Two Basic Legal Concepts Impacting Certified Nurse-Midwifery Practice
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There are two areas of the law in the United States, Criminal Law and Civil Law. Criminal law applies to legal issues in the public sector, and civil law applies to violations in private matters, typically between individuals. Defendants in civil cases are found liable rather than guilty, and civil penalties involve the payment of money damages, rather than requiring a conviction, jail sentence and criminal record.
Elements of Civil Law
The foundation of civil law is tort. An “unintentional tort”, like negligence, occurs as a result of carelessness or accident and the focus is on injury or harm to others. Acts or omissions in medical/midwifery malpractice are considered to be a specific area within the realm of negligence. In the context of medical malpractice, negligence is defined as failure to use “that degree of skill and care which a reasonable and prudent care provider would use in the same or similar circumstances”. If a CNM/CM is negligent while acting within her duty to provide care to her patients, and wihin her capacity as a midwife, the conduct alleged is CNM/CM malpractice or nurse-midwifery negligence.
Elements of Negligence
In order to demonstrate the requisite proof and receive monetary damages when CNM negligence is alleged, the plaintiff (injured party) must establish all four elements of negligence by a preponderance of the evidence, which is the standard of proof in medical negligence litigation (see Elements of Negligence, posted 7/25/24). This is also known as “burden of proof”. The standard is also referred to in legal documents and case law as “more probable than not” or “within a reasonable degree of nurse-midwifery probability”. A plaintiff in civil litigation always bears the burden of proof.
These statements depict the civil standard as opposed to the standard used in criminal law which is “beyond a reasonable doubt”.
Relevance for Practice
Situation: In provider negligence cases, juries have difficulty with the concept of “inadvertently inflicted harm”, which is a foundational concept within the tort of negligence. While the concept of duty, and failure of duty, is easily grasped, civil negligence is harder for juries in a CNM malpractice case to comprehend. This may be beneficial for CNM defendants in certain cases because it is extremely hard for plaintiffs to prove that someone’s conduct was unreasonable.
Expert witness testimony, from professionals practicing in similar circumstances as the defendant, will be hired; one to testify in support of the midwifery care and the other to testify against the midwifery conduct at issue. The jury must decide which expert’s testimony they find most convincing, and along with all the evidence provided during the trial, they will render their verdict for or against the plaintiff midwife.
Vulnerability: Unhealthy cultures of care on L&D units with unaddressed tensions and miscommunication among providers. Temptations to take shortcuts in the midst of fatigue. Reluctance to face the potential for malpractice.
Expectation/Duty: Self awareness regarding symptoms of burnout. Understand most legal risks in practice and how awareness and vigilance can prevent legal harm and ensure the safest care for your patients.
Remedies/ Protection: Familiarity with ACNM documents, especially standards of practice. Critically assess the culture of care in your workplace and how you may be coping or reacting to stress.
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