MOST OF MY ARTICLES focus on avoiding legal pitfalls in your nursing practice. I try to present topics relevant to your daily practice, especially issues that might interfere with your ability to practice professional nursing. At the end of each article, I typically advise you to consult with an attorney in your current ZIP code if you have more questions. But this month, I'm changing tacks. This article focuses on the harsh realities of engaging in a legal action and the cost and burdens of moving the wheels of justice.
Romantic notions about the law
As a kid of the 80s and 90s, I enjoyed watching top-notch legal dramas on TV and the silver screen. I reveled in the smart writing, legal trickery, and punchline deliveries that made these legal soap operas so enjoyable. But TV and the movies have done lawyers and their potential clients a grave disservice by romanticizing the practice of law. Within the short span of a TV show-about 48 minutes-a plaintiff comes into the lawyer's office with complex legal problems, a big lawsuit is filed, a trial ensues, and justice is served. This cultivates unrealistic expectations about the legal system. In fact, the reality is often quite the opposite of this profoundly misinformed expectation.
Take this example as illustration. A prospective client comes to me after having suffered a work injury. This nurse is angry, in pain, recuperating to some degree, and quite possibly low on cash. The nurse wants to know how quickly he or she can be compensated for this pain and suffering. (After meeting some personal injury/workers' compensation clients for the first time, I've sometimes gotten the impression that they expect to leave my office with a check in hand!)
It's an instant gratification world and people expect instant justice. But even if you have a legitimate cause of action, the timeline is usually measured in months if not years.
Say, for example, you suffer a significant lower back injury on the job when you ease a collapsing patient to the floor. Last year, working hard as you do, you made $85,000. Your employer puts you on temporary total disability and sends you to the organization's medical provider for follow-up treatment. Your disability check is $650.00 per week, or $2,600.00 per month. Your preinjury salary was $7,100.00 gross per month. You have a mortgage, kids in school, car payments, groceries, the roof is leaking, and so on. You're facing a grave disparity in your preinjury and postinjury income. You reasonably wonder: Who's going to pay the difference? So, you go see a lawyer.
The lawyer reviews your case, medical records, your employers' actions to date (let's assume your employer is handling your injury in a completely lawful manner), your healthcare provider's recommendations for treatment, and your work capacity. All you want to know is how your bills are going to get paid while you're out of commission. You want justice. You didn't ask to get hurt. You did nothing wrong. Where's that big cash settlement that you hear about on all those lawyer commercials on TV?
Realistically, any settlement, if it occurs, is at the earliest at least one year away from the date of your injury. Why? Because, in most jurisdictions that use medical permanency as a guide to fixed injury, that's the law! If you're required to have surgery for your injury, that date just got pushed to a year or more from your surgery. And you'll likely have to go before the Workers' Compensation Board or an administrative law judge or labor referee some 14 months after your injury or surgery and have a full hearing to be awarded that settlement. To add to your pain, any judicial decision might not be rendered for 90 to 180 days after the hearing. And, as you may have guessed, your employer can appeal any finding, further delaying justice.
Disciplinary actions can drag on too
The same result occurs in other areas of the law that intersect with nursing practice. Imagine someone reported you erroneously or maliciously for unsafe nursing practice. You receive a notice of discipline and temporary suspension from the Board of Nursing. You request a hearing to reinstate your license and vindicate yourself. You hire a lawyer. A disciplinary hearing on your nursing license can take 3 to 6 months from the notice of discipline. A decision on your license status might issue 30 to 60 days after the hearing. Any appeals to the Courts could take 6 months or more to resolve. So, even if you ultimately prevail and your suspension is lifted, you could be out of work for a year. Meanwhile, who's going to pay all those lawyer fees you're incurring? A license defense, win or lose, will likely cost you several thousand dollars.
Finally, what if you're aggrieved by an action of your employer? Let's say, for example, a patient complains about you and the care you provided and threatens to report the hospital to the state, the Joint Commission, Press-Ganey, and the local newspaper. Your employer terminates you over the incident.
Let's assume you did nothing wrong and believe you were terminated unlawfully. If you're unionized, you proceed through the grievance process outlined in your collective-bargaining agreement (CBA). There are several steps in CBA grievances and they all take time.
If you're not in a union, your next step is to go to your state's Department of Labor (DOL) and file a charge of unlawful labor practice or unlawful termination. A DOL investigation can take 90 to 180 days.
Assume the investigation is completed by the DOL and you receive a determination in your favor along with a "right to sue" notice. You hire a lawyer. Your lawyer sues your employer. Prepare to spend the next year or two of your life watching this lawsuit wind its way through the court system. All the while, you could still be unemployed!
Do your due diligence
While TV commercials, advertisements, and the like may promise you all manner of free legal work, a nurse who wishes to engage an attorney should carefully read the contract of service (often referred to as a retainer/retention agreement). While your attorney may offer service on a contingent basis (meaning legal fees aren't recoverable unless you prevail in your action), you'll likely still be held responsible for court filing costs, administrative fees, and potentially all expenditures with the exception of your lawyers' time investment in the case, even if you ultimately lose the case.
So carefully consider the investment before leaping into litigation. You should spend the same time and effort seeking an attorney as you would to find any other professional in whom to place your trust. Ask questions of people whose opinion you value, look at bar association reviews, and check for disciplinary records (these are public).
Once you identify a lawyer with appropriate credentials, ask about the cost for an initial consultation (some lawyers offer free or reduced rates for the first meeting). Plan to spend a fair portion of your initial consultation asking questions about the strength of your case, possible outcomes, prospective costs, settlement before trial, and alternative dispute resolution (mediation/arbitration). Factor all these elements into your decision about whether to proceed with legal action.
It's a marathon, not a sprint
If ever there comes a time in your professional career or personal life that you find yourself invoking the power of the law, realize that the wheels of justice turn at an inordinately slow rate and that justice isn't always what you expect it to be. In fact, you may never receive what you think of as justice at all. In my years of legal practice, I've learned (and become somewhat disillusioned at times) that speed and justice are concepts divorced from one another and true justice is often very expensive.
In closing, if you engage the legal process, you've entered a marathon on a heavy gravity planet. It's not a sprint and don't expect to see the finish line in the near future. Stay safe and, above all, keep it legal!
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