Standard of Proof in Cases Involving Nurses
Nancy J. Brent, RN, MS, JD

Nurses often think that the only lawsuit they may be involved in during their professional career is a case alleging professional negligence. Nothing could be further from the truth. Nurses can be named as defendants in criminal cases and in disciplinary cases before the state board of nursing. Each type of case raises different allegations against the nurse defendant.

In a professional negligence case, the nurse is alleged to have breached the standard of care in a particular patient care situation; as a result of the breach, the patient is injured. In contrast, a criminal case in which the nurse is a defendant may allege that the nurse’s changing the route of administration of a medication that resulted in the death of a patient meets the definition of involuntary manslaughter. And in a disciplinary action, the board may allege that the nurse violated a provision or provisions of the state nurse practice act and/or its rules (e.g., unprofessional conduct).

Each of these types of cases is different. The professional negligence suit is a civil one wherein the injured plaintiff (patient) is seeking compensation for the injuries sustained as a result of the nurse’s alleged negligent conduct. In the criminal case, the state, prosecuting the matter in the name of the people of the state, seeks to make the defendant responsible for the criminal conduct by punishing the nurse offender. This punishment may take the form of a fine, jail time, or both. State board of nursing proceedings, governed by administrative law, also seek to punish the nurse licensee. Such discipline may be placing the nurse’s license on probation, requiring continuing education courses that help the nurse licensee understand how his or her conduct violated the act so as to avoid the same conduct in the future, or suspending the nurse’s license to practice.

Because each of the three types of cases have different purposes and outcomes, the burden of proof rules in each case is different.

How the System Works

The United States’ system of justice is adversarial. That is, it involves the opportunity for opposing parties to contest each other’s viewpoint by putting forth their case before an independent decisionmaker.¹ Such a system also involves the need to meet one’s burden of proof, which requires that each party to a suit prove his or her position in a contested case.² The burden of proof includes not only the burden of persuasion but also the burden of production (evidence).³

The party filing the suit has the burden of proof. For example, if a plaintiff (patient) sues a nurse and alleges professional negligence, it is the patient who bears the responsibility of meeting his or her burden of proof. If met, the responsibility to counter the evidence presented — and hopefully persuade the jury to enter a verdict in his or her favor — then shifts to the nurse defendant.

Burden of Proof in Civil Cases

Because the purpose of a civil suit is to seek a remedy — most often monetary damages to compensate for a loss³ — stakes can be very high for the parties to the suit. The plaintiff must not only meet his or her burden of proof but also seek to prevent the defendant from attempting to obtain a verdict in his or her favor before the end of the trial.

The plaintiff’s burden of proof in a civil suit is described as a preponderance of the evidence. In other words, the plaintiff must prove the allegations in the suit with “superior” evidentiary weight. This burden does not eliminate any and all reasonable doubt about the issue in the lawsuit, but the evidence presented must be sufficient to influence a fair and impartial mind to select the plaintiff’s side of an issue rather than the defendant’s. In short, if the plaintiff presents the stronger evidence, however slight the “edge” of the stronger evidence may be, the jury is to return a verdict for that party.⁵

If, at the close of the plaintiff’s case, the defendant does not believe that the plaintiff has met its burden of proof, the defendant can ask the court for a directed verdict. This request asks the judge to rule in its favor without the trial proceeding further because the evidence presented allows only one outcome — a verdict for the party making the request.⁶

Meeting the burden of proof in a civil case, then, is essential not only to hopefully obtain a verdict in one’s favor but also to keep the case “alive” until it can be sent to the jury for determination.

Burden of Proof in Criminal Cases

The burden of proof in a criminal matter is probably the one most familiar to people, including nurses. Because a guilty verdict in a criminal matter can result in serious ramifications, including incarceration and/or the death penalty for the convicted party, the burden of proof in criminal cases must be high. Indeed, the burden of proof in a criminal case is the highest burden of proof — beyond a reasonable doubt.

To meet its burden, the state must prove beyond a reasonable doubt all the facts necessary to establish the defendant’s guilt.⁷ In other words, the state must present evidence to prevent a juror (or a judge if the case is a “bench” trial) from believing that there is a real possibility that the defendant is not guilty.⁸

In any criminal matter, the person charged with a crime is protected by an additional element coexistent with the burden of proof — the presumption of innocence. This presumption is intimately linked with the burden of proof the state must meet because no conviction can occur unless the state proves its case beyond a reasonable doubt. Inherent in the presumption of innocence is that the criminal defendant is not required to prove his innocence.⁹

Burden of Proof in Administrative Cases

Administrative law refers to state or federal governmental agencies assigned the responsibility of implementing governmental programs and the cases that flow from the agencies’ decisions in fulfilling their responsibilities.¹⁰ One common governmental agency well known to nurses is the state board of nursing. When allegations of a violation of the state nurse practice act and/or its rules, occurs, the board of nursing follows the state Administrative Procedure Act and its own promulgated rules in any proceedings in which a nurse licensee is involved.

When a state board of nursing decides to take action against a nurse licensee, state law governs the burden of proof the board must meet. As a result, the burden of proof in administrative proceedings may be different from state to state. Even so, one of the most common burden of proof administrative agencies must adhere to when they initiate proceedings against an individual is the clear and convincing evidence standard. That is, an administrative agency must present evidence indicating that the issue to be proved (e.g., practicing nursing while under the influence of a chemical substances) is highly probable or reasonably certain.¹¹ If a state board of nursing does not utilize the clear and convincing evidence standard, it most probably uses the preponderance of the evidence standard also used in civil matters.

The clear and convincing evidence standard is a greater burden than the preponderance standard but does not rise to the level of the standard used in criminal cases.

Circumstances do arise when an individual may need to initiate a proceeding before an administrative agency. For example, a nurse whose license has been suspended may file a petition to reinstate his or her license. When the nurse does so, his or her burden of proof to show that the license should be restored is not usually the same as the agency’s burden of proof when it initiates an action against a nurse licensee. Depending on the burden of proof adopted by the state legislature for the administrative agency, the individual’s burden when initiating a case is less. For example, in states in which the agency’s burden of proof is clear and convincing evidence, the individual’s burden of proof when initiating an administrative proceeding might be a preponderance of the evidence.

Implications for Nurses

Nurses may be involved in different legal proceedings involving contrary purposes. In fact, one patient care incident may result in potential legal liability under all three areas of the law discussed. As a result, it is important for the nurse to understand the varied proceedings and what each party is responsible for in those proceedings. Nurses who file petitions to reinstate their nursing licenses, for example, must be certain that they have enough competent evidence to meet the burden of proof in that proceeding so that the board of nursing can make a careful and accurate ruling. Nurses involved in a criminal matter must take advantage of the many constitutional protections afforded a criminal defendant, one of the most important being the burden of proof the state must meet in supporting the allegations against them. Likewise nurses named as defendants in a lawsuit alleging professional negligence must carefully evaluate, with the help of their attorneys, the evidence available that will be used to support the case against them.

This brief overview includes key points about the burden of proof standard. In all three circumstances, knowing that one standard of proof does not apply to all the proceedings provides a beginning foundation for understanding this complex issue.

Nancy J. Brent, RN, MS, JD, received her Juris Doctor degree from Loyola University of Chicago School of Law and concentrates her own solo law practice in health law and legal representation, consultation, and education for healthcare professionals, school of nursing faculty, and healthcare delivery facilities. For more of Brent’s work, see “Ask the Experts” on www.nursingspectrum.com.

References

1. Garner B, ed. Black’s Law Dictionary. 2nd Pocket Edition. St. Paul, MN: West Group:2001: 21-22.

2. Hay B, Spier K. Burdens of proof in civil litigation: an economic perspective. J Legal Studies. 1997;26: 413.

3. Garner B, ed. Black’s Law Dictionary. 2nd Pocket Edition. St. Paul, MN: West Group:2001: 80.

4. Baum L. American Courts: Process and Policy. 4th edition. Boston, MA: Houghton Mifflin Company; 1998: 218.

5. Garner B, ed. Black’s Law Dictionary. 2nd Pocket Edition. St. Paul, MN: West Group:2001: 547.

6. Baum L. American Courts: Process and Policy. 4th edition. Boston, MA: Houghton Mifflin Company; 1998: 224-225.

7. LaFave W, Scott A. Criminal Law. 2nd edition. St. Paul, MN: West Publishing Company; 1986:48.

8. Garner B, ed. Black’s Law Dictionary. 2nd Pocket Edition. St. Paul, MN: West Group; 2001: 584.

9. LaFave W, Scott A. Criminal Law. 2nd edition. St. Paul, MN: West Publishing Company; 1986: 58.

10. Aman A, Mayton W. Administrative Law. St. Paul, MN: West Group:1998:vii.

11. Garner B, ed. Black’s Law Dictionary. 2nd Pocket Edition. St. Paul, MN: West Group:2001: 250.