When you are named in a lawsuit alleging professional negligence, a requirement calls for a nurse expert.

The nurse expert is called for both parties (plaintiff and defendant) to establish whether the applicable standard of care in the situation was met or was breached.

The requirement of a nurse expert witness to establish whether the standard of care is met is based on the fact that an allegation of professional nursing negligence involves nursing judgment in the care of a particular patient.

The overall standard of care in a professional negligence case against a nurse is what ordinary, reasonable and prudent nurses would have done in the same or similar circumstances.

The establishment of what you as a wound care nurse would have done in a particular case requires, as the court below stated, “highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert advice.”

What exactly is ordinary negligence?

Ordinary negligence is defined as the failure of a lawsuit defendant to act as a reasonably prudent person in the same or similar circumstances. It is the failure to exercise ordinary care, which means whether the defendant acted in accordance with how most people would act in the same or similar circumstances.

In the 2017 case of Ziglar v. St. Joseph’s/Candler Health System, Inc., the appellate court determined if the trial court’s decision about the applicable standard of care was correct.

Facts of the case and trial court decision

The patient, who was unconscious when admitted to the hospital, developed a stage IV sacral pressure injury while in the hospital.

He filed a lawsuit against the hospital, alleging the hospital, nurses and support staff failed to “properly assess and treat the ulcer and failed to appropriately advocate for his care while he was unconscious.”

The complaint was accompanied by an affidavit of the patient’s nurse expert witness. As required by state law, the affidavit “shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

The hospital alleged the affidavit did not meet requirements for such an affidavit because:

  • It did not allege at least one negligent act
  • Failed to allege facts that would serve as a basis for the claim
  • The nurse expert was not qualified to testify as to the standard of care of unidentified “support staff”

The trial court agreed with the hospital and dismissed the complaint for failure to file a “sufficient” expert affidavit.

The patient appealed the trial court’s decision.

Appellate court rules ordinary negligence

The appeals court opinion expressed the same concerns about the affidavit, saying it did not meet the requirements to be used as an affidavit supporting a professional negligence claim against the hospital.

The patient argued that even though the affidavit might be deficient, he did state a claim of ordinary negligence (this case refers to it as “simple negligence”) against the hospital.

The appeals court pointed out the patient’s two basic allegations against the hospital require “highly specialized expert knowledge.”

The allegations included that:

  • Nurses and support staff failed to properly treat and assess his wounds.
  • The hospital failed to ensure he received the required level of monitoring and treatment as an unconscious patient, which would logically include detecting the development of pressure injuries caused by a prolonged bed stay.

As a result, the failure to perform these duties require “medical” (nursing) judgment and are not within the purview of ordinary lay people.

The appellate court upheld the dismissal of the patient’s complaint, holding that it was grounded in a professional negligence claim, not an ordinary negligence claim and, therefore, could not be sustained. 

Considerations for your practice

The trial and appellate court decisions do not stand for the proposition that this plaintiff has no case against the hospital and its nursing and support staff under the theory of respondeat superior.

Rather, the decisions stand for the fact the patient’s nurse expert witness affidavit did not meet requirements for such an affidavit.

Moreover, the case was not dismissed by either court “with prejudice,” meaning the patient has the opportunity to refile his case if he so chooses, and if the refiling is consistent with the state’s procedures for refiling.

In terms of your wound care practice, it is important to stress what this case might mean for you as an expert witness or as a wound care provider.

Some aspects include:

  • Because you are a professional, any lawsuit brought against you in relation to your practice should be consistent with professional negligence mandates showing a breach of your overall standard of care.
  • Ordinary negligence may be alleged against you if your conduct does not meet the level of “highly specialized expert knowledge.”
  • If you undertake the role of a nurse expert witness in wound care, be certain your affidavit and your testimony conform to the requirements of the role, including actual facts upon which you based your opinion.
  • Seek legal guidance by a nurse attorney or attorney before deciding to take on the role of a wound care nurse expert so you meet all necessary requirements of that role.
  • Provide your nursing care consistent with current professional standards of wound care nursing.
  • Carefully, accurately and completely document any patient assessments, position changes and other required nursing care.
  • With an unconscious patient, you are not only his or her wound care nurse, you are also the patient’s advocate for the nursing care he or she needs.

Take our course on Skin and Wound Management today.


Nancy J. Brent, MS, JD, RN

Nancy J. Brent, MS, JD, RN, our legal information columnist, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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