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A Nursing Primer on the Law: Being Named in a Lawsuit

Being named in a lawsuit can be an extremely stressful event for any nurse. The litigation process can cause devastating damage to a nurse’s self-concept and to the nurse’s practice. In the past suing the hospital and the doctor were generally the usual manner to obtain relief for someone bringing a lawsuit. However, now more than ever, the new order in the health care arena has made the nurse an integral part of delivering care to patients. The nurse has been delegated more responsibility and is also more accountability for the actions of licensed and unlicensed staff. This role has provided for increased autonomy as well as increased accountability. To make matters more complicated, the nursing shortage and limited resources have been a factor in nurses being increasingly involved in medical malpractice lawsuits.

In order to analyze the process by which a legal claim may arise and how it would affect the nurse this article will focus on a three-part framework to understand the ramifications of a legal claim so that, if a claim does arise, the nurse can react appropriately and know what to expect. This article focuses on the three main aspects of a legal claim: 1) the pre-suit notice; 2) the lawsuit; 3) the trial. Lawsuits may invoke questions of malpractice insurance coverage. Therefore, this article will also attempt to familiarize nurses with the basic components of a malpractice insurance policy.

When legal claims arise, nurses must notify nursing and hospital administration personnel and health care attorneys to address these claims. Just as patients must trust their nurses to provide quality care for them so must nurses trust the attorney who is representing the nurse. As with the nurse-patient relationship, the effectiveness of the lawyer-nurse relationship depends on the nurse's candidness about the events surrounding the legal claim.

THE MEDICAL MALPRACTICE INSURANCE POLICY
Duties of the insurance company

Defense and indemnity. In most states the insurance company who represents the independent nurse or institution has two main obligations under a malpractice policy: the duty to defend and the duty to indemnify. The duty to defend requires the insurance company to retain a lawyer to defend legal claims that are brought against the nurse and/or institution. This duty also requires the insurance company to pay expenses relating to the defense. The duty to indemnify requires the insurance company to pay an amount up to the policy limits for a settlement or judgment on any covered claim against the nurse. 1(Berry, D. Bowen, JD, BUMC Proceedings, 2001;14:109-112.)

Assignment of an attorney. An insurance company will generally retain an attorney for a nurse when a lawsuit is filed. Generally, the insurance company will assign a lawyer who has been approved to work on its cases, and the insurance company may honor a nurse's request for a specific attorney. The insurance company pays the fees of the lawyer it ultimately retains. While the nurse may obtain a personal attorney in addition to an attorney retained by the insurance company, the insurance company will not pay those fees. 2 (id.)

Consent to settle. Some insurance policies have a consent clause that requires the insurance company to obtain the nurse's consent in order to settle a case. By giving consent, the nurse places the power of decision regarding settlement in the hands of the insurance company. Settlements, like adverse judgments, may be reported to the National Practitioner Data Bank and also may be reported to the appropriate nursing board. 3 (id).

Duties of the Insured Nurse
Prompt notice. In order for a policy to cover the nurse if accused of negligence or malpractice, the policy typically requires a nurse who is insured to provide the insurance company with prompt notice of any potential claims or lawsuits against them. The insured must report any occurrence in a reasonable time frame- generally within 30 days. An insured nurse's failure to provide prompt notice could jeopardize the insurance company's obligations both to defend and to indemnify. Therefore, it is in a nurse's best interest to provide prompt notice. 4.Iyer, P.: 'Nursing Documentation,' in Nursing Malpractice, P. Iyer (ed). Tucson, Lawyers & Judges Publishing Co., 1996.

Cooperation. A policy also typically contains a cooperation clause, which requires insured nurses to cooperate in the defense of a legal claim. This cooperation includes meeting with the attorney and risk manager to prepare a defense. 5.Iyer, P.: 'Nursing Documentation,' in Nursing Malpractice, P. Iyer (ed). Tucson, Lawyers & Judges Publishing Co., 1996.

Should a nurse purchase insurance?
This is a frequently asked questioned. A nurse generally is covered under an employers insurance policy. However, a nurse may consider purchasing insurance if working as a staffing pool or agency nurse or as an independent contractor. The primary factor in determining whether the hospital is the employer of an individual is whether the hospital has the right to control the means and details, as well as the end result, of the individual's work see 6.Sansom v. Baptist Memorial Hosp. System, 940 S.W.2d 128, 130 (Tex. App.—San Antonio 1996), rev’d on other grounds, 969 S.W.2d 945 (Tex. 1998) (emergency room doctor was not employee of hospital).

The amount of control that the particular institution has over the nurse’s actions is crucial in determining whether a nurse will be held liable for her independent actions. Additionally, the nurse may be held liable for actions that are taken through any nursing care given gratuitously or on a voluntary basis. In most jurisdictions Good Samaritan laws cover the actions taken by a nurse so long as those actions do not deviate from the standard of care that a reasonable, ordinary, prudent health care provider would have taken under those circumstances. Also, a nurse generally has no duty to help a person outside the scope of her work-related duties. However, if the nurse undertakes the responsibility of helping someone the nurse may be held to the standard of care of a reasonably prudent health care provider with similar training and in similar circumstances. 7.(Wilkinson, Allen P. Nursing Malpractice. June 1998 (cited 2002). Available from http://www.findarticles.com)

Even if you're covered by your institution’s insurance, having your own insurance as well provides distinct advantages. Coverage on your own shields you from liability outside your facility 24 hours per day. Additionally, you may choose your own attorney. This may become crucial if you and your institution have a conflict regarding issues of liability and if fingerprinting becomes an issue. Also, having your own insurance provides you with a choice regarding which attorney to use and whether or not you wish to settle the claim.8. (Id.)

By having your own attorney you have the additional reassurance of knowing that a legal professional is watching our for your best interests. Finally having your own insurance may protect you from financial disaster if the facility where you are employed asks for repayment for any judgment as a result of a medical malpractice claim that involves possible nursing malpractice or negligence (this process is known as indemnification). 9.Id.

THE FUNDAMENTALS OF THE LITIGATION PROCESS THE PRE-SUIT NOTICE
The pre-suit notice period pertains to the nurse and/or institution receiving notice of a potential claim. Oftentimes, both must react to the notice before having the benefit of a lawyer's guidance. Understanding the significance of this notice can enable a nurse to respond protectively and avoid potentially harmful conduct.

A notice letter may be sent
In many jurisdictions the legal process may begin when a nurse is served with a notice letter (See attached Appendix A). Some jurisdictions may only have notice in the form of the petition or complaint. In Texas and many other States, laws governing medical malpractice law, require this notice in order to encourage pre-suit negotiations and settlement. Though many states require notice, the letter is not a lawsuit, is not filed with the court, and simply places nurses on notice of potential claims against them.10.(Bogart, Julie B., R.N., M.N., Legal Nurse Consulting: Principles and Practice. CRC Press. 1998).

Immediate notice to nursing administration and the risk management department
Once a nurse has been given notice of a lawsuit the nurse must notify nursing administration, the clinical manager and risk manager. These individuals will invariably be involved in some if not all the litigation process and must be placed on alert that you and the facility have been sued. The risk manager’s expertise is essential to prepare defenses to potential lawsuits and to ultimately prevent any future harmful situations which may be litigious or create a danger for patients. These subsequent measures are generally not admissible in the event that litigation is pursued in a case.

Immediate notice to the insurance company
Upon receipt of a notice letter, if the nurse carries malpractice insurance, notice must immediately be given to the insurance company and the nurse must forward the insurance company any relevant papers. Immediate notification can operate to institute insurance coverage; delaying notification can spell trouble for the nurse and can jeopardize coverage. The dangerous of not having coverage is obvious: exposure to personal liability for any economic recovery by the person(s) bring the lawsuit (Plaintiff). 11.(Wilkinson, Allen P. Nursing Malpractice. June 1998 (cited 2002). Available from http://www.findarticles.com)

A nurse should also notify the insurance company of any formal service of process or any documentation or communication that may resemble a legal claim, whether or not the nurse has first received a notice letter. These items could include a citation (proof of service), petition (also known as the complaint- this is generally the document filed with the court which details the basis of the lawsuit), discovery request (request to obtain relevant facts, documents or other relevant data), or deposition notice (notice that a nurse will be called to give sworn testimony). The insurance company is in a much better position than the nurse to evaluate the effect of any material received. Documentation or communications should be forwarded to the insurance company and the nurse should retain her own copies of all information received. 12.(Id.)

A nurse should also provide notice if contacted by a plaintiff's lawyer who is generally considering a lawsuit or pursuing a claim against another health care provider. Nurses who try on their own to convince the plaintiff's lawyer they don't belong in a lawsuit can cause irreparable harm to the nurse’s own defense and the institution’s defense and guarantee their own involvement in the lawsuit. Not only can these communications damage the nurse's position with respect to coverage, but it prevents the opportunity for either an attorney or a malpractice insurance adjuster, to evaluate the initial contact made by the nurse with the plaintiff attorney and take steps to protect the nurse's interest. If the nurse is contacted by the plaintiff attorney, the best strategy is to politely decline to discuss the case and immediately notify hospital administration, the risk manager and if the nurse carries an independent malpractice policy, the insurance company. 13.Wilkinson, Allen P. Nursing Malpractice. June 1998 (cited 2002). Available from http://www.findarticles.com

The patient's chart
It is imperative that no changes, alterations, or deletions are made in the chart. If a lawsuit is initiated, even the appearance that an alteration has been made can have a devastating impact. The chart must remain in exactly the same condition it was in before the nurse had notice of the claim. The alteration of data in the permanent medical record can jeopardize the nurses chances of being dropped from the lawsuit and significantly diminish any credibility the nurse or institution would have with a judge and jury. 14.Id.

Discussing the claim
Upon receiving a notice letter, a nurse may be tempted to discuss the claim with colleagues to obtain their opinions. This is a frequently made mistake which may be extremely dangerous from a litigation standpoint. If a lawsuit does develop, the nurse would likely be required to recount each and every conversation--even those unfavorable to the nurse's position. Any individuals that the nurse spoke to may be discovered and some of these individuals may be deposed to determine what relevant facts they may disclose. 15.(Berry, D. Bowen, JD, BUMC Proceedings, 2001;14:109-112). The Bottom line: Nurses should only discuss claims with nursing management, the risk manager, the nurse’s insurance company and their lawyer.

THE LAWSUIT
A lawsuit formally begins with the filing of a petition (also known as a complaint) in court and service of the petition and citation on the defendant nurse. As with the notice letter, the nurse must immediately notify the insurance company upon receipt of service to ensure that an answer can be filed in a timely manner. It is a good idea to contact the insurance company by phone first and then immediately forward a copy of the citation and petition. The insurance company will then assign a lawyer, if it has not already done so, and forward all material to the lawyer so that an answer can be filed and the defense begun. Every jurisdiction has deadlines for answering the petition. If an answer is not filed by this deadline, the plaintiff can obtain a default judgment against the defendant and begin proceedings to execute on the nurse's assets for the judgment amount. Discovery requests may be served along with the petition. Discovery requests include the production of documents, answering interrogatories, and the production of other data that would reasonably lead to the discovery of relevant facts. Correspondence regarding discovery may be received directly by the nurse. This material is also time sensitive, so any discovery must be forwarded immediately to the insurance company as well.

Discovery
Once the lawsuit has been filed, the discovery phase begins. During discovery, each party has the opportunity to obtain relevant information and documents from the other parties to the lawsuit. The standard for discovery is broad. Information and documents are properly discoverable if they are likely to lead to the discovery of admissible evidence, regardless of whether they will be ultimately admissible at trial. Parties and witnesses must respond to requests for material that is properly discoverable.

The nurse's investment of time and effort generally begins at this stage. The nurse's lawyer has likely already met with the nurse to review the events surrounding the claim, the chart, and any other pertinent medical records. During discovery, however, the nurse will likely be required to devote some time providing answers to written discovery and gathering any relevant documents requested. Preparing to give a deposition will require the nurse's undivided focus. Beforehand, the nurse's lawyer will meet with the nurse again to thoroughly prepare for it. The deposition itself could take several hours, and providing the testimony will require a great deal of concentration and focus. 16.Danner, Varan and Mathias. Medical Malpractice: Checklists and Discovery, 3rd ed. Deerfield, IL Clark, Boardman & Callaghan Publishing (1998).

Discovery takes the following forms:

Primary defenses
Failure of an expert. To maintain a malpractice action against a nurse and/or institution, a plaintiff must present a qualified expert witness to testify both that the nurse was negligent and that the nurse's actions were the proximate cause of the plaintiff's alleged injuries. Generally, the expert is one with similar training, education and clinical background as that of the nurse. The community standard of care has been generally replaced by a minimum national standard of care that must be met by nurses throughout the United States. Negligence is defined as the failure to use ordinary care; that is, the failure to do what a nurse of ordinary prudence would have done in the same or similar circumstances. Proximate cause is defined as that cause which, in a continuous and uninterrupted sequence, produces an event foreseeable by the nurse exercising the degree of care required of him or her. 20.O’Connor, Michol, Taylor Leslie, O’Connor’s Texas Causes of Action (2001-2002)

A properly qualified expert must be:
• A Registered or Licensed Practical nurse practicing at the time he or she provides testimony in the lawsuit or a nurse who was practicing nursing at the time of the care and treatment that is the basis of the claim; and • A nurse qualified on the basis of training, knowledge, education or experience. • Practicing nursing: includes training nurses or students at an accredited nursing school and serving as a nurse.

Factors considered in determining whether an expert witness is qualified include: • Whether the expert is board-certified in an area relevant to the claim • Whether the expert has substantial training or experience in an area relevant to the claim • Whether the expert is practicing medicine and rendering medical services relevant to the claim. 21.Zane, R., Nurse's Legal Handbook, 3rd edition. Springhouse, Pa., Springhouse Corporation, 1996. The nurse's attorney can challenge both an expert's qualifications and his or her ability to legally establish negligence and proximate cause. However, if the plaintiff's expert succeeds, a defendant nurse must then present a qualified expert to contradict the testimony of the plaintiff's expert. Often, an outside expert is retained, but it is not unheard of for a defendant nurse to be used as an expert on his or her own behalf. 22.Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Statute of limitations Medical malpractice claims statute of limitations, which is the time period within which a plaintiff must file a lawsuit. Generally, the period begins to run from the date of the treatment in question. However, 3 situations can adjust this strict rule: • Notice letter. Sending a notice letter may extend the time period. • Minor plaintiff. The statute of limitations does not begin to run, and is tolled, until a minor plaintiff is 18 years old. Therefore, a viable claim is alive until the minor turns the age of majority in most states. • Failure to discover the basis of the lawsuit: the discovery rule. When a plaintiff is unable to discover the basis of the lawsuit, investigate it, and file a lawsuit within a certain period of the date of treatment, in some jurisdictions the plaintiff can file suit within a reasonable time after discovering the basis of the suit. The burden is on the plaintiff to establish that the underlying malpractice could not have been discovered by a reasonable person in the same or similar circumstances. 23.O’Connor, Michol, Taylor Leslie, O’Connor’s Texas Causes of Action (2001-2002) Mediation Typically, at some point during the discovery process and before a trial takes place, the court may order the case to mediation in an effort to settle the case. The American litigation process encourages settlements for the sake of judicial economy and to avoid clogging up the court system. The parties can also agree to mediate the case without a court order in the furtherance of a settlement. Mediation is a nonbinding process in which an independent third party, the mediator, acts to facilitate settlement of the lawsuit. The mediator does not have independent adjudicatory power which would make the decision final. The mediator does not listen to both sides of the story and impose a settlement on the parties. Rather, the mediator can merely attempt to persuade the parties to reach a resolution. 24.Bogart, Julie B., R.N., M.N., Legal Nurse Consulting: Principles and Practice. CRC Press. 1998. Typically, mediation may take a half to a full day and requires the attendance of all parties and lawyers, the mediator, and any insurance representative having authority to settle. If the case is not resolved in mediation, the mediator reports to the court only that the parties were unable to reach a settlement. In most jurisdictions any information received by the mediator is confidential.

Pretrial modes of disposition
Typically, if a lawsuit is resolved before trial, the resolution is accomplished by one of the following methods:
THE TRIAL
Trial of a lawsuit is an extremely demanding undertaking, not only on the part of the lawyer, but also on the part of the nurse. It can be emotionally, physically, and psychologically exhausting, often requiring the nurse's complete and undivided attention to the exclusion of all else. The trial phase of the litigation process may take several years after a lawsuit is filed before it is begun. A lawsuit filed in most state courts can typically take from 1 to 4 years; a lawsuit filed in a smaller county, can be reached as early as 1 to 2 years. Preparing for trial can be a time consuming process because a trial date often cannot be firmly established. Because of the many courts dockets being backlogged the parties to a lawsuit may not know for certain whether they are going to trial until the day of trial, and other pre-trial attempts to set a firm trial date in advance, can also fail. Nonetheless, when trial on a given date is possible but uncertain, both the nurse and the lawyer must adequately prepare. 29.Berry, D. Bowen, JD, BUMC Proceedings, 2001;14:109-112.

The Nurse's Role
Before trial, the nurse must prepare to provide trial testimony, usually by extensively reviewing in depth of the medical records, the nurse's own deposition, and the depositions of other experts and any plaintiffs. Before trial, the nurse will meet with an attorney to prepare for direct testimony and anticipated cross-examination questions. Presentation of trial testimony requires complete focus and concentration. 30. Holley, Lee A., (1982) Preparation of Medical Cases For Settlement and Trial, The Harrison Company. It is best that the nurse be present at the an attorney table during the entire trial. This means a probable cut into the nurses hours worked, perhaps 1 to 2 weeks. In addition, it can be difficult for nurses to sit through constant testimony criticizing the actions and qualifications of the nurse, fellow health care professionals and of the institution. Even when the trial is over post-trial motions are made such as a motion to set aside the verdict or a motion for a new trial. In many instances an appeal will be made. These actions may take several years to resolve. 31.Id.

CONCLUSION
Nurses need to know the basics of the litigation process. As health care resources become more scarce patients may become angry, disappointed or have unrealistic expectations for their care. The purpose of this article was to prepare nurses in advance so that they can respond appropriately to a claim if they are named in a lawsuit. This article was also meant to apprise nurses of the magnitude of what they may be involved in and warn them that a lawsuit will require time, patience and effort. The vast majority of lawsuits end in settlement, but a small percentage warrant going to trial and therefore require additional time and attention from the nurse.

Although in many instances the physician or the hospital is named in a lawsuit, not the nurse, increasingly the nurse is also named, or at least subpoenaed, to appear as a witness at a deposition or trial. The increasing autonomy of the nursing profession has made knowing the basics of the litigation process a necessity. When legal claims arise, the best way for nurses to help themselves is to involve their risk manager, hospital administration team and if applicable the nurse’s insurance company. Through continuing education and working closely with risk managers nurses may be able to minimize their involvement in the litigation process.

References
Berry, D. Bowen, JD, BUMC Proceedings, 2001;14:109-112. Bogart, Julie B., R.N., M.N., Legal Nurse Consulting: Principles and Practice. CRC Press. 1998. Danner, Varan and Mathias. Medical Malpractice: Checklists and Discovery, 3rd ed. Deerfield, IL Clark, Boardman & Callaghan Publishing (1998). Holley, Lee A., (1982) Preparation of Medical Cases For Settlement and Trial, The Harrison Company. Iyer, P.: 'Nursing Documentation,' in Nursing Malpractice, P. Iyer (ed). Tucson, Lawyers & Judges Publishing Co., 1996. O’Connor, Michol, Taylor Leslie, O’Connor’s Texas Causes of Action (2001-2002). ://www.findarticles.com Zane, R., Nurse's Legal Handbook, 3rd edition. Springhouse, Pa., Springhouse Corporation, 1996.

STATUTES, RULES AND CASES
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Sansom v. Baptist Memorial Hosp. System, 940 S.W.2d 128, 130 (Tex. App.--San Antonio 1996), rev’d on other grounds, 969 S.W.2d 945 (Tex. 1998).
Federal Rules of Civil Procedure [F.R.C.P.]
Federal Rules of Civil Procedure [F.R.C.P. 34]
Federal Rules of Civil Procedure [F.R.C.P. 33a]

Suggested Reading
Aiken, T., and Catalano, J.: Legal, Ethical, and Political Issues in Nursing. Philadelphia, F.A. Davis, 1994. American Hospital Assoc. (2001), Member Resources, Publication, and Products. American Hospital Publishing. Chicago, IL. Carroll, M.M., Nursing Malpractice and Corporate Negligence: How is the Standard of Care Determined? Journal of Nursing Law, Vol.3, Issue 3 (1996). Iyer, P., and Camp, N.: Nursing Documentation: A Nursing Process Approach, 2nd edition. St. Louis, Mosby Year-Book, 1995. Levick, D.L. (1995), Risk Management and Insurance Audit Techniques, 3rd Ed. Boston. Nursing Law and Ethics Monthly: Current Issues and Developments of Interest to Nurses. American Society of Law and Medicine, 520 Commonwealth Ave., Boston, MA 02115 Occupational Safety and Health Act. 2002 Standards. Washington, D.C.. Occupation and Safety Health Reporter Weekly. Bureau of National Affairs, 1231 25th St., NW, Washington, DC 20037 Schoen, Mary A., Managing Legal Risks in Home Healthcare (cited 2002 Jan 16) Available from: http://nsweb.nursingspectrum.com Showers, Jennifer Lee. What you Need to Know About Negligence Lawsuits and related article Safeguarding Against Nursing Negligence Feb, 2000 (cited 2002 Jan 16) Available from: http://www.findarticles.com Trine, William and Luvera, P. Winning Medical Negligence Cases. Washington, D.C., Published by Alta Press, 1993. Wilkinson, Allen P. Nursing Malpractice. June 1998 (cited 2002). Available from http://www.findarticles.com

FURTHER STATUTES AND RULES FOR REFERENCE

TEX. REV. CIV. STAT. art 4590i. Medical Liability and Insurance Improvement Act.
Texas Rules of Civil Procedure [T.R.C.P. 166].
Texas Rules of Civil Procedure [T.R.C.P. 167].
Texas Rules of Civil Procedure [T.R.C.P. 168].
Texas Rules of Civil Procedure [T.R.C.P. 190].
Texas Rules of Civil Procedure [T.R.C.P. 192.4].
Texas Medical Practice Act, TEX. REV. CIV. STAT. art. 4495b, §5.08 (Vernon's Pamph. 1999).

APPENDIX A
Notice Letter (Texas Version)

I have been retained by Mr. Smith in connection with services provided by you and your institution.

Pursuant to Section 4.01 of the Texas Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat.Ann.Art.4590i Section 4 (Vern.Sup. 1990), this letter constitutes the required notice that a malpractice claim is being made against you. In accordance with Section 4.01, I am hereby making request for all medical records in your control or your institutions control concerning the nursing care rendered by you. I have enclosed a copy of the required medical authorization that was sent to the institution where you are employed and have requested that such records be made available within ten days of the date of this request, as required by statute.

Since it has been my experience that many potential claims against doctors, nurses, hospitals or clinics may be resolved following an explanation by the attending physician, nurse, appropriate hospital or clinic spokesman, I would welcome any comments you have in this regard. The law requires me to refrain from filing suit for 60 days following this notice. I am looking forward to hearing from you prior to that time.

Thank you very much for your cooperation.

Very truly yours,
IMA GOOD
Attorney at Law