Many Misconceptions on ED Nursing Liability

Successful suits are actually rare

The vast majority of emergency nurses, during their entire career, will never be involved in a lawsuit, even as a witness, much less as a named defendant, according to Edie Brous, RN, Esq., a New York City-based nurse attorney. "There are many misperceptions about liability exposure," she says. "Although the fear of liability has increased, actual lawsuits, in fact, have not."

The vast majority of patients do not sue their providers, even when harmed by them, and suits against nurses, in particular, remain rare. "Despite the popular narrative, most nurses do not even know another nurse who has been sued," says Brous.

About two-thirds of filed medical malpractice suits are settled or dismissed and do not survive to trial, Brous notes, adding that for an ED nurse to be successfully sued by a patient, all of these conditions have to occur:

• An injured patient has decided to sue the nurse and has convinced an attorney of a meritorious complaint before the statute of limitations has expired.

• The attorney has agreed to accept the case and have the records reviewed by an expert. "Despite pervasive rhetoric about 'frivolous' or 'junk' lawsuits, plaintiff's attorneys incur the cost of litigation, and do not accept cases they don't believe they can win," says Brous,

The case, if won, must be capable of obtaining a high enough award to compensate the attorney for the considerable expenses he or she will bear. "Plaintiff's attorneys are also constrained by ethical requirements and potential sanctions for bringing non-meritorious claims," says Brous.

• The attorney is able to secure an "Affidavit of Merit" or "Physician's Affidavit" or "Certificate of Merit."

This is an affirmation, under oath, by a board certified physician stating that the medical records and complaint were reviewed and, in the physician's opinion, to a reasonable degree of medical certainty, the claim is not frivolous, but at least contains a question of fact that should go to a jury. "In the absence of this Certificate of Merit, the case will be dismissed," says Brous.

• During the discovery period, which may include depositions, document exchange, inspection of the medical records, and independent medical examinations, enough evidence is obtained that the attorney believes he or she can convince a jury that the ED nurse deviated from the standard of care and that this departure was the cause of the patient's injury.

• The attorney is able to secure a qualified expert witness who will testify, under oath, as to the standards of practice — what a reasonable ED nurse would have done in same or similar circumstances.

"The attorney must also able to secure an expert witness who will testify that the ED nurse's departure from those standards was the cause in fact of his client's injury," says Brous.

• The case isn't dismissed or settled, and goes to trial, and the jury returns a verdict against the ED nurse.

• The verdict survives an appeal and the nurse is then ordered to pay the plaintiff a certain amount in damages.

"Although rare, a lawsuit against an ED nurse is a very stressful, even traumatic experience," says Brous. "The most serious harm a sued nurse incurs may very well be emotional and psychological, not professional or economic."

In addition to the financial costs from the damage award, legal fees, and time off the job, the nurse may also need to pay a licensure defense attorney for representation before the Board of Nursing, and settlements and/or plaintiff's verdicts may be reported to the Board of Nursing, triggering a disciplinary investigation. "Potential professional harm to the ED nurse is not nearly as worrisome from a lawsuit as it is from licensure discipline," says Brous. "That is the main reason nurses need to maintain their own professional liability insurance."

Potential for More Liability

ED nurses enter the profession because they want to be the first to intervene immediately to help someone who is in trouble, says Paula Mayer, RN, LNC, a partner at Mayer Legal Nurse Consulting in Saskatchewan, Canada. This rapid intervention can lead to errors, which can lead to liability."With increased scope of practice comes an increase in responsibility, an increase in accountability, and the potential for an increase in liability," says Mayer.

Going through the court process means the emergency nurse has his or her practice put under scrutiny, with continual reminders of the impact the error had on the patient and family.

"Imagine being on the stand and having to admit that we messed up and hurt someone, which is the last thing any of us intend to do. It remains one of the worst things that can happen to you as a nurse," says Mayer, adding that some nurses leave the profession because they are terminated or have their licensure revoked, or because of the emotional devastation caused by the experience of being sued.

Get Independent Counsel

Since the facility attorney's first priority is to protect the institution, not the individual emergency nurse, says Mayer, nurses should retain their own independent counsel as soon as possible if named in a lawsuit launched against his or her institution. Court decisions may also be reported by the legal system to state licensing bodies, and trigger discipline up to and including revoking a nurse's license to practice. The single most effective thing an emergency nurse can do to reduce liability is to hone interpersonal skills, advises Brous. "The manner in which a patient is treated determines, more than any other factor, whether that patient will want to sue a provider," she says.

Sources

For more information, contact:

• Edie Brous, RN, Esq., Nurse Attorney, New York, NY. Phone: (212) 989-5469. Fax: (646) 349-5355. E-mail: EdieBrous@gmail.com.

• Paula Mayer, RN, LNC, Partner, Mayer Legal Nurse Consulting, Kamsack, Saskatchewan, Canada. Phone: (306) 590-8980. E-mail: info@mayerlegalnurseconsulting.com. Web: www.mayerlegalnurseconsulting.com.