Nursing Field Notes / Nursing Core · Legal & Ethics Series
Tort Law ⚖️
Negligence, malpractice, and the intentional torts that show up on every NCLEX legal question
NG-172NURSING CORESeries: Legal & Ethics 2 of 5ADHD-friendly visual edition
A tort is a wrongful act or violation of someone's rights that creates legal liability. Nursing torts split into two families: unintentional (negligence, malpractice — you didn't mean to cause harm, but you did) and intentional (assault, battery, false imprisonment, defamation — willful acts that violate a client's rights). The burden of proof always sits with the accuser, not the nurse being accused.
🧾 Burden of proofSits with the accuser — not the nurse.
🪜 4 elements of negligenceDuty → Breach → Causation → Damages — all 4 required.
🆚 A before BAssault (threat) always comes before Battery (actual harmful contact).
🔒 No consent = BatteryAny procedure or treatment given without consent is battery.
🧾
THE BASICS
STEP 1 · DEFINE THE TERM
One umbrella word — tort — covers everything from an honest mistake to a deliberate violation.
⚖️ Tort = a wrongful act that creates legal liability
🧠 "Innocent until proven, and it's not your job to prove it." Whoever brings the claim (the accuser) has to prove the nurse was liable — the nurse doesn't have to prove innocence.
🏛️ Civil vs. Criminal
Civil
Criminal
Crime against an individual
Crime against the state
Most nursing torts land here
More serious — can involve licensure loss, jail
🧠 Most malpractice suits are civil — but abuse, patient abandonment with harm, or falsifying records can escalate to criminal.
📏 The "reasonable, prudent nurse" test
Used to determine the standard of care in every negligence/malpractice case: "What would a reasonable, prudent nurse — with similar training and experience, in a similar setting — have done in this same situation?"
🧠 It's not "what would a perfect nurse do" — it's what a reasonably careful peer would do. This test comes back on the Informed Consent page too.
⚖️
NEGLIGENCE & MALPRACTICE
STEP 2 · UNINTENTIONAL TORTS
Same family, different license — malpractice is negligence committed by a licensed professional.
🪜 The 4 elements of negligence — ALL FOUR must be present
Example: A nurse doesn't wash hands before inserting a Foley catheter (breach — a duty existed) and the client develops a catheter-associated UTI (causation + damages). All four elements present = negligence.
🧠 "DBCD — Don't Break the Client's Duty." Duty → Breach → Causation → Damages. Miss any one link and there's no negligence claim, no matter how careless the nurse was.
⚠️ Negligence — the definition
The failure to provide adequate care that another reasonable, prudent nurse would provide in a similar situation.
Example: A nurse identifies an absent peripheral pulse in a client's casted extremity in the early morning — but doesn't report it to the HCP until the early afternoon. The delay is the breach.
🧠 Withholding informed consent can itself be negligence — if a provider doesn't obtain proper consent, that provider can be found negligent.
🩺 Malpractice — negligence with a license attached
Illegal, improper, or negligent actions by a licensed professional — practice that falls below the accepted standard of care.
Example: An RN fails to check the dosage printed on a medication vial, and the client is harmed as a result.
🧠 Malpractice = negligence + a license. Every malpractice case is negligence, but not every negligence case is malpractice — malpractice specifically requires the person to be a licensed professional acting within their scope.
🚪 Abandonment — a special unintentional tort
Desertion of a client by anyone who has already assumed responsibility for their care — for example, leaving an assignment or ending a nurse-client relationship without properly transferring care or giving adequate notice.
🧠 Once a nurse accepts an assignment (duty exists), walking away without a proper hand-off is abandonment — even if the intent was reasonable (e.g., leaving because the assignment felt unsafe). Always notify the charge nurse/supervisor first.
🚨
INTENTIONAL TORTS
STEP 3 · WILLFUL ACTS
These are deliberate — no accident excuse. Assault and battery are the two NCLEX loves most.
🆚 Assault (the threat) vs. Battery (the act) — A comes before B
🧠 "A & B, in order — Assault before Battery." The threat (A) doesn't require contact; the act (B) does. Both can happen in one scenario: threatening an NG tube (assault) then inserting it anyway over refusal (battery).
🔒 False imprisonment
Using physical restraints, seclusion, or a chemical restraint to keep someone against their will — without a valid order/indication.
Example: Using restraints on a competent client just to prevent them from leaving the facility. Chemically restraining a competent client able to make their own decisions is both false imprisonment and assault/battery.
🧠 A restraint used for the wrong reason (convenience, punishment, "they might leave AMA") is false imprisonment — see page 5 for the correct AMA process.
📚 Defamation of character — Libel vs. Slander
Making false, rude, or insulting remarks that harm a client's (or coworker's) reputation.
Libel
Slander
Written
Spoken
🧠 "LIBEL lives in the LIBRARY" — both start with L, and a library holds written words. Example: break-room gossip about a coworker's alleged affair with a client = slander (spoken).
🕵️ Invasion of privacy
Violating a client's confidentiality rights — including HIPAA violations.
Example: Discussing a client's diagnosis where others can overhear, or accessing a chart with no professional reason to.
🧠 Confidentiality violations sit at the intersection of tort law and HIPAA — same act, two different legal exposures.
🎯
NCLEX TRAPS
STEP 4 · DON'T GET FOOLED
The exam loves to mix these terms up on purpose — here's how to keep them straight.
🔀 Side-by-side: the pairs students swap by mistake
Term
Definition
Key distinguisher
Negligence
Failure to provide the care a reasonable, prudent peer would
Anyone with a duty of care
Malpractice
Negligence committed by a licensed professional, below standard of care
Requires a license
Assault
Threat of harm
No contact required
Battery
Unconsented harmful/offensive contact
Contact did occur
False imprisonment
Restricting freedom without valid cause
Restraints/seclusion misused
Libel
Defamation
Written
Slander
Defamation
Spoken
🚨 Highest-yield fact: treatment without consent = battery
This single fact links Tort Law directly to the next page in this series. Any invasive procedure, medication, or treatment given without valid consent — even if medically appropriate — is legally battery.
In any tort claim, the accuser must prove all required elements. A nurse is not required to prove they did nothing wrong — the plaintiff must prove the nurse did.
🧠 This is why thorough, honest documentation matters so much — it's the nurse's best defense if an accusation is ever made.
🔗 Series link: These terms are built on the six ethical principles from NG-133 · Ethical Key Terms (battery = a violation of autonomy; false imprisonment = a violation of autonomy done under a false banner of beneficence). Restraint misuse also connects to the right-to-leave discussion on NG-220 · AMA & Mandatory Reporting.
⚡
QUICK RECALL
SAY IT OUT LOUD
🧾 Burden of proofOn the accuser, not the nurse
🪜 4 elementsDuty → Breach → Causation → Damages
🆚 Assault → BatteryThreat, then act — in that order
🔒 No consent= Battery, every time
🎯 Cover & check — 4 rapid-fire questions
Q1: A nurse skips hand hygiene before a Foley insertion and the client develops a UTI. Which 2 elements of negligence does this satisfy at minimum?
Breach (skipped standard technique) and causation/damages (the UTI resulted) — plus duty, since a nurse-client relationship existed. All four elements are present.
Q2: A nurse says "I'll restrain you if you get up again" but never actually restrains the client. What tort is this?
Assault — the threat of harm, without any actual contact.
Q3: A competent client is placed in restraints solely to stop them from leaving the unit. What tort(s)?
False imprisonment (and potentially battery/assault depending on how it was carried out).
Q4: What's the difference between negligence and malpractice?
Malpractice is negligence committed specifically by a licensed professional acting below the standard of care — negligence is the broader, general term.