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A Before you know that you have been named as a defendant in a lawsuit, a former patient of yours has determined that you in your role as a nurse did something that caused an injury to him or her. In most cases, this former patient will have consulted a lawyer who will review this patient’s medical records, talk to the patient, and make a decision if there are enough facts to support a lawsuit against you as a health-care professional.
Once a lawyer has determined that you may have been negligent, a lawsuit will be prepared that outlines the allegations the former patient has against you. These charges are called "allegations" because the patient has the responsibility to prove that these charges are, in fact, true. The party that brings charges has this "burden of proof." Once a lawsuit has been filed with the courthouse, your former patient has become a plaintiff and you have become a defendant. This is the first step in the litigation process.
As soon as a lawsuit has been filed at the local courthouse, the plaintiff must "serve" you with this lawsuit, that is, make sure that you receive the lawsuit so you have notice that you have been named as a defendant. Last month, this column discussed your response to being served a lawsuit for malpractice.
Do not try to answer a lawsuit on your own. It is important that a lawyer responds on your behalf because certain rules must be met and specific information must be included in your answer to the lawsuit. Answering a lawsuit on your own may jeopardize your case. Your lawyer will be hired by the malpractice carrier that provides liability insurance for you or your employer.
The longest and most important part of the lawsuit is called the "discovery" phase; that is, both sides are discovering facts and evidence to support their side of the lawsuit. In a medical malpractice lawsuit, the medical record is reviewed carefully in this phase. It is the only record the plaintiff’ s attorney has reviewed before filing a lawsuit against you, and it will sink or save you. The medical record is the deciding factor on whom to sue and for what. It will make it easy or difficult to defend your actions as a nurse. Also, this record, or lack there of, will refresh your memory regarding that care that you provided to the former patient, who is now a plaintiff.
After a careful review of the medical record, each side has a chance to ask questions, also called "interrogatories." These written questions are intended to obtain more detailed information regarding general background, education, and work history.
One of the questions will ask if you know of anyone else who has direct information or involvement in the "incident" that caused harm to the plaintiff. If you were a staff nurse who consulted with your nursing supervisor regarding the incident when you were providing nursing care to the plaintiff, and you were the only individual nurse named in the lawsuit, you will respond to this question by naming your supervisor. Consequently, just because you were not originally named as a defendant in a lawsuit, it does not mean that you may not be named later on as a "Doe" defendant. Every lawsuit reserves spaces for additional defendants to be added later on as more information and evidence are gathered.
Additional discovery tools include depositions and testimony from expert witnesses. We will explore these tools in more detail in the next issue. +
| Information appearing in Legal Counsel is for general purposes and is not intended to replace legal advice. For specific situations, consult your facility’s legal representation or a personal attorney.
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