Legal Nurse Consulting Program Article on the Emergency Doctrine

In malpractice cases, emergency doctrine is sometimes applied.  It looks at the situation, the urgency and the time of reflection needed to make a professional medical decision.  If the person acts due to the unexpected emergency within a valued norm, then negligence is overlooked in some cases.

The article, “The Emergency Doctrine Revisited” by Thomas A. Moore and Matthew Gaier look at this doctrine and its application.  They state,

“The emergency doctrine is a common law rule premised on the understanding “that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.”

To read the entire article, please click here

Medical error can become less culpable or forgiven in some cases according to the Emergency Doctrine. Please also review our Legal Nurse Consulting Program


This doctrine plays interesting roles in cases if it is permitted to be considered.  To learn more, please review our Legal Nurse Consulting Program and see if it meets your academic and professional goals.


Legal Nurse Consulting Certification Article on Nursing Home Neglect

Good article on nursing home neglect and abuse.   Legal Nurse Consultants can play a pivotal role in these cases

Please review our Legal Nurse Consulting Certification
Please review our Legal Nurse Consulting Certification

The article, Understaffing at Nursing Homes Can Lead to Neglect, by Melanie J. VanOverloop states,

“Nursing homes or assisted living facilities are often a transitional step for the elderly after they stop living independently at home but before they enter a skilled nursing facility. Although the number of nursing homes is booming, oversight of these facilities is very limited, and the regulations governing them vary state by state.”

To read the entire article, please click here

Please also review our Legal Nurse Consulting Certification

The Legal Nurse as Expert Witness

Legal Nurse
Legal Nurse


American Institute Health Care Professionals‘s insight:
Legal Nurse Consultants can play the role of expert witness in many situations.  This video looks at the role of a legal nurse consultant in these situations and what they do.  If you are interested in learning more about legal nursing, then please review the program.

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Legal Nursing and Product Liability

The Legal Nurse: Understanding Product Liability

Legal nurse consultants are working today in cases involving legal nursing related product liability. Many people share a common misconception that the only proof that is required in product liability cases is prove regarding product defect and injury to the plaintiff. This is entirely not the case as the process is a little bit more complicated and specialized than that. In fact, product liability law suits are more expensive and complicated compared to other kinds of lawsuits. This article presents a good review of the issues surrounding product liability claims of negligence. Legal nurses will appreciate this quick review and incorporate the information into their practices.
For instance, in a typical product liability case, industry expert witnesses in the field that is in question have to be consulted for them to help prove that a particular product was indeed defective. They normally do this using a number of ways. It is important to note that there are many ways in which the experts can prove that a fault existed in a product liability law suit. The main ways of proving negligence include; through inaction or negligent acts; through strict liability; breach of warranty and fraud.

Inaction or negligent acts

If a lawsuit alleges that there is product liability negligence, then there are four main elements that have to be proven for the lawsuit to be successful. First and foremost, there must be proof of duty of care owed to the plaintiff by the defendant. For the case to be successful, the duty of care owed to the plaintiff has to have been breached thus resulting in injury to the plaintiff. Finally, a causal link has to exist between the resulting harm and the defendant’s actions which caused breach of duty.
In summary, it is important for the legal nurse  to understand the part of the case where inaction or acts of negligence applies to is basically anything that relates to the product in question before it reaches the market. It is however important to note that for product liability cases, it is very difficult to prove acts of negligence on the part of the defendant whether through a failure to act (omission) or a positive act. The basis or concern therefore of most product liability law suits is strict liability. legal

Strict Liability

As discussed above the only element that has to be proven in product liability lawsuits is strict liability i.e. if the product in question had defect/s that caused harm or injury to the plaintiff. For a product liability lawsuit to be successful in terms of proving strict liability, there needs to be no requirement for element of negligence. Also, there needs to be no proof of fault. This basically means that all a manufacturer has to have done is to make the product within the reach of consumers. By supplying the product/s in question to consumers, this has the direct effect of making available or bringing into question all the faults of all parties involved in manufacturing and distributing to the consumer. The manufacturer therefore bares the responsibilities related to the defect/s.
It therefore follows that manufactures should bare the greatest responsibility because they have the greatest control over their products. Manufactures have however argued against this strict liability clause on negligence in product liability law suits. For instance, manufacturers have argued that they should not be held accountable in cases where information came up after the product’s in question manufacture.


Deceit is also an important factor among what must be proven for there to be negligence in product liability law suits. In the case of deceit, the manufacture or the seller has to have communicated truthful information to the consumer about products that are misleading or false for a case to be ruled in favor of the manufacturer/seller. If by any means a manufacturer communicates inaccurate information in order to make sure that a consumer doesn’t find harm in a certain product, then by all means, the responsibility will fall on the manufacturer. If on the other hand the consumer still goes ahead and ignores the warnings of the manufacturer and goes ahead to suffer injury as a result, then it is by no means the responsibility of the manufacturer.

Breach of Warranty

A product liability case also has to prove breach of warranty to stand trial and sentencing. If a product liability case is based on any form of breach of warranty, then the plaintiff has to prove beyond reasonable doubt that the defendant was responsible for causing the injury by asserting that the product/s in question was harmless or free of any defects yet the defendant failed to confirm/ensure that the products were indeed free of defects.
This kind of a claim is unique and different from claims such as strict liability or negligent acts because the claim is directly related to broking a contractual promise and not inaccurate information like in the case of deceit. It is important to note that in the case of breach of warranty, a promise has to be made either implicitly or explicitly as part of the contract. When a certain promise regarding a product is implied, it has to relate either to the failure to ensure that a certain product is capable of functioning, or that that product will be able to work or serve a specific purpose.
In summary, to be able to prove negligence in a product liability case, there has to be evidence that a manufacturer/supplier holds the responsibility of selling a safe or harmless product. Proving this is easy because all businesses that are tasked with the responsibility of manufacturing and distributing consumer goods have to make sure that they provide safe goods that have warnings in case the goods pose any danger. Also, for a product liability case to be successful, there has to be negligence prove i.e. the seller violating the responsibility to offer safe/harmless products up to the point the consumer gets the goods. This basically means that there has to be proof of a breach of warranty. Lastly a product liability case based on negligence has to prove that the harm or injury was directly caused by the product in question and not any other factors such as sickness. By proving the existence of all the above factors, a product liability law suit will stand a chance. Legal nurse consultants are providing excellent consultations in product liability cases as they relate to medical/health care products. For those registered nurses interesting in learning more about this practice specialty, click here: legal nurse consulting program.

Why Nurses Need Malpractice Insurance

The Legal Nurse

The legal nurse provides information for legal nurse consultants as well as registered nurses in areas of nursing malpractice, as well as other legal issues.
By: Janet Kress
Being a nurse is one of the most rewarding jobs a person can have. A nurse can save a person’s life, help someone recover from a surgery or even help a sick child. There are many nursing jobs available, the pay is amazing and the benefits are very good. However, a nurse can be held liable for anything that happens while they are on their shift. This is why nurses need malpractice insurance. If the time occurs when a nurse is being named in a lawsuit, even if it is unfounded, they will have to deal with a plethora of legal fees, worry about a ruined reputation or fear losing their job. This can all be dealt with if the person has nursing malpractice insurance.
The cost of having this insurance is negligible when one considers the amount of money a lawsuit can cost. Most people think that their employer will be covering any malpractice claims while they are on the job. However, most nurses do not realize that their employer’s insurance has the minimal amount of coverage for them. Sometimes their employer’s insurance might not even cover them in a malpractice lawsuit. This is because their insurance plans are tailored to their specific needs. It doesn’t make sense for them to cover their employees if they will not be held liable. Typically if a nurse is covered by their insurance, it will be for a miniscule amount. It is always important to know how much an employer’s insurance will cover and even if it seems good, there will be some drawbacks.
Even if an employer’s coverage is satisfactory, there is another big issue that could occur. They can decide to sue a nurse for all of the money they were held liable for if the nurse was indeed negligent. This greatly varies from place to place and some might provide adequate insurance for their staff. However, if the place of work is having financial issues and goes bankrupt, they might not have the means to pay for the nurse’s insurance anymore. This is why it is so important for a nurse to have their own personal malpractice insurance.
Circumstances can change greatly if a person has a hearing with the Board of Nursing. This will often happen when a nurse’s license is at risk of being revoked. This can be devastating because their livelihood could be at stake. Policies often have License Protection which will cover all of the costs associated with defending a nurse’s license to the board.
In the past, many nurses did not get insurance because it would actually extend lawsuits against them. Before nurses were paid the wages they are now, lawyers would typically drop their names from lawsuits. They knew that they did not have the funds to pay any settlements. Unfortunately, this has been spread around the nursing industry and people believe it is better to not have insurance for themselves. Lawyers have recently changed their mindset and will try to get any money a nurse may have. If found guilty, a person can lose any money in their savings accounts, be forced to sell their homes or even claim bankruptcy.
When getting insurance, a person needs to understand their policy completely. Knowing exactly what is covered will ensure that any negligence claims are handled hassle free. The most common coverage will include:
Liability: This will cover any charges, up to a certain amount, accrued by a lawsuit stemming from any medical incidents that might occur.
License Protection: When a lawsuit is brought against an individual, they might have to face the board of nursing. This will cover any costs, up to the limit in the policy, defending a nurse to the board.
Personal Injury Protection: This will cover any costs from claims of slander, libel, assault or even battery.
Although these are the basic coverage options available, there may be additional options that each insurance agency provides. Nurses, no matter how good they are, can all benefit from covering themselves with malpractice insurance. It is important to choose a policy that allows the holder to choose their own lawyers and does not cap the hourly rate that they are allowed to be paid. This will ensure that a nurse can find and afford the best possible attorney. Even if a lawsuit is dropped, a nurse without insurance would have to pay their lawyer’s fees.
Would you like more information on legal nurse consultant training? Access here.

Legal Nurses Can Protect You From Insurance Giants

Legal Nurses Can Protect Your Rights

Legal Nurses can protect your rights from big insurance companies
Legal Nurses can protect your rights from big insurance companies
Is your insurance company permitted to have access to your medical records? Do you know if they are reviewing the intimate details of your medical history and care? The answer to this is yes and in many cases it takes a legal nurse to help you.
Federal law allows this. This occurs because hospitals that receive medicare reimbursements must participate in a Peer Review Organization System. This system provides for quality of care review to insure patients are receiving appropriate care. Hospitals must contract with a peer review organization. The peer review organization then selects patient care cases and does review of care via docuementation in the medical record. The review organization in particular assess the reasonableness of the care provided as well as the adequacy of care received. While these organizations are not permitted to release your medical records to any third parties, still their employees do have access to your medical information.
Consumers should be made aware of this fact. Often, the patient has no idea who may have access to their private medical docuementation. If you have questions about this, you can seek the consultation of a registered legal nurse who can provide you with more information

Elements of Health Care Malpractice

The Legal Nurse

court room for trialMedical or Health Care malpractice can be defined as a professional negligence by a medical professional i.e. a doctor, a surgeon, a nurse or any other healthcare professionals that results in emotional or physical harm to a patient. Medical malpractices come in many forms. For instance, a medical malpractice can be as a result of an act or an omission of a necessary act or care that eventually harms a patient.

 The four elements of medical malpractice

There are four main elements that have to be proven in any given medical malpractice case. These elements include; duty, breach of duty, damage and cause. These elements have to be assessed for a medical malpractice case to be determined.
1. Duty
Duty as the name suggests refers to the doctor patient, or health care provider relationship whereby a duty exists for the doctor to treat a patient according to the set professional code of conduct and practice. For a medical malpractice case to be determined, there must have been a given duty owed (to a patient) by a given healthcare practitioner i.e. doctor, nurse, pharmacist e.t.c charged with the care of a patient. The doctor-patient relationship is a common example of a situation where that duty would exist. A good example of a malpractice based solely under duty is when there is delayed treatment which is treatment that over four hours late. In such a case the duty owed is breached by a responsible party. It is however important to note that a medical malpractice case has to prove that all the four elements exist for it to qualify as a legal medical malpractice case.

 2. Breach of duty

Breach of duty in medical malpractice occurs in cases where a healthcare professional who has been charged with the responsibility/duty of care for a given patient fails in his or her duty by failing to exercise a certain acceptable degree of care or a given medical skill that any other healthcare professional practiseing in the same capacity or specialty would be able to give or address in equal circumstances. Such medical malpractices considered when an expert or experts in similar fields confirm that the professional should have been able to adhere to the set standard of care as required. A medical malpractice example based on breach of duty may include a practitioner i.e. a doctor failing to prescribe standard medication that may have serious health implications on a patient. A medical malpractice case has to proof that a practitioner breached their duty for compensation among the other elements for the case to qualify.

 3. Damage

In cases of medical malpractice damage, the patient has to have suffered either physical or emotional injury while under the care of a given healthcare professional/practitioner. This is among the most common element that dominates medical malpractice cases. For instance a medical practitioner i.e. a doctor may have operated a patient without following the set code/standards which eventually results in physical injury. A good example would be to operate on a patient and causing more new injuries that were not there initially or aggravation an existing injury. A medical malpractice case has to prove that the medical practitioner caused the new damage or aggravated as well as proof the existence of the elements for a case to qualify for hearing which can eventually lead to a patient wining the medical malpractice case and eventually getting compensated.

 4. Cause

The last element of medical malpractice is cause. For a medical malpractice legal case, there has to be concrete/solid proof that a given medical practitioner/professional directly caused a patient injury. Like all the above elements, the cause of injury must be as a result of all the above elements i.e. a breach of duty, duty and damage causing injury to a patient. Such medical malpractice cases are also common for instance when a doctor or a pharmacist prescribes the wrong medicine to a patient and then the patient takes the prescribed medicines and falls ill. The ’cause’ has to be proved in a medical malpractice case.
In conclusion, a successful medical malpractice lawsuit has to prove the existence of all four elements mentioned above four elements. If a healthcare practitioner being sued is able to prove that none of the elements exists, then the medical malpractice case is dropped.
Are you interested in becoming a Legal Nurse? If you are a registered nurse than you may qualify to enter a legal nurse consulting program. Legal nurse consulting is a highly rewarding career specialty for nurses and continues to be in high demand in our country. If you would like to learn more about a legal nurse courses and programs, click here.

Legal Nurse and HIPPA

Legal Nurse Consulting Corner

HIPPA Privacy Rules In Simple Terms

medical malpractice book and stethoscope for legal nurseHIPPA stands for Health Insurance Portability and Accountability Act. This act, which was passed into United States law in the year 1996 under the mandate of President Bill Clinton, is intended to do several things at the same time. HIPPA is a very complex act that can seem inaccessible and difficult to understand to patients, entities and even some physicians. HIPPA privacy rules for health care are simply, when it comes down to it, a federal law used to protect patients from their information being used or released without their consent to other entities. This article discusses issues related to HIPPA as a review for practicing legal nurse consultants.

What Is Covered Under HIPPA

All your medical charts, your medical history, any conversation you might have with a medical professional, your billing information and any information on your insurance company’s computer systems are all protected by HIPPA from being shared to anyone unless it is necessary to do so.

When Is It Necessary?

When it comes to your care, if you are ever in an emergency, HIPPA allows for your medical history and information to be shared. Your information can be shared with your family or other caretakers, but you can stop this by putting a request in writing. Health professional are also allow it to be shared for billing, to protect the public’s health (if they think you might have an infectious or highly contagious disease, like the virus that causes SARS) or for the police to make reports on wounds. Doctors are not allowed by law to share any of this information with your employer and the information cannot be given to third parties that would use it for marketing or advertising.

Who Is Governed by HIPPA?

Not all health organizations that you are involved it will answer to HIPPA. Doctors, hospitals and insurance companies will, but if any other companies have your information like the place where you purchased life insurance, your employer, your school or even state agents, they do not have to abide by HIPPA.

What Are You Entitled To?

You can see your health records whenever you want, but you must submit a written request to get this done. You must say how you are going to use this information and who is going to see it. You may be charged for copies of your records.

What is a HIPPA form?

Health care providers need to inform patients how their information will be used and could possibly be shared. Health care providers must also ensure that the patient is always aware of his or her rights. This would usually be done in a HIPPA form. This is a document written in simple and straightforward language and it should ensure that the individual knows of his or her right to complain about any information being shared regarding medical records.

What Constitutes As A HIPPA Violation?

You might be accidentally violating HIPPA if you show your own medical records to a friend after having obtained them. Doctors and health insurance companies might be committing one if they are discussing your condition verbally or in a written form without your consent. A good indication of a HIPPA violation is if your medical records have been accessed too many times – this can happen due to curiosity and patients with very rare conditions are particularly vulnerable to this type of HIPPA violation.
Since its start, The Health Insurance Portability and Accountability Act (HIPPA) has been a rather controversial law. Although many patients like the protection it provides, it can be difficult for physicians to make the right judgment calls when they do not have all the information available to make a difficult decision. There can be a court summons of someone’s medical records, but this is a complicated and very long process that hinders how effectively doctors can do their job.
It has also affected some medical researches because they are no longer allowed to look at statistical data on medical charts to provide a historical sample of significance in their studies. This means that doing a historical study of a particular type of disorder or disease could be near impossible.
Additionally, HIPPA is very complicated and it can be quite difficult to follow. That is why many people in the health industry need to have extensive training when it comes to it. Many legal nurses are well versed in HIPPA and provide consultations to health care organizations regarding the many issues involved in the Act. They also provide staff education and training seminars related to HIPPA issues. To learn more about legal nurse consulting, access here.

What is a Living Will?

Legal Nurse Consultation

gavel in a court room and a stethoscopeOne of the most difficult things that a family member can go through is having to make a important medical decision regarding a loved one who is unable to speak for himself or herself. The stress of making such a decision in a hospital or nursing home can be overwhelming to those making the decision. Additionally, if there is any disagreement within the family about what course of medical action to take regarding the loved one, the situation can only become worse. The living will can help relieve some of the burden in difficult times when a difficult medical decision is required.
The living will is a type of advanced health care directive used to instruct medical personnel about what measures to take on a patient who is incapacitated and unable to make informed decisions about his or her healthcare. Two other forms of advanced health care directives include a power of attorney and a health care proxy. The various directive forms work alone or in tandem to provide instruction to doctors and nurses. It is important not to confuse a living will with a living trust, which is a form of estate planning that distributes a person’s assets after his or her death. This information is brought to you by our legal nurse consultation post on our blog.
It is essential to have a living will because it informs medical personnel and your family of what kind of medical treatment you want in case you are unable to speak for yourself. This can include instructions for what you want to happen in the event of an accident that leaves you in a permanent vegetative state or instructions how to handle your medical care if you have a terminal illness which progresses to the point of you being incapacitated. A living will should be written by a lawyer to ensure that it is legal and will serve its purpose if the need arises.

Understanding the Living Will

A living will generally describes the types of treatment you desire in the event you become incapacitated. For example, if you are in a vegetative state after an accident or other medical event, a living will can instruct your doctors whether or not to keep you alive through the use of ventilators, feeding tubes or other medical means. Other treatments often described in a living will include whether to administer pain relief, perform cardiopulmonary resuscitation, or provide hydration.
The living will only becomes effective if a doctor certifies you as being terminally ill or otherwise permanently incapacitated. For example, if you have a heart attack and are unconscious laying in a hospital, but expected to recover and regain consciousness, your living will does not come into effect. You will still receive life saving medical treatment even though your living will stipulates that you do not want life prolonging medical procedures. That is an important distinction and essential to understand. A living will only comes into effect if you are terminally ill, in a permanent vegetative state or permanently mentally incapacitated.
If the situation ever arises where you are incapacitated and unable to speak for yourself, but your medical condition is not terminal or permanent, you should use a health care power of attorney or a health care proxy. Either one of these documents allow you to provide a third party, usually a family member or close friend, the legal authority to make health care decisions on your behalf in the event you are unable to express your wishes.
Being proactive and having both a health care proxy and the living will is both a responsible and loving thing to do. It removes the burden of making extremely difficult decisions from your family members if and when the time arrives. You do not need to be terminally ill to have the living will.

Creating a Living Will

To set up the living will and health care power of attorney, consult a lawyer who specializes in these documents in the state where you live. But before you consult with a lawyer, talk to your doctor about the different scenarios when a living will might be needed and what your options are for each scenario. It’s important to make an informed decision now, so your wishes are known in the event the living will becomes effective. Each state has slightly different variations in terminology and living will laws so a lawyer’s help is crucial. Additionally, once your living will is written, keep it in a safe place. Make sure your doctor and the person you select to have health care power of attorney know of its existence. Your living will does no good to you if nobody knows that it has been written. For more information on health care directives, you may want to consult a legal nurse consultant.

American College of Legal Nurse Consulting

a legal gavel, behind is the american flagThank you for visiting our AIHCP web blog. This category of the blog focuses on the specialty practice of Legal Nurse Consulting. Our blog provides our visitors and professional members and students an ever expanding platform for related articles, information, discussions, event announcements and much more. We invite your participation by posting comments, information, sharing and authoring for our blog. Please visit us often and be sure to book mark us!