bring suit for "intentional educational malpractice" in Hunter v. Board of Education (Watts, 2005, p. 170). This and other lawsuits have been filed regarding poor quality of courses (Rochford, 2001), but they were not successful.

Courts have held that there is a duty to provide quality education, but there must still be proof of injury. Proof of injury may be difficult to show as the burden of proof lies with the person suing who must show that there was an intentional effort made to not provide quality education to the student, thus making it impossible to learn (Watts, 2005). The impossible learning situation may not have been proven, but this action leaves the door open to further lawsuits which may one day be recognized as a cause of action and subsequently lead to a successful lawsuit. Once there is a successful lawsuit, the flood gates will open.

CONCLUSION

Nurses in staff development have a duty to provide current education to those entrusted in their care. In meeting the duty of a professional, a reasonable nurse standard applies because a person may be affected by what the recipient does as a result of that education. The education must be properly documented to limit implication of negligence of care. In addition, incompetent staff must not be passed and held as being competent. Allowing incompetent staff to pass not only would be unethical but also would open the doors to legal nightmares for the educator. Staff development educators may avoid legal pitfalls by remembering what constitutes negligent action and adhering to best practices when educating nurses.

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