Yikes! I’ve Been Named in a Lawsuit; What Do I Do Now!

1. Yikes! I’ve Been Named in a Lawsuit; What Do I Do Now! Presentation of But Your Honor…the Nurse Said… or I was only doing my job. Fall Conference September 22, 2013 Lisa ZokasKindy, JD Use by Permission ANNA Long Island Chapter 122 Presented by Michael P. Luna, RN, DNP, MPA, NC-BC, CNN Nurse Manager Stony Brook Kidney Center, DCI East Setauket, NY

2. Number of Malpractice Allegations Against NP’s by year.

3. Legal ActionsThe Parties • Civil Negligence • Plaintiff (patient) v Defendant (doctor, nurse, hospital etc.) for money damages. • Criminal Action • State (Prosecutor) v Defendant (Perpetrator) for punishment. • A nurse was too good at predicting when patients would expire. The hospital notified the police who came to the hospital and to the nursing unit and arrested and handcuffed the nurse. She was crying as she was led away. Fortunately, there were no basis to the allegations and she was released.

4. 2009 CNA Health Pro & Nurse Service Organization: Malpractice Claims 1998-2008 • Steady Trend Upward: • Wrongful Death 40.5% of claims caused by infection. • Incorrect failure to diagnose 39%. Medication Error 18%. • Correlation with greater patient work loads, handwritten medical records, and physician orders.

5. Top 3 Legal Problems Involving Nurses. • Employment contract Issues-Non-compete clause • Firing/Termination Issues-Social Network comments, Medical Record Issues, Prescription Error. • Improper Incident to Billing-Physician fee or NP fee.

6. Medical Malpractice Law Suit • Date of Occurrence • Statue of Limitations • Complaint and Summons • Answer • Discovery • Identification of Experts • Settle, Mediate, Trial • Appeal • Aftermath

7. Law Suit Summons and Complaint • Summons –Invitation, limited time to answer. • Complaint, Plaintiff (Patient) versus Defendant(s) (Doctor, Nurse and Hospital) • Service of Process • Contact your liability carrier immediately and they will assign an attorney who will file your answer.

8. Settle, Mediate or Trial • Elements the plaintiff must prove: • Duty to deliver Standards of Care. • Breach of duty • Damage • Proximate Cause • Standards of Care– what a reasonable Nurse would have done in like or similar circumstances.

9. Statue of Limitations • The period of time from the date of the loss the patient has to file the law suit, otherwise they are time barred. • Varies 1-3 years for an adult and 18 years for a child.

10. Identification of Experts • If specialized knowledge will assist the jury (trier of fact) to understand the evidence a witness qualified as an expect may testify in the form if an opinion. • It’s generally held that a nursing expert witness testify about the standard of nursing care. • Help your attorney find an expert on your behalf, and assist in critiquing plaintiff’s expect.

11. $Damages • Economic—lost wages, cost of medical care, life care planning • Non-economic—pain and suffering, loss of consortium. • Punitive—deterrent or punishment amount for willful reckless conduct.

12. Deposition Set Up Attorneys Deponent Plaintiff Court Reporter Videographer Medical Record Your personal documents.

13. Discovery Documents • Requests for Medical Records • Are you familiar with the documentation guidelines for your dialysis clinic? • Documentation by Exception • If it wasn’t documented it wasn’t done. • Forms, Blanks • Habit and Training.

14. Discovery Deposition • Reading the Medical Record • Discussion of other documents • Independent Recollection • Explanation of your job, medical knowledge and actions • Other participants with knowledge • Your Demeanor

15. Seeing the Plaintiff • Range of Emotions • Anxiety • Confusion (Why did they include you in the suit.) • It is important to keep your anxiety in check.

16. Your Resume • They may request your Resume • They will ask you if it is current. • They will ask you to explain what your responsibilities were in the various jobs you held. • To establish your knowledge and experience. • Education • Certifications.

17. Dialysis Clinic Operations • What was your role in the dialysis clinic? • Who was your supervisor • Did you have a job description • What were your responsibilities • Is there any in-service training? • What were the responsibilities of the Medical Director, Nurse Practitioner, PCT’s.

18. Event Testimony • Do your recall treating Mr. Patient? • No I do not. • So you have no independent recollection of Mr. Patient? • Your entire memory of Mr. Patient is contained in the record? • Yes, I do • Tell me about what happened. • How long had you treated Mr. Patient? • How did he appear to you.

19. Specific Questions-Discussion Not Legal Advice • When do I buy my own malpractice insurance? • Could I be responsible if someone else did not chart what they were supposed to do? • What do I do if the patient is non-compliant or has unrealistic expectations? • The equipment malfunctions all the time, who do I call? • I think I need to call someone but what do I do? • How do I document my phone conversations with a patient? • How do I document that I called the MD, or my supervisor? • How do I report an unexpected outcome?

20. Flow Sheet • Do you recall going over the flow sheet? Is this something you ordinarily do? • How would you know how much volume was taken off? Where is that determined? • Where is the section that shows the vital signs? • Where is the section that shows weight? • What is the translation from kg to pounds? • What is wet weight? What is dry weight? • What is the weight goal you are trying to achieve? • Who decides the goal weight?

21. Risk Management-Education and Training • Work in an environment that is proactive. • Job training. Orientation and updates. • Keep abreast of new medical knowledge and Guidelines. (Societies and Meetings). • Take a class. Teach a class. Give a presentation. • Document in your CV and update.