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Most nurses can expect to face at least one instance where legal representation becomes necessary in the course of their career. Although most healthcare institutions carry malpractice insurance for nurses and will provide their own in-house counsel or insurance counsel, there may be times when nurses feel they need their own private lawyer to protect their interests.
Generally, the amount of malpractice insurance an institution carries will suffice for protecting a nurse from personal financial loss, but in high liability areas of nursing practice, such as nurse midwifery and surgery, nurses should carry an additional policy. Several companies offer professional liability insurance and the Nursing Service Organization offers several types of insurance policies that are tailor-made for the nursing profession.
Two key instances where a nurse should always seek outside counsel are: 1) any time a complaint has been made with the state Board of Nursing, which includes notice of investigation by the Board of Nursing and, 2) any time a nurse has been given notice of being a named party in a lawsuit.
Patients and family members, upon filing a lawsuit, will name every person that has come into contact with the patient as a party to the action. Parties are discharged as the investigation uncovers which healthcare providers are most likely to have caused the alleged harm to the patient. The process can be upsetting and affect a nurse’s practice, but the investigation is a necessary element in the process of resolving the matter.
Nurses may also wish to retain counsel in matters concerning their employers. This can range from a simple review of a contract before hire, to more serious instances involving action taken by employers, supervisors and physicians. Situations in which a nurse should hire outside representation aren’t always clear however. Consider the following situations and advice from Medscape’s “Ask an Expert” before seeking your own legal counsel:
Forced overtime. Several states prohibit employers from requiring nurses to work overtime, but employers mandate the overtime just the same. Employers may threaten a nurse with patient abandonment, which can cause loss of the nursing license. A nurse should consult an attorney in this situation.
Inadequate staffing. Short staffing can lead to dangerous outcomes for patients, but in this situation, a nurse should first work up through the chain of command and bring the situation to the attention of supervisors and the director of nursing. It’s also good to do some background investigation of state laws for minimum staffing levels, which can add credence to the nurse’s case for proper staffing levels. If the facility is a Magnet hospital, it may also be in violation of the requirements to keep Magnet status.
Derogatory or critical supervisor. Derogatory statements can be actionable if they involve discrimination or harassment. A critical supervisor may focus comments more on the nurse’s job performance; these comments are more disparaging than discriminatory or harassing. In this case, the nurse must first examine the reason for the remarks. Is the nurse performing the job as outlined in the job description? If so, the nurse may wish to seek legal counsel who will determine if a cause of action exists.
Termination of employment. Getting fired is usually an emotional situation, but if a nurse believes that he or she was wrongfully terminated, then consulting legal counsel may help recoup financial loss.
Before hiring an attorney, nurses should investigate whether the attorney has experience in handling employment or malpractice issues. It can also help a lot to do some investigation of the applicable laws and regulations before contacting a lawyer — you may discover that the matter can be handled without legal representation, thereby saving hundreds and maybe thousands of dollars.