IMAGINE YOU'RE documenting at the nurse's station when a stranger approaches and asks for you. When you identify yourself, he thrusts some legal papers into your hands. Baffled, you ask, "What's this all about?" He replies, "You've just been served with a summons."
To your dismay, you learn you're being sued for malpractice. How should you respond?
Many nurses have a nagging worry that they'll be sued for malpractice someday and have no idea how to respond. Because your immediate response can significantly affect the lawsuit's outcome, review the following tips and guidelines.
Don't delay
Even if you believe the case is completely without merit, take action immediately. Failing to respond within 20 to 30 days in most jurisdictions could result in a judgment against you.
How you respond depends on various factors, including whether or not you have insurance through your hospital employer and/or personal professional liability insurance. If you're covered by your employer's insurance, immediately contact personnel in the hospital's risk management or legal department. They'll coordinate your response with the hospital's.
If you have your own professional liability insurance, read the section in the policy that describes what to do if you're sued, including whom to notify and how much time you have to notify your claims representative or give official notice to your insurer. Immediately telephone this person with the information. Document the time of the call, the representative's name, and his or her instructions. Then hand-deliver the lawsuit papers to the representative, if possible, and get a signed and dated receipt. Alternatively, send the papers by certified mail and request a return receipt. These precautions protect you in the event of a misunderstanding: If you don't contact the appropriate person within the specified time, the insurance company could refuse to cover you.
Next, find the right attorney
If your hospital is named in the lawsuit, its insurance company may supply an attorney to defend you as the hospital's employee. If the hospital's attorney is representing the hospital's interests, however, you should have a separate attorney to represent your interests (which in some cases may conflict with the hospital's).
If you're sued alone, your insurance carrier may appoint a defense attorney to represent you. Be sure to find out how much experience this attorney has defending clients sued for malpractice. If he or she is inexperienced or has handled too many cases that were decided against the defendant, you have the right to ask for another attorney.
If you're uninsured, you'll have to find an attorney on your own. For recommendations, consider consulting with your hospital's legal services department, your state nurses association, an appropriate professional organization, or the local bar association.
Work closely with your attorney
Establishing a good working relationship with the attorney is crucial. It's your job to educate your attorney about the clinical information he or she will need to defend you. Be prepared to spend many hours reviewing medical records, licensing requirements, hospital policies and procedures, your qualifications, and the details of the case. Here are some pointers:
* Give your attorney and claims adjuster all the information you can about the case, including anything you remember about the incident, however trivial it seems. Let your attorney decide whether it's relevant.
* Provide your attorney with the nursing practice standards for your specialty and facility.
* Discuss whether you'd consider settling out of court versus going to trial.
* Develop a list of experts qualified to testify on the standards of care in your specialty. Avoid recommending friends, however, because a jury is likely to consider them biased in your favor.
* Review all available records, including those obtained by your attorney that are normally inaccessible to you, such as a private physician's patient medical records.
* Maintain your own file on the case. Ask for copies of all relevant documents and reports from your attorney, the claims adjuster, and the plaintiff's attorney.
* Regularly check with your attorney about the status of your case, which may not be resolved for many months or even years.
Mum's the word
Finally, don't talk about the case with anyone but your legal team. If you're contacted by the plaintiff, relatives or friends of the plaintiff, or the plaintiff's attorney, don't talk with them. You should respond only through your attorney.
You may never need this advice, but forewarned is forearmed. Until next time, keep it legal!
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