When to Decline a Nursing Malpractice Case

Decline a nursing malpractice case when the review cannot support all four elements: a nursing duty, a breach of the nursing standard of care, a causal link to the injury, and damages, which in practice must be large enough to justify expert-driven litigation. Many cases fail on causation or damages, not on whether a nurse made a mistake. A short nurse merit screen, done before the firm spends on experts, usually shows which element is missing.

The four questions a merit screen answers

A merit screen is a focused record review that answers whether a case is worth pursuing. It is not a full report. A nurse reviewer works through:

1. What should the nurses have done? The expected assessment, monitoring, escalation, medication administration and documentation for this patient, in this setting, at that time.
2. What did they do? What the record shows, entry by entry, including what is absent.
3. Did the difference matter? Whether the deviation plausibly changed the outcome, and what a physician would need to say to connect it.
4. What was lost? The injury, its permanence, and how it compares with the patient's condition before the event.

The merit screening service is built around those questions. Many states require a certificate or affidavit of merit before or soon after filing, and the screen is often the first step toward one; see the certificate of merit and nurse review.

Findings that usually end the case

None of these call for a full chronology. A screen that finds one of them saves the firm from discovering it a year later.

Findings that look fatal but are not

Some cases are turned down for the wrong reasons. A nurse reviewer is most useful here, because these patterns are easy to miss on a quick read.

• "It looks like a physician case." A delay in treatment is often a delay in escalation: a nurse who charted worsening vital signs and did not notify anyone, or notified and did not use the chain of command when the response was inadequate. The failure-to-rescue case type is built on this pattern.
• "The charting is complete." Documentation that is too consistent, copied forward or entered after the event may not reflect care at the bedside. An EHR audit trail shows when entries were made and by whom.
• "Records are missing." Gaps can be a reason to request more, not to decline. Flowsheets, MARs, monitor data and dispensing cabinet logs are often left out of the first production. See how a nurse spots missing records.
• "The patient was already very sick." Sick patients are the ones the monitoring exists for. The question is whether the nursing care changed the course, not whether the patient was at risk.
• "The facility had a policy and followed it." The policy may fall below the standard, or the record may show it was followed on paper only.

Cases to refer rather than decline

Some cases have merit but are not nursing cases, or not cases for your firm:

• The deviation is a surgical technique or diagnostic error with no nursing component, and needs a physician reviewer from the start.
• The claim needs an expert type or trial experience in a venue the firm does not have.
• A conflict check turns up a relationship with the facility, a provider or a carrier.

A merit screen that says "no nursing breach, but the physician question is open" is a useful result. A physician expert can take it from there.

How firms decline cleanly

Firms that decline usually follow a few common practices. Your own policies and the rules of professional conduct in your state govern the specifics.

• Decline in writing. A non-engagement letter states that the firm does not represent the person.
• Mention time limits without calculating them. Many firms say that deadlines apply and may be short, and recommend that the person consult another attorney promptly.
• Return the records. Send back originals and keep a log of what was received and returned.
• Keep the letter neutral. Many firms avoid commenting on the strength of the claim, since another attorney may see it differently.

How to keep the screen affordable

• Send the core records first: the admission, the event window and the days after. The medical record request checklist lists what to ask for.
• Ask a narrow question: which nursing deviations, if any, and whether they plausibly link to the injury.
• Ask for a short written answer, not a chronology. If the case moves forward, the chronology comes next.
• Match the reviewer to the setting. An ICU nurse reads an ICU chart faster and catches more than a generalist.

Next step

Request a merit screen: describe the case without names, and nurses from the right specialty send proposals. Records stay private until you hire.

General information for legal professionals, not legal advice. Rules and deadlines vary by state; check the statute and local rules that govern your case.