What To Do If You Are Sued

Being sued for malpractice is one of the most traumatic experiences a nurse can have. Regardless of one's guilt or innocence, receiving notification of being sued and the events that follow are not only traumatic but time consuming and expensive.

"Civil suits are brought for many reasons. Some are brought to enjoin an activity or challenge a law, but most-like malpractice suits-seek money damages" (Cushing, 1985, p.655). Shea (1993) notes that the genesis of a suit is a patient, dissatisfied with care, who contacts an attorney for redress. "If the attorney determines that the four elements of a medical malpractice case are present- the duty to provide care, a breach of the duty, an injury, and proximate causation - the attorney will probably notify the defendant or defendants of the allegation and attempt to negotiate a settlement. If no settlement is reached, the attorney will prepare to file the lawsuit" (Shea, 1993, p. 85).

Aiken and Catalano (1994) note that damages suffered by a plaintiff can be "hard" and "soft" damages. Hard damages include medical expense, funeral bills, and lost wages. Soft damages are generally intangible and can include pain and suffering and loss of consortium.

A lawsuit (suit) begins with the serving of a summons or copy of the suit upon the defendant (nurse). The suit will have been filed by the plaintiff (patient). After keeping a copy for his/her own records, a copy of the summons should be forwarded to whoever was the nurse's employer at the time the care was given to the patient and a copy should be forwarded to the nurse's professional liability insurance agent.

Upon receiving notification of the suit, the nurse defendant should take time to think about the incident and write down all aspects of the incident that come to mind. The notes should include the "who, what, when, where, how, and why" of the circumstances. The patient's chart might be consulted. All dates, times, places, and people involved should be part of the nurse's anecdotal documentation.

The nurse should notify his/her professional liability agent or insurance carrier and document the conversation including the following: who was called, the date, time, and what was said and the next steps the nurse should take. The employer's risk manager should also be notified verbally and in writing. As this is a highly emotional time, documentation can assist in ensuring that all who might have a role in assisting the nurse through the process are notified. While the nurse will be tempted to talk about the suit with others, it is important not to discuss the case with anyone but the nurse's insurance agent and claim representative, attorney, and employer's risk manager. Under no circumstances should the nurse discuss the case with the plaintiff (patient), plaintiff's family, plaintiff's attorney, news media, or individuals who might be witnesses for the plaintiff.

Insurance Carrier

The insurance agent will forward a copy of the suit to the insurance carrier. The carrier will begin a file on the case by entering the facts into a computer data base. The insurance carrier will cross check to determine if other claims are pending for that patient. As multiple healthcare providers are involved with the care of a patient, the carrier may already have a file open for another professional that also has been sued by the same patient.

Next, the carrier assigns a claim representative to handle the case. The skills of the claim representative are matched with the facts of the case to ensure that the most qualified staff member handles the case. If there are several claims from the same patient, the carrier will check to see if there is any conflict in having the same claim representative handle the lawsuit for all the insured(s) (defendants). If there is any indication by an insured that another insured is liable, a different claim representative is assigned to protect each insured. If there is agreement among the insured and the carrier that no one is at fault, or the fault lies with a defendant not insured by the nurse's professional liability carrier, one claim representative will handle all of the claims against the insured(s).

The assigned claim representative will then contact the nurse. The contact occurs 24 to 48 hours after the carrier has been notified of the lawsuit. The claim representative will interview the nurse by telephone and get as much information as possible about the incident. The claim representative will explain what the insurance policy will cover. The claim representative will contact any other insurance carriers that might be providing, or should be providing, coverage for the nurse (e.g. employer).

Legal Counsel

Upon confirmation of insurance coverage, the claim representative will advise the nurse what law firm will be used to represent him/her. The attorney will have expertise in the field of medical malpractice defense. At any one time insurance companies are handling hundreds of law suits across the country and, as a result, have negotiated representation fees with one or two law firms in a geographic locale. Fee schedules assist the insurer to manage the costs of litigation which can be millions of dollars per month and, thus, impact the cost of the nurse's professional liability insurance.

Once legal counsel is assigned, the attorney will contact the nurse. Counsel will interview the nurse to become more familiar with the case. The nurse will want to become comfortable with the attorney too. The nurse might want to ask the following questions:

• What are your credentials?
• How many cases of this type have you handled?
• How many have you taken to trial?
• What outcomes have you achieved?

If the nurse is not satisfied with the attorney assigned to the case, the claim representative should be notified at once. The insurance carrier wants to provide excellent customer service and wants a qualified attorney to handle the nurse's case.

The claim representative should provide the nurse defendant with a written letter outlining how the claim will be handled. For example, the letter will identify the law firm that will defend the insured. If an investigator is used, the letter will identify the investigating firm. Any coverage issues related to the insurance policy will be described and how the issues have been resolved will be detailed.

During this time there will be an investigation of the facts underway by the plaintiff and defendant's counsel. This is called the discovery period. While the counsel representing the nurse will interact informally and regularly with the nurse, counsel for the plaintiff (patient) must use more formal means of obtaining information from the nurse. For example, the patient's attorney might submit a list of written questions to be answered by the nurse. The nurse should answer the questions only in consultation with his/her counsel. The nurse might have to give a deposition. This process is conducted in the presence of all attorneys and a court reporter is used to record the answers to all questions. All information gathered will be used to try to reach a settlement or to ready the case for trial.

Settlement

Each case should be evaluated by the insurance carrier on its merits. In examining the merits of the case, the carrier will make every effort to determine who is liable (i.e., who is at fault). The insurer will try to decide:

• What is the appropriate standard of care?
• What would a reasonable, prudent person have done under these circumstances?
• Was the appropriate standard of care applied?
• Was there a breach in the standard of care?

As others are often involved in the case, the carrier will try to identify the insured's fault in percentages. For example, the insured was 10-20% at fault. Next, the carrier will evaluate the dollar amount that the case is worth. This determination will be based on experience, advice of counsel, previous jury verdicts in similar cases, laws in the jurisdiction or location of the claim, and the socioeconomic group of the plaintiff. The carrier will consider the ability of culpable parties to pay the claim and examine the potential for an excess verdict against the nurse. Taken together, these factors result in a decision about paying a claim when the insurer thinks the insured has some fault.

Cases may also be settled even when the insured is not at fault. Again, the case is evaluated on its merits. Some cases may be settled based purely on economics, particularly in smaller value claims. Other cases might be settled because the insured would make a poor witness on his/her own behalf or because the medical record may not support the nurse's action (e.g., treatment given and not charted).

Cases may be settled to avoid the risk of a jury verdict. Jury verdicts are very difficult to predict and some awards might far exceed the value of the case.

Nurses naturally wonder how much say they have in whether or not a case is settled or taken to trial. Many insurance policies include language that requires the insured to consent to any settlement prior to the insurer entering into a settlement agreement. Some state statutes require the insurer to obtain the consent of the insured. There are other instances in which the insurer has the final say in a settlement decision. Nurses should always make their views about settlement known to their lawyer and claim representative.

Trial

When settlement negotiations are unsuccessful, the case will be scheduled for a trial. Shea (1993) notes that courts are so backlogged in many jurisdictions that it may take years for a court date to be set.

At a trial, the plaintiff presents evidence and witnesses in an effort to prove that the defendant is guilty of malpractice. Aiken and Catalano (1994) report that the next steps after selection of a jury is for each side to present opening statements to summarize the position of each party. As the plaintiff has the burden of proof, the plaintiff s case is presented first. "Evidence must be sufficient to meet the four elements of negligence in order to be successful: duty, breach of duty, causal connection, and damage" (Aiken and Catalano, 1994, p. 92).

The plaintiff will present evidence and witnesses related to standards of care, policies, procedures, and medical records. Witnesses are questioned by the plaintiff s attorney and cross examined by the defendant's counsel. Once the plaintiff concludes, the defendant has the opportunity to present evidence and witnesses to disprove the plaintiff s allegations. According to Aiken and Catalano (1994), after the defendant rests, the defense can move for a directed verdict against the plaintiff for not meeting the burden of proof or making a valid case. Should the court agree, the trial ends. If the court does not agree, the trial continues; the jurors hear any additional evidence and closing arguments; and the jury deliberates and renders a verdict. "If the trial is a judge trial, the judge renders a judgment immediately or takes the matter under advisement and renders a judgment after reviewing trial materials or trial briefs submitted by counsel" (Aiken & Catalano, 1994, p. 93).

The verdict may be appealed. Should the verdict be against the nurse, then the nurse, counsel and insurer will determine the next steps.

Testifying

During the course of a career, a nurse might be called upon to testify in a trial on his/her own behalf as a defendant or as an expert witness on behalf of a plaintiff or other defendant. Giving testimony can be a terrifying experience. However, in-depth preparation can help alleviate those fears. Do's and don'ts of testimony, adapted from Myers and Fergusson, (1989, pp. 45-46) are as follows:

The dos:

• Get a good night's sleep the night before the testimony.
• Dress appropriately. If you want to be recognized as a professional, look like one.
• Have a clear understanding of the facts of the case.
• Speak clearly, directly, and honestly with short, unemotional answers. Sarcasm and wisecracks should not be a part of the testimony.
• Think about what to say before saying it. Do not blurt out an answer. For example:
  1. If you are asked a question about a document, don't hesitate to ask to see the document before responding to the question.
  2. If you are asked a hypothetical question, note the differences from the actual case before responding to the question.
• Answer the question asked of you. Nurses, often use rephrasing techniques in practice to elicit information from patients. This technique should not be used when giving testimony. Keep in mind, the witness is to answer questions, not to ask them.
• Stay alert. If you are tired and need a short break, ask for one. This is an accepted practice for witnesses.

Do what your attorney advises. If you are concerned about a line of questioning, explain your concerns to your attorney during a break.

The don'ts:

• Don't guess. If you don't know the answer, say so. It is better to admit to a gap in knowledge than to give the wrong answer.
• Don't waste energy trying to anticipate what the plaintiff s attorney is leading up to. (If you are a witness for the plaintiff, the attorney should have briefed you fully prior to the testimony.)
• Don't apologize. If you don't remember what happened, say "I don't recall."
• Don't be caught off guard. Attorneys use different approaches. For example, an attorney might switch from a hostile manner to a soft spoken one or from a friendly attitude to an unfriendly one in an effort to manipulate the witness.
• Don't be defensive. Tell the truth in an open, straightforward way.
• Don't be evasive.
• Don't answer off-the-record questions.
• Don't take any documents to a deposition or other session that you were not asked by counsel to bring.
• Don't use medical jargon. Speak in laymen's terms. Don't try to convince the lawyers; try to convince the jury or judge.
• Don't volunteer new information.
• Stick to what has been agreed to with counsel.

The Results

As noted earlier, a judge or jury may render a verdict at the end of a trial if no settlement has been reached. A verdict might be no culpability for the nurse or the nurse might be found guilty of malpractice. In either instance, the cost of defense will have to be paid for. Nurses who carry liability insurance should look to their insurance carrier to cover the cost of their defense.

A monetary award might also be issued by the court. Awards can be for a small amount or a considerable sum. Again, the insured nurse will look to the insurance carrier for payment of a covered claim.

Reporting The National Practitioner Data Bank (Data Bank) was created by the U.S. Congress. The Data Bank collects licensure action, adverse clinical privilege actions and adverse professional society membership actions. Medical malpractice payers must submit reports to the Data Bank and the appropriate State licensing board within 30 days of making a payment. Hospitals and other healthcare groups such as professional associations must report to the Data Bank within 15 days of taking action against a practitioners. While a healthcare practitioner cannot change a report, the practitioner can add a statement to the report, e.g. to dispute the accuracy of the report.

While the Data Bank is prohibited from disclosing information on a specific practitioner to a medical malpractice insurer, defense attorney, or member of the general public, hospitals must query the Data Bank when a practitioner applies for privileges and every two years for practitioners on the medical staff or holding privileges. State licensing boards may query the Data Bank at any time on healthcare practitioners and healthcare professionals may self-query at any time.

Summary

Being sued for malpractice is a difficult and unnerving experience for nurses. Malpractice insurance, competent legal counsel, and knowledge of what to expect at each step along the way can assist the nurse in dealing with this very difficult situation.

References

Aiken, T.D., & Catalano, J.T. (1994). Legal, ethical and political issues in nursing. Philadelphia: F.A. Davis Co

. Cushing, M. (1985). How a suit starts. American Journal of Nursing, 85, 655-656.

Myers, K., & Fergusson, P. S. (1989). Nurses at risk. Des Moines: HealthPro & Kirke Van-Orsdel, Inc.

Shea, M.A. (1993). Professional liability: A nurse's perspective. University City, MO: TIV, Inc.

Linda J. Shinn, MBA, RN, CAE, is Principal, Consensus Management Group, Fairfax Station, Virginia. Ventura, MJ (July-Aug 1999). Legal consult. What to report, and to whom. Office Nurse, 12(6), 31-3. Eskreis-Nelson, T. (Feb. 2000). Following the paper trail in a nursing malpractice case. "Journal of Nursing Law". 6(4), 7-14.

Laura L Curtin is Vice President Claim Director, Chicago Insurance Company, Chicago, Illinois.