Yikes! I’ve Been Named in a Lawsuit; What Do I Do Now!

Presentation of But Your Honor…the Nurse Said… or I was only doing my job.

Fall Conference September 22, 2013Lisa Zokas Kindy, JDUse by Permission

ANNA Long Island Chapter 122Presented by

Michael P. Luna, RN, DNP, MPA, NC-BC, CNNNurse Manager

Stony Brook Kidney Center, DCI East Setauket, NY

Number of Malpractice Allegations Against NP’s by year.

2007 2008 2009 20100

50

100

150

200

250

300

350

Series 1Column1Column2

Legal ActionsThe PartiesCivil Negligence

Plaintiff (patient) v Defendant (doctor, nurse, hospital etc.) for money damages.

Criminal Action State (Prosecutor) v Defendant (Perpetrator) for

punishment. A nurse was too good at predicting when patients

would expire. The hospital notified the police who came to the hospital and to the nursing unit and arrested and handcuffed the nurse. She was crying as she was led away. Fortunately, there were no basis to the allegations and she was released.

2009 CNA Health Pro & Nurse Service Organization: Malpractice Claims 1998-2008

Steady Trend Upward:Wrongful Death 40.5% of claims caused by

infection.Incorrect failure to diagnose 39%. Medication

Error 18%.Correlation with greater patient work loads,

handwritten medical records, and physician orders.

Top 3 Legal Problems Involving Nurses.Employment contract Issues-Non-compete

clauseFiring/Termination Issues-Social Network

comments, Medical Record Issues, Prescription Error.

Improper Incident to Billing-Physician fee or NP fee.

Medical Malpractice Law SuitDate of OccurrenceStatue of LimitationsComplaint and SummonsAnswerDiscoveryIdentification of ExpertsSettle, Mediate, Trial AppealAftermath

Law Suit Summons and ComplaintSummons –Invitation, limited time to answer.Complaint, Plaintiff (Patient) versus

Defendant(s) (Doctor, Nurse and Hospital)Service of ProcessContact your liability carrier immediately and

they will assign an attorney who will file your answer.

Settle, Mediate or TrialElements the plaintiff must prove:

Duty to deliver Standards of Care.Breach of dutyDamageProximate Cause

Standards of Care– what a reasonable Nurse would have done in like or similar circumstances.

Statue of LimitationsThe period of time from the date of the loss

the patient has to file the law suit, otherwise they are time barred.

Varies 1-3 years for an adult and 18 years for a child.

Identification of Experts If specialized knowledge will assist the jury

(trier of fact) to understand the evidence a witness qualified as an expect may testify in the form if an opinion.

It’s generally held that a nursing expert witness testify about the standard of nursing care.

Help your attorney find an expert on your behalf, and assist in critiquing plaintiff’s expect.

$DamagesEconomic—lost wages, cost of medical care,

life care planningNon-economic—pain and suffering, loss of

consortium.Punitive—deterrent or punishment amount

for willful reckless conduct.

Deposition Set UpAttorneysDeponentPlaintiffCourt ReporterVideographerMedical RecordYour personal documents.

Discovery DocumentsRequests for Medical RecordsAre you familiar with the documentation

guidelines for your dialysis clinic?Documentation by ExceptionIf it wasn’t documented it wasn’t done.Forms, BlanksHabit and Training.

Discovery DepositionReading the Medical RecordDiscussion of other documentsIndependent RecollectionExplanation of your job, medical knowledge

and actionsOther participants with knowledgeYour Demeanor

Seeing the PlaintiffRange of Emotions

AnxietyConfusion (Why did they include you in the

suit.)It is important to keep your anxiety in check.

Your ResumeThey may request your ResumeThey will ask you if it is current.They will ask you to explain what your

responsibilities were in the various jobs you held.To establish your knowledge and experience.

Education Certifications.

Dialysis Clinic OperationsWhat was your role in the dialysis clinic?Who was your supervisorDid you have a job descriptionWhat were your responsibilitiesIs there any in-service training?What were the responsibilities of the Medical

Director, Nurse Practitioner, PCT’s.

Event TestimonyDo your recall treating Mr. Patient?

No I do not. So you have no independent recollection of Mr.

Patient? Your entire memory of Mr. Patient is contained in

the record?Yes, I do

Tell me about what happened. How long had you treated Mr. Patient? How did he appear to you.

Specific Questions-Discussion Not Legal AdviceWhen do I buy my own malpractice insurance?Could I be responsible if someone else did not chart

what they were supposed to do?What do I do if the patient is non-compliant or has

unrealistic expectations?The equipment malfunctions all the time, who do I call?I think I need to call someone but what do I do?How do I document my phone conversations with a

patient?How do I document that I called the MD, or my

supervisor?How do I report an unexpected outcome?

Flow SheetDo you recall going over the flow sheet? Is this

something you ordinarily do?How would you know how much volume was

taken off? Where is that determined?Where is the section that shows the vital signs?Where is the section that shows weight?What is the translation from kg to pounds?What is wet weight? What is dry weight?What is the weight goal you are trying to achieve?Who decides the goal weight?

Risk Management-Education and TrainingWork in an environment that is proactive.Job training. Orientation and updates.Keep abreast of new medical knowledge and

Guidelines. (Societies and Meetings).Take a class. Teach a class. Give a

presentation.Document in your CV and update.