Response to Liability discussion

These are my two friends I would like the writer to respond with two academic references each.

1.Jeannette Eisenhauer

This week’s discussion surrounds the topic of liability and explores the concepts of errors and malpractice. I am aware that this discussion post is way too long. I just did not feel that I could explore each question in a shorter manner. I do apologise.

Sherman Sizemore

I chose this case because I did hear about it at the time, and it left a lasting impression.

The Surgery

73-year-old Baptist minister Sherman Sizemore had been complaining of abdominal pain and was admitted to the hospital for exploratory surgery on January 19th, 2006 (Breen, 2007). The lawsuit filed by the family alleged that Sherman was given a paralytic, but that the anaesthetic was not given until 16 minutes of active surgery had elapsed, leading to him being fully aware of every incision, causing the trauma that eventually led to his demise (ABC News, 2007).

The Suicide

Sherman Sizemore had no prior history of mental health conditions. Following the surgery, however, he complained of being unable to sleep, of having nightmares, of being scared to be alone, and he told a friend that he may have been awake during the procedure (ABC News, 2007) while also doubting the reality of his memories (Breen, 2007).

Sherman Sizemore died by suicide on February 2nd, 2006, a mere two weeks after the traumatic surgery (Breen, 2007).

The Hippocratic Oath

The translated text of the Greek oath as presented by Harvard University press is as follows:

I swear by Apollo Healer, by Asclepius, by Hygieia, by Panacea, and by all the gods and goddesses, making them my witnesses, that I will carry out, according to my ability and judgment, this oath and this indenture.

To hold my teacher in this art equal to my own parents; to make him partner in my livelihood; when he is in need of money to share mine with him; to consider his family as my own brothers, and to teach them this art, if they want to learn it, without fee or indenture; to impart precept, oral instruction, and all other instruction to my own sons, the sons of my teacher, and to indentured pupils who have taken the Healer’s oath, but to nobody else.

I will use those dietary regimens which will benefit my patients according to my greatest ability and judgment, and I will do no harm or injustice to them. Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course. Similarly, I will not give to a woman a pessary to cause abortion. But I will keep pure and holy both my life and my art. I will not use the knife, not even, verily, on sufferers from stone, but I will give place to such as are craftsmen therein.

Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free. And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.

Now if I carry out this oath, and break it not, may I gain for ever reputation among all men for my life and for my art; but if I break it and forswear myself, may the opposite befall me. (Hippocrates of Cos, 1923)

Notably absent from this oath is the Latin phrase “primum non nocere”, which is often translated to mean “first, do no harm”. I believe the oath is as valid today as it was then, though some of the meaning will potentially be different, due to the furtherance of medical knowledge. An act that may have been considered in line with the oath may today be prohibited on account of the harm it does. Additionally, there is always some sense of interpretation included in the application of this oath: Using a sharp object to cut open the abdomen of an unconscious, helpless individual may be doing harm. It is, however, the lesser harm during a life-saving appendectomy.

I believe that these principles of ethical behaviour are extremely important when guiding my conduct and informing my actions when reasoning through the veil of ignorance.

Medical Malpractice
Negligence – Unintentional Tort

Negligence is a form of malpractice that occurs when a health care professional either performs an action a reasonable professional would not have performed or fails to perform an action a reasonable professional would haveperformed in a similar situation” (Fremgen, 2020, p. 123).

Negligence does not involve intention and the damage is based on the act of failing to exercise the degree of care any other reasonable professional individual would have performed in the same situation. There are four characteristics to determine the presence of negligence:


Duty is established when the health care provider enters a relationship with the patient. Such happens when they accept a patient. A provider can only be held liable if they had the duty to provide care. (Fremgen, 2020, p. 125f.).


Once the provider has the duty, it can be breeched. Such a breech is dereliction or breach of duty, which is the second aspect of negligence. Abandoning a patient after accepting them as a patient would be a dereliction (Fremgen, 2020, p. 127).

Direct Cause

If the dereliction of duty can be directly linked to an injury and if the injury would not have occurred without it, then the direct cause can be established (if shown by preponderance of evidence) (Fremgen, 2020, p. 127f.).


If there is an injury based on the conduct of the provider, the patient may be awarded damages as compensation (Fremgen, 2020, p. 128f).


Regardless of whether an individual intended to cause harm or not, they may still be responsible for any harm caused. This state of responsibility is called “liability”. The following terms specify in what way a duty was breached:


Malfeasance is the performance of an illegal act (Fremgen, 2020, p. 125). An example of a provider engaging in malfeasance would be the following: A CNA is walking past a room, in which she sees a resident who is close to falling out of bed. She knows that the individual is a fall risk and a heavy wetter. Her shift will be over in 15 minutes, and she knows she would take longer to properly take care of the resident. Instead of going into the room, assisting the resident into the middle of the bed, and potentially changing his brief, the CNA acts as if she did not see anything. The resident subsequently falls out of bed and is injured.


Misfeasance is the improper performance of an otherwise lawful act (Fremgen, 2020, p. 125). An example could be the action of a medication aide who passes seizure medications to a resident but misses the fact that both medications have to be passed as two pills each, triggering a seizure that causes the resident to get injured in her bathroom.


Nonfeasance is the non-performance of a necessary act (Fremgen, 2020, p. 125). An act of nonfeasance is the failure of a trained individual to provide CPR to an individual found lying on the ground.


Maleficence is generally defined as an act of committing harm or evil. The term is not used in legal terminology in the United States. Page 28 of our book (Sole et al., 2017) cites “maleficence” as doing no harm and contrasts it with “beneficence” as doing good. It appears to me, that the author of the book intended to contrast non-maleficence and beneficence in this paragraph and failed to do so. Non-maleficence is the refraining from an action that would cause harm while beneficence is the engagement in an action that produces good. In a colloquial sense, the difference between maleficence and negligence is the state of mind of the individual in that the maleficent individual means to cause harm while the negligent individual does not.

Prevention and Reporting

There are a variety of ways to prevent unethical behaviour and report unethical behaviour whenever it happens. Most facilities do have ethics boards and/or ethics hotlines where issues can be reported if they have not previously been resolved through the chain of command or if involving supervisors may pose a risk for retaliation.

2. Therlyn Cotin

Loretta Macpherson was a 65-year-old woman who died due to a medication error which happened at a hospital in Bend Oregon. She arrived at the emergency room 2 days prior to discuss medication dosage questions after a recent brain surgery (CBS/AP, 2014). The doctors concluded that based on the surgery conducted, Mrs. Macpherson required a medication called fosphenytoin. This medication is “an anticonvulsant that is used to prevent or control seizures” (, 2021). However, the medication administered was rocuronium which is “used with general anesthesia medicines for rapid sequence intubation and helps relax muscles during mechanical ventilations” (, 2021). According to Dr. Michael Michel Boileau, chief clinical officer for St. Charles Health System, he stated that Mrs. Macpherson stopped breathing which led to her suffering from cardiac arrest and brain damage (CBS/AP, 2014). According to (CBS/AP, 2014), an error in the medication process from how the medication was ordered from the manufacturer to the method it was mixed in the pharmacy, labeling, and how the medication was administered to the patient are all variables to consider with the investigation.

The Hippocratic oath is “an oath embodying a code of medical ethics usually taken by those about to begin medical practice” (Merriam-Webster, 2021). In my opinion, I believe this oath signifies proper delivery of care taken by doctors and the use of good judgement to promote health and well-being to patients. Although this oath does not apply to nurses as much as doctors, it is still utilized by healthcare professionals to cover a range of ethical issues and increase better patient interaction. Based on the knowledge gained from nursing school, I am aware that non-maleficence means to do no harm or cause negative acts towards a patient. Maleficence would be the opposite which would increase the risk of harm or bodily injury to the patient. Negligence is “the failure to do something that a reasonable person, guided by those considerations that ordinarily regulate human affairs, would do or doing something that a prudent and reasonable person would not do” (Townsend, Morgan, 2020 p. A-18). In my opinion, I believe the main difference between maleficence and negligence is that maleficence is done intentionally to harm someone, and negligence is unintentional and sometimes accidental to someone.

Based on knowledge gained from nursing school, within a healthcare setting it is more common for a doctor or any other type of medical provider to be held liable for any medical errors. This is because doctors are the medical personnel who provide medical diagnosis and treatment of care for patients. It is the nurse’s responsibility to implement that treatment plan. However, nurses may also be responsible for certain negative actions brought out on the patient. One of the most popular sources that I know assists in preventing medical errors and well as promotes patient confidentiality is the Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects and individual’s medical records and sets certain boundaries to who has access to said records. In addition, HIPAA holds personnel who breach confidential medical information accountable for their actions which can lead to civil and criminal penalties.

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