Legal Briefs: Ordinary Negligence vs Medical Malpractice

Clinical Scenario

A Nevada Supreme Court has ruled that jurors don’t need to hear from a medical expert to decide whether a nurse was negligent when she injected a patient with morphine intended for a different patient. The patient, a nursing home resident, was given 120 mg of morphine that was meant for another patient. As soon as the nurse realized her mistake, she reported it to the supervising physician who ordered that the patient be given naloxone to counteract the effects of the morphine.

The patient seemed alert after the administration of naloxone, but the following morning she was found unresponsive by her daughter who was visiting. The patient was transported to the hospital where she died 3 days later. Morphine intoxication was listed as the cause of death. Her daughter sued the nursing home, charging it with negligent hiring and retention of the nurse who committed medical malpractice.

The Court Case

Nevada law requires plaintiffs in medical malpractice cases to provide an affidavit from a medical expert stating that the defendant breached the standard of care. Without such an affidavit, a medical malpractice case will fail. The plaintiffs failed to provide an expert medical affidavit thus the defendant nursing home moved for the case to be dismissed. The trial court dismissed the case and the plaintiffs appealed.

The case was heard by the Nevada Supreme Court, which held that jurors have the capacity to understand that administering the wrong medication to a patient was negligent.

“The mistaken administration of another patient’s morphine in this case constitutes ordinary negligence that a lay juror could assess without expert testimony, and a claim predicated solely upon such ordinary negligence is not subject to (a) medical expert affidavit,” Justice Abbi Silver wrote.

Bottom Line

In other words, if the negligence is so obvious that anyone would recognize it (like removing the wrong body part, or operating on the wrong organ), it constitutes ordinary negligence rather than medical malpractice which would require an expert to explain the standard to the jury.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.