Elements of Negligence

To be negligent is to act or fail to act in a way that causes injury to another person. Accidents happen, but what separates an unintentional accident from a negligent act is the standard of care. By neglecting the applicable and proper standard of care pertaining to a particular incident, an individual may be found liable for any resulting injuries. Negligence is a legal theory in civil law. The concept of negligence is closely related to determination of standard of care. Medical malpractice is considered a specific entity within the domain of negligence. The individual elements that must be proven by a plaintiff in a negligence case are: Duty, Breach of Duty, Causation, and Damages.

1) Duty

The outcomes of most negligence cases depend on whether the defendant owed a duty to the plaintiff. Duty is, also, a legal concept that recognizes a relationship between a plaintiff and defendant. As a result of this relationship, the defendant is obliged to act in a certain manner toward the plaintiff. A judge, rather than a jury, usually determines whether a defendant owed a duty of care to the plaintiff. In CNM practice, nurse-midwives have an unequivocal, independent duty to their patients. The duty of a nurse-midwife is not dependent on, or attached to, the conduct of co-workers, such as registered nurses, medical assistants, obstetricians, or other nurse-midwives. The duty of an individual nurse-midwife is to provide reasonable and prudent (aka ordinary/typical) nurse-midwifery care to patients.

2) Breach of Duty

A defendant (midwife) is liable for negligence when he/she breaches the duty that is owed to the plaintiff (patient). A defendant breaches her duty by failing to exercise reasonable care when fulfilling this duty. Unlike the question of whether duty exists, the issue is whether the duty of care has been breached. This is decided by a jury as a question of fact. To determine whether a breach of duty has occurred in a malpractice case will be dependent on the testimony of expert witnesses in the same field of practice as the defendant; in this case, the nurse-midwife.

Although some courts have allowed it in the past, more recent judicial holdings have emphasized that registered nurses, obstetricians, or other maternity care providers are not legally qualified to testify to the standard of care of nurse-midwives, even though they may have “familiarity with nurse-midwifery practice”.

3) Proximate Cause

Proximate cause is the scope of a defendant’s responsibility in a negligence case. To prove negligence, a defendant nurse-midwife is only responsible for the injuries that she could have foreseen through her actions. The parents of a brain-injured baby could prove proximate causation by showing that the nurse-midwife should have anticipated/known, by her conduct, that fetal harm could result from failing to closely monitor, recognize, and react appropriately to a non-reassuring electronic fetal heart tracing.

Conversely, if the harm to the baby can be proved as something remote to the CNM’s act or failure to act, then the plaintiff is less likely to be able to prove this element of negligence. For instance, if there is evidence that the baby appeared normal at birth, despite an obvious tracing abnormality, but weeks later the baby was shaken at home. In this scenario, the plaintiff must prove proximate causation for the baby’s injuries, allegedly caused by the nurse-midwife. Although the baby’s abnormal tracing and a diagnosis of brain injury may be within the scope of the harm that the nurse-midwife risked by her negligent conduct, she could not have foreseen (and had no proximate connection to) events that actually injured the baby weeks later. In these circumstances, the plaintiffs would not be able to prove proximate causation due to: 1.) a diagnosis of shaken baby syndrome and 2.) facts that would not connect her negligent conduct to that type of injury.

According to the traditional rules in negligence cases, a plaintiff must prove that the actions of the defendant actually caused the plaintiff’s injury. This is referred to as “but for” causation. But for the defendant’s actions, the plaintiff’s injury would not have occurred. A baby suffering a brain injury due to the failure of the nurse-midwife to recognize and react to signs of fetal distress may prove this element.

4) Damages

A plaintiff in a negligence case must prove a legally recognizable harm, most often in the form of physical injury to person or property. It is not sufficient that a defendant failed to use reasonable and prudent care. The failure to exercise reasonable care must result in quantifiable damage to a person whom the defendant owed a duty of care. Damages are also translated into economic harm as a result of the defendant’s negligence. An example of money damages would be the expenses past, present, and future to care for a baby who was negligently harmed during childbirth.

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