Nursing Malpractice: Liability and Risk Management

By Charles C. Sharpe | Go to book overview

3

Defenses in Malpractice

PRINCIPAL TYPES OF LEGAL DEFENSE

Under the law, an attorney can offer two principal types of defense on behalf of the nurse who has been named as a defendant in a suit for malpractice. The first is [defense of fact] which will contend that there was, in fact, no breach of duty; or there was a breach of duty, but that it was not the cause of the patient's alleged injury. The attorney will then attempt to provide a variety of alternative facts, causes, or circumstances, which, the attorney will contend, led to the injury. In those instances where a suit is seen to be clearly indefensible, an offer of a settlement may be the only feasible recourse. The second type of defense is [defense of law.] An example of this is a statute of limitations in a given state.


Defense of Fact

Specific defenses will be offered based on the type of tort that forms the basis of the lawsuit. These include affirmative defenses that are defined in substantive law. Affirmative defenses will be presented in an effort to show that there were certain facts or circumstances that obviate the claims of the plaintiff. They are not denials of the truth or facts of the plaintiff's claims.

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