Three types of nursing malpractice

As a Houston, Texas medical malpractice lawyer, I have represented patients in a lot of cases where nursing care provided in a hospital caused serious injuries.

Who is responsible for nursing malpractice?

In Texas, nurses are almost always employed by hospitals. The standard of care requires hospitals to make sure that its nurses are competent to provide the care that they are assigned to handle. This includes an obligation to provide ongoing training to nurses, as well as annual assessments and documentation of each nurse’s competencies.

Hospitals sometimes turn to staffing agencies when they do not have enough nurses to fill all of the necessary slots. In these situations, the standard of care is not relaxed. Both the staffing agency and hospital must do their due diligence to ensure that only proven, competent nurses provide patient care.

When nursing care is at issue in a medical malpractice lawsuit, the defense, and typically any settlement or judgment in favor of the plaintiff, is provided by the hospital and/or staffing agency.

By the way, this contrasts with physicians. Billboards and other advertising all over Houston certainly leave the public with the impression that doctors are hospital employees. Under the Texas corporate practice of medicine doctrine, though, doctors are independent contractors for whom hospitals have no liability or responsibility whatsoever (except in rare, almost unimaginable, situations).

What is nursing malpractice?

Registered nurses and licensed vocational nurses are an important part of the healthcare team. While doctors are typically in and out of rooms a few minutes each day, the nursing staff provides ongoing 24/7 care.

In litigation, I always find it interesting to watch and listen to hospital lawyers and expert witnesses argue that nurses are basically unskilled wallflowers. In medical malpractice lawsuits, the defense strategy uniformly focuses on arguing that nurses cannot do anything independent of a physician order. While I find this demeaning to the nursing profession, it is also simply untrue.

Considering that nurses are highly trained and are the healthcare providers who most often see patients, they have an important role in observing and assessing patients, providing bedside care, and informing the medical staff of any concerning changes in status.

In my experience, there are three general types of nursing malpractice.

The first type of nursing malpractice involves a nurse not informing a physician when there is a change in the patient’s condition or status. I have handled several cases involving post-surgical patients who became delirious (behaving in an unusual way) and even violent or combative. These are signs of an altered mental status and need to be communicated to a doctor immediately. Altered mental status is known to be one of the earliest signs of a change in neurologic status, or a problem with the patient’s nervous system.

When a doctor does not know about these changes, of course, it is impossible to implement a medical treatment. Sometimes the delay of nursing notification leads to a patient’s life-changing injury or death.

This is what happened to a healthy man who had a laminectomy surgery at a Houston-area hospital. For the first day after the surgery, he was fine, but then the nurses noticed that his foot reflexes were weak and he was not urinating normally. For some reason, they waited many, many hours before notifying a doctor. Our medical expert determined that he was experiencing a blood clot that was interfering with the function of the spinal cord. For the rest of his life, he will have no sensation from the waist down and will be both bowel and bladder incontinence. This would have been avoidable if the nurses had told the surgeon, who would likely have taken them back to surgery and fix the problem.

The second type of nursing malpractice happens when a nurse fails to advocate for patient care. The Texas Board of Nursing and the standard of care requires nurses to advocate for the care that their patients need. Advocacy involves assessing a patient, forming a nursing diagnosis, and then making recommendations to the medical staff for orders. In the unusual situation in which a physician resists a nursing recommendation, advocacy may require the nurse to take the issue up the chain of command. Advocacy is an important part of the nurse-patient relationship and is entirely focused on patient safety.

The final type of nursing malpractice that I frequently see is an injury caused by nursing care itself.

This brings to mind the example of a case involving a woman who had a knee replacement surgery. She was taken from the operating room to the recovery room in stable condition. While she was in the recovery room, she told the nursing staff that her stomach was hurting. They noticed that her abdomen was expanding and her pain was getting worse. Someone remarked that it look like she swallowed a whole pumpkin and her abdomen was growing bigger minute by minute.

The recovery room nurses notified the surgeon, who returned her to the operating room for an exploratory surgery. As soon as he made a long midline incision, a huge amount of air gushed out of the patient’s abdominal area. There was no problem with the surgery itself, but the surgeon discovered that a nurse had connected a post-operative drain in the patient’s knee to an oxygen outlet, rather than to the suction outlet. As a result, high-pressure oxygen was being forced up through the patient’s thigh and into her abdomen.

Just last week, I met with another family whose loved one was still hospitalized in a Cypress, Texas hospital. The patient had a blood pressure cuff on his arm, which was connected to an electronic monitoring system. When a nurse came to his room to draw blood, she decided to apply a tourniquet (the piece of rubber compressed and pulled around the arm to make it easier to find a blood vessel) under the blood pressure cuff. When the nurse completed the blood draw, she forgot to remove the tourniquet. Later, family members called for a nurse when they noticed his arm and hand turning bluish. The tourniquet had cut off blood circulation and left a bad scar all the way around his arm.

We are here to help

If you or a loved one has been seriously injured as a result of nursing or medical malpractice, call the experienced attorneys at Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case.


Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator and devotes his law practice to representing patients and family members in medical malpractice and wrongful death cases. He is not intimidated or afraid to sue even the largest hospitals when their care caused harm to his clients.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.