Today's gerontological nurses have identified many nontraditional forms of care that may enhance the daily lives of their patients. Examples of nontraditional care include patient interaction with pets, listening to music, reminiscing, and use of massage therapy. While all of these interventions are designed to provide opportunities for patient interaction, they may not always be safe activities for everyone. One question that nurses may want to ask is, "What is the potential legal liability of the health care facility or practitioner if an injury occurs during one of these activities?"
The primary legal risk that should concern health care facilities and practitioners when implementing such therapies is the potential for patients to claim negligence if an injury occurs. The elements of negligence include: duty, breach of duty, causation, and injury (Northrop, 1987).
If a patient suffers an injury, the claimant must establish that the person or facility being sued had a duty to provide care for the patient. In the case of a long-term care facility or a nurse providing care for residents of the facility, the demonstration of a duty to those patients is generally easy to prove. Establishing and proving that the health care provider breached his or her duty or that the breach of duty caused the asserted harm may be more difficult for the claimant to do.
A breach of duty may occur when the nurse fails to provide protections that a reasonable nurse would have provided in a similar situation, or when the nurse acts in an unreasonable manner. Examples of care that may justify breach of duty include failing to have pets properly immunized, allowing pets to wander freely even in areas where they could trip a patient, and massaging body areas that have been traumatized or are subject to chronic inflammatory injuries.
The element most difficult to prove is usually causation. In order to prove causation, the claimant must demonstrate that the failure to carry out the duty properly caused the injury (ie, the patient's arthritic joint became painful because of the massage therapy) and did not result from other factors that preceded the inflammatory process. The difficulty in proving this element will vary depending upon the specific facts of the case. It is important to note that injury in a negligence case is not limited to physical injury but may include psychological injury or financial loss.
While nontraditional therapies may enhance the quality of daily life for the elderly patient, the supervising nurse must not assume that these activities are free from potential liability. Even with the best of intentions, the nurse retains accountability for the patient's safety.
- Northrop, CE., Kelly, M.A. Legal Issues in Nursing. St. Louis: CV. Mosby Co, 1987.