What Happens If I Get Sued for Malpractice?

“Katie” went to her mailbox and found a card stating that the mail carrier had tried to deliver a certified letter from her county court. She thought, “What could the court possibly be sending to me?” Curiosity was getting to her as she hopped in her car to drive to the post office, where she retrieved the letter and immediately opened it.

Her face turned white as a ghost as she saw the word “subpoena” and read the attached complaint of a situation two years earlier that listed her as defendant in a lawsuit. The complaint said that Katie and the hospital staff breached the standard of care and caused damage to this patient.

Katie was horrified. She didn’t even remember the name of the patient now listed as the plaintiff on the paper. Shaking and sobbing, she was in complete and utter shock!

She wondered if she should call her own malpractice insurance carrier and decided it was a good idea. Even though employers are responsible for their employee’s actions, there are certain benefits for nurses having their own malpractice insurance, such as the right to have their own attorney and reimbursement for disciplinary defense for any actions against the nurse’s license to practice.

What is Negligence?

The day stretched on and finally Katie received a call from the hospital’s attorney and the lawyer referred by her insurance, who was also a registered nurse herself, a.k.a. a nurse attorney. Katie’s attorney sat her down and explained everything to her. She said that “medical malpractice” is simply a term for “negligence” which is a civil wrong. Since an employer is responsible for the actions of their employees, the hospital will be responsible for Katie’s actions, provided she was acting within the scope of her responsibilities.

There are four elements to malpractice: duty, breach, cause and harm. All four elements must be present in order for a person to prevail in a lawsuit. For example, if you were driving a car, you have a duty to come to a halt at the stop sign, If you run the sign and do not cause any harm, you might get a traffic ticket, but that is not negligence. However, if you miss the sign and hit a car causing injury to the passengers, then you have duty, breach, cause, and harm.

The attorney went on to say that malpractice is negligence for professionals. Duty is what those acting under same or similar circumstances would do. As a nurse, if a patient has a medication order for Aminophylline and the nurse gives Ampicillin and the patient is not allergic, then there is a breach of duty to give the right medication, but no cause or harm.

However, if the nurse gives Ampicillin and the medication ordered was Aminophylline and the patient has an allergic reaction, then there is duty, breach, cause and harm, because those acting under same or similar circumstances would not have given the incorrect medication.

In this case, the nurse attorney explained that Katie’s patient fell during her stay in the ICU. The patient hit her head and the next day developed a subdural hematoma and had to be taken to surgery to have the hematoma evacuated. Katie had documented very thoroughly that this patient was a fall risk and that she had opened the drapes in her room so she could watch her. However, what was not in the notes is that Katie went to lunch and reported off to another nurse. During her lunch break, evidently the nurse covering for Katie did not watch the patient as closely and the patient did fall.

The Discovery Process

Her nurse attorney discussed with Katie that the first part of any malpractice lawsuit is called “discovery.” There should be no secrets to a lawsuit. Each side has the right to discover the information known by the other side.

There are different types of discovery.

1. “Interrogatories” -questions that must be answered under oath by the other Party.

2. “Request for Production of Documents” -either Party can request of the other any documents needed for their case. They are not restricted to medical records but anything that can assist with the identification of information in the case, such as employment files, staffing sheets and timecards or any other document that a hospital might have that would help someone to gather information about the case.

3. “Request for Admissions” – either Party can ask the other to admit certain facts in the case.

4. “Depositions” – either Party or witness can be asked by the other side to answer questions under oath with a court reporter present to record the questions and responses.

Once all information has been gathered, the Parties have an opportunity to hire experts to assist them in their case and to testify as to the standard of care. Katie’s nurse attorney mentioned that, if necessary, she will hire a nurse expert to testify to the standard of care which, in this case, would be one with expertise in fall prevention cases.

When all the information is gathered and the experts are disclosed to each other, the Parties can attempt to settle the case either on their own or through mediation. If the case does not settle, then there is the possibility that the case would proceed to trial.

Effects of a Malpractice Claim

Katie was reminded that if the case does proceed to trial, she will be prepared thoroughly and ready for the courtroom. The nurse attorney also cautioned Katie that if a settlement is made on Katie’s behalf, she would be reported to the National Practitioner Data Bank. The NPDB is a federal depository when any claim is paid on behalf of a health care provider so that any hospital or credentialing agency would know about the settlement. It is confidential as far as the public is concerned but credentialing bodies and hospitals can learn about the settlement.

Lastly, Katie was told that she may need to report this claim on her license renewal application and can work with a nurse attorney on that matter. Once reported, she may need to appear before the state Board of Nursing.

Katie’s nurse attorney reminded her that she would do everything she could to protect Katie’s interests. Considering this situation where Katie and the hospital are each named individually, their interests may be different. An advantage of having your own malpractice insurance in situations where your interest may be different from that of the hospital is that it allows you to have your own attorney.

Certainly, Katie would not want to be implicated in the settlement because she did everything she could to protect this patient until she went to lunch. There will be numerous questions about what information was given in report to make sure that the patient is safe. Because this information is not documented, it is important during the discovery phase to find out this information.

Katie learned so much about malpractice. She now knows the importance of documentation and to make sure that her patients are safe. She also knows how important it is to be prepared for a deposition or for trial because if a settlement is made on her behalf it could have significant ramifications with the National Practitioner Data Bank and the Nurse Licensing Board.

The best defense is to prevent a problem in the first place. Therefore, being pro-active and having good documentation certainly goes a long way. Once a matter is filed, the best defense is good representation!

Lorie A. Brown, RN, MN, JD, nurse attorney, is the founder and CEO of Brown Law Office, P.C. in Indianapolis. She concentrates her practice on representing nurses and other health care providers before the state Board of Nursing. If you would like to learn more , go to www.yournurseattorney.com.

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