What to do if named in a malpractice suit The first step the nurse should take is to inform their employer. Then the nurse needs to ask the following questions and be sure to receive clear answers (Wacko Guido, 2020): ● Am I covered by the organization’s malpractice insurance policy? ● Up to how much in damages will the malpractice policy pay? ● Will the organization’s attorney represent me in this lawsuit? Case study #6 Olivia is a critical care nurse. She is certified in that specialty and is familiar with the scope and standards of practice as they relate to critical care nursing. Olivia has worked in a large metropolitan medical center for 10 years as a critical care nurse. In this setting, Olivia has fulfilled her role as a critical care nurse to the maximum level within the standards legally and ethically allowed. Recently, because of family needs, Olivia moved to a rural area served by a large community hospital. Hospital policies and procedures prohibit Olivia from performing some of the critical care procedures that she did in her previous work setting. Olivia is very upset about this and has complained, vehemently, to the nurse manager of the critical care unit. The manager sympathizes with Olivia but explains that change comes slowly to this facility. She suggests that Olivia form a task force to help provide evidence regarding the procedures now prohibited, showing that they are within the properly educated and trained critical care nurse’s legal realm of practice. The manager promises to be part of the task force and to help develop and support any necessary training and education for Olivia’s critical care colleagues. Olivia is frustrated: “It’s not my job to show these outdated people how stupid they are being!” One evening Olivia performs a procedure that, although within her scope of practice, is prohibited by hospital policy. The patient suffers a life-threatening complication. Questions: 1. Can the family bring a lawsuit against Olivia and the hospital? Why or why not? Giving a deposition A nurse named as a defendant in a malpractice lawsuit should expect to give a deposition. A deposition is “sworn pretrial testimony in response to written or oral questions and cross- examination, recorded by a certified court reporter.” Depositions are taken from the plaintiff (patient or family), other defendants, and expert witnesses for both the plaintiff and the defendant. A written, audio, or video record is made of the testimony given during the deposition. Testimony is given under oath, meaning that the persons involved swear that the testimony they are giving is truthful. If the person lies, then perjury has been committed (Wacko Guido, 2020). Nursing consideration: The information provided during a deposition can be used during the actual malpractice trial. Testimony given during a deposition that differs from testimony given during the trial may be a point of controversy during the trial. Such differences may have an adverse impact on any or all parties involved in the lawsuit. The credibility of the person whose testimony at the trial differs from the testimony given during the deposition could be damaged (Wacko Guido, 2020). Here are other key points about giving a deposition (Wacko Guido, 2020): ● Depositions given by the defendant are meant to clarify what the patient’s medical record contains (documentation by the defendant) and what the defendant intends to say as part of their testimony at trial.
● May I hire my own attorney? Even if the nurses are covered by the organization’s malpractice insurance policy, it might be wise to consult with a personal attorney. It might be important to have legal counsel whose first and only priority is the nurse, not the employing healthcare organization. 2. If the family can bring a lawsuit against Olivia and the hospital, do you think all elements of malpractice will be met? Discussions: Yes, the family can bring a lawsuit against Olivia and the hospital. While anyone can file a lawsuit, in this case there is potential malpractice. For malpractice, there needs to be a duty, breach of duty, harm, and causation. Olivia had a duty to care for the patient following the hospital’s policies and procedures. While Olivia could perform the procedure in her original hospital, there were no policies in place for her to perform the procedure in the current hospital. Thus, by breaking the scope of care at the hospital , she breached her duty to the patient. Even if a NPA says an RN can do something, if the hospital has a policy that prohibits it, the nurse is obligated to follow the hospital policy. Hospital policy can restrict scope of care but cannot expand it larger than the state’s nurse practice act. Yes, there was harm. The patient suffered a life-threatening complication and there was causation due to the fact the harm was caused by the procedure. So yes, all elements of malpractice have been met. The nurse should not discuss the case with anyone except the attorney who is representing them (Wacko Guido, 2020). This includes other defendants and close friends. Discussing the case with even close friends may lead to problems later if these close friends indulge in gossip about the lawsuit or are called to testify against the nurse/defendant. Suppose a nurse is not being represented by the healthcare organization but by an attorney they have hired. In that case, the nurse may be told not even to discuss the case with their employer (Wacko Guido, 2020). ● Depositions given by expert witnesses are meant to examine the scope of the experts’ opinions. ● Before the deposition, the nurse’s attorney will provide the nurse with advice and guidance as to how they should conduct themselves. The attorney will also review with the nurse the patient’s medical record and questions likely to be asked by the patient’s/plaintiff’s attorney. The attorney will also explain which documents and discussions do not have to be answered - such as information about incident reports. Nurses and other defendants should follow the advice of legal counsel carefully. Deviating from such advice such as discussing the case with friends can have serious consequences. ● During a deposition, in addition to the patient’s/plaintiff’s attorney and the nurse’s/defendant’s attorney, other people may be present such as the patient, the patient’s family members, and lawyers who represent other defendants in the case. ● During the deposition, the nurse will be asked about their background, education, nursing experience, and the care provided to the patient/plaintiff.
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