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Posted on September 28th, 2012, by

It proves beyond a doubt that the professional competence of health care professionals is of the utmost importance, especially today, when the progress of technologies and medical science opens huge perspectives for the efficient health care services, which can save human lives even in the most severe cases. However, in spite of the technological and scientific progress, the problem of professional negligence and malpractice among nurses still persists. In this respect, it is important to underline the fact that it is not only the problem of nurses proper, but it is rather a complex problem which involves patient-nurse relationships and health care professionals involved in the treatment of patients. Moreover, it is hardly possible to underestimate the significance of legislators who can establish norms of professional conduct and prevent the risk of malpractice or negligence from the part of health care professionals. In such a way, the problem of the efficient professional treatment is a complex problem which involves efforts of health care professionals, legislators as well as patients. As long as either party ignores the problem of professional malpractice or negligence, this problem will persist.

In actuality, the problem of negligence and malpractice becomes relatively rare compared to the past several decades. This is why it is possible to speak about positive trends in the contemporary health care system at both national and state level. Nevertheless, the cases of nurse malpractice and negligence still occur. In this respect, it is possible to refer to the case of Tabitha N.S. vs. Zimmerman, 2008 – Ohio 1639. In fact, it was a serious case which led to the lethal outcome. To put it more precisely, this was a wrongful death and survival action alleging medical malpractice and negligence against the hospital, physician and OB nurses in the hospital. At this point, it is worth mentioning the fact that, in this specific case as well as in many others, it is possible to allege one health care professional the only responsible for the malpractice or negligence, because this problem, as a rule, involves several health care professionals involved in the treatment of the patient. In fact, the modern health care system implies that the involvement of several specialists is essential for the provision of patients with health care services of the high quality and, what is more, such a system ensures that health care professionals can control the treatment of patient more efficiently since, if one of the health care professionals can make an error, his or her colleagues can prevent the risk of such an error and, therefore, ensure the efficient health care services being provided for the patient (Limentani, 1999).

Nevertheless, in this case, this system failed to work properly.

In actuality, the Tabitha N.S. vs. Zimmerman case was very important because it involved the professional malpractice and negligence from the part of health care professionals that resulted in the death of the patient. In fact, the problem rose because of the necessity of the adequate assessment of actions of the personnel of the hospital. Obviously, the court needed the testimony of a health care professional, which could provide adequate assessment of the practices or malpractices of the hospital’s professionals who were accused of malpractice and negligence in the treatment of their patients.

In this case the appellate court found the trial court did not abuse its discretion by allowing a Nurse Midwife and former obstetrical nurse to testify on the standard of care for OB nurses as to alleged negligence of the hospital nurses in support of the claim against the hospital on the theory of respondeat superior in a medical malpractice action. The nurse expert witness of the plaintiff was called as a medical expert. The nurse expert testified that she graduated from the nursing school in 1976, and went on in specialized obstetrical nursing. She also holds a master degree in nursing. She worked as a registered nurse in labor and delivery until 1983, when she went to midwifery school. She then took and passed the exam required for the certification as a nurse midwife. Since that time, she has worked as a registered nurse and certified nurse midwife. At the time of trial, she was working as a nurse midwife at a medical practice in Grand Rapids, Michigan. She further testified that she is also certified as a family nurse practitioner and works part-time at a medical office. Furthermore, she is certified in the fetal monitoring and is a member of the faculty at the College of Nursing at Grand Valley State University, where she teaches obstetrical nursing. She testified that as a midwife nurse she monitors women prenatally, attends labor and delivery and provides care after childbirth. She further testified that she has cared for and evaluated women in pre-term and labor and has performed vaginal examinations on pregnant women in order to assess pre-term labor. She also has experience in assessing whether a woman has contractions, as well as in determining the position of a baby prior to delivery.

In such a way, the choice of a professional, being very important, was apparently correct because the nurse testifying in the trial, had an extensive professional experience and was certified to be able to conduct her professional duties and tasks properly. Therefore, she was able to assess or, at least, explain to the court the extent to which actions of the hospital’s personnel were adequate or inadequate and whether they can be qualified as malpractice and negligence or not. At this point, it should be said that the court’s decision heavily relied on the testimony of this nurse because the court staff was not qualified in the field of medicine to assess adequately the actions of health professionals accused of negligence and malpractice. Therefore, they needed the professional testimony to use it as a basis for legal action in relation to the accused health care professionals. In such a way, it is obvious that the interaction between judicial system, which work is based on existing legal acts and norms, is closely intertwined with the work of health care professionals. Moreover, such interaction is essential to reveal the truth about such cases as Tabitha N.S. vs. Zimmerman.

However, the defense objected to the testimony. But the efforts of the defense proved to be fruitless because the jury returned the verdict against the defense. A judgment awarding on the survival claim economic damages of $390,000 and non-economic damages of $500,000 and, on the wrongful death claim, the jury awarded compensatory damages of $2,000,000 (Tabitha N.S. vs. Zimmerman, 2008). On appeal, the appellate court noted that the expert witness need only aid the trier of fact in the search for the truth and need not be the best witness on the subject. The court noted the nurse midwife’s testimony clearly set forth many years of experience in this area of obstetrical nursing, including labor and delivery. Although the expert witness no longer working in the hospital setting, her experience in the field of obstetrical nursing was ongoing at the time of trial. Hence, the appellate court found the nurse expert witness demonstrated that she had some degree of specialized knowledge, skill, experience, training and education in the field in which she sought to render an expert opinion.

In such a way, the proper choice of the expert witness allowed the court to arrive to the adequate conclusion in the legal assessment of the actions of the hospital’s personnel in the case of Tabitha N.S. vs. Zimmerman, which were qualified as malpractice and negligence. In the result, the jury awarded the aforementioned compensations, while professionals involved in the malpractice and negligence were deprived of their licenses and could not carry on their practices in the field of health care.

Thus, taking into account all above mentioned, it is possible to conclude that the problem of malpractice and negligence in health care services is of the paramount importance. At the same time, the prevention of malpractice and professional negligence in this field should be based on the efficient interaction between health care professional, judicial system, legislators and patients.  In such a way, it is possible to control and maintain existing legal norms and prevent malpractice and negligence.

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