Liability for carelessness is given its legal expression in the law relating to negligence (Sidaway v Bethlem Royal Hospital [1985]). Compensation paid to settle claims continues to increase year on year in the NHS, with NHS England alone paying some £2.36 billion last year for clinical negligence claims with legal cost running to billions more (NHS Resolution, 2019).
As well as any damages that may be awarded, nurses accused of negligence face having their professional integrity and good name challenged in court and the prospect of further action being taken by their employer and regulatory body. This article considers the elements of a negligence action and how these are applied to nursing.
Negligence
Negligence is a civil wrong or tort and is best defined as actionable harm (Bolam v Friern HMC [1957]). Negligence has developed in English law under the common law by judges setting rules through decided cases. These cases have established three key elements for a successful negligence action, namely that:
Duty of care
In law we are not generally required to be careful with each other. There is no duty of simple rescue in England and Wales. However, in certain situations, called duty situations, the nature of the relationship gives rise to a duty of care. The courts rely on previous cases to guide them as to when a duty of care arises. In novel situations they apply the test established in Caparo Industries Plc v Dickman [1992], where the forseeability of harm, the closeness of the relationship and whether it is just and reasonable to impose a duty is considered by the courts.
The relationship between nurse and patient is recognised in English Law as giving rise to a duty situation (Kent v Griffiths & Others [2000]). This is a duty to be careful, to take care and not to harm the patient through careless acts or omissions. Two nurses were sacked by their NHS trust when they failed to attend a man who collapsed and died outside the emergency department. The family sought compensation from the NHS trust for the nurses' failure to discharge their duty of care (BBC News, 2012).
Breach of duty
Once a duty of care has been established a patient who feels they have been harmed by a nurse's negligence must show that the care given fell below the standard required in law as a result of carelessness.
Nurses are generally expected to meet the standard of care set by the profession, employer, and the law. In law, the professional standard of care is determined by reference to Bolam v Friern HMC [1957]. Known as the Bolam test, it requires that professionals meet the standard of the ordinary skilled person exercising and professing to have that special skill.
Lord Diplock in R(Burke) v GMC [2005] described a nurse's duty of care as a:
‘Single comprehensive duty covering all the ways in which you are called on to exercise skill and judgement in the improvement of the physical and mental condition of the patient.’
Case law demonstrates that the standard covers direct and indirect care and treatment, advice giving, record-keeping even the quality of handwriting (Prendergast v Sam and Dee Ltd & others [1989]). If a nurse's actions are in keeping with a respected body of professional opinion then they will not have fallen below the standard required in law and there will be no liability in negligence. This will be the case even if there were different ways of performing a task. A judge cannot find negligence just because they prefer one professional's view over another's (Maynard v West Midlands RHA [1984]).
However, in Bolitho v City & Hackney Health Authority [1998] the House of Lords held that any expert evidence used to support the professional standard must stand up to logical analysis. The existence of a common practice in a profession does not necessarily mean that it is not negligent. Even if the nurse has followed accepted practice, this does not necessarily preclude a finding of negligence if the standard is not evidence based or research focused and so does not meet the test of logical analysis (Hucks v Cole (1968).
A 13-year-old girl with Crohn's disease underwent a colectomy because her symptoms were not being controlled. After surgery she returned to the ward lying on her left side and was not turned, nor did she have her position changed by the nurses caring for her until the following morning. She had remained in the same position for some 16 hours and when she tried to stand up found her left leg felt numb and weak and she had difficulty walking. A lesion of the sciatic nerve had occurred due to pressure palsy. She accepted a settlement of some £400 000 (JMW Solicitors, 2020).
Causation
Causation requires that the patient is able to show that, as a result of the nurse's carelessness, they suffered harm recognised by the court. The patient will have to show on the balance of probabilities, or more likely than not, that the breach of duty caused the injury. This is based on the ‘but for’ test. That is, but for the nurse's carelessness the patient would not have suffered injury.
In Bayliss v Blagg & another (1954) a nurse failed to heed the concerns of the father of a patient whose leg was in plaster. The court found that, although the plaster had been put on with care and skill, there had subsequently been a high degree of negligence covering a protracted period of time when the nurse failed to check for herself or heed the warnings she received of deterioration in the patient's condition. When the plaster was removed the calf muscle came away with it as a result of a severe and prolonged infection in the leg.
Conclusion
Although being sued for negligence is rare in nursing, increasing litigation is a real trend in health care. The law is generally content to allow the profession to set the standard of care, but it reserves the right to reject a standard that does not stand up to logical analysis. The standard of care covers every aspect of the nurse–patient relationship and in each case must be evidence based. Failure to meet that standard and causing harm will result in liability in negligence and an award of damages.