SOURCES OF LAW: THE FEDERAL AND STATE SYSTEMS 1:2
Common Law 1:4
Federal Courts 1:5
State Courts 1:6
Administrative Law 1:6
THE CIVIL SUIT 1:7
Initiation and Filing 1:7
The Pretrial Phase 1:9
The Trial 1:11
ALTERNATIVES TO LITIGATION 1:12
This chapter discusses several general aspects of the legal system that are relevant to nurses. It first briefly outlines the organization of the government, focusing on the judiciary, and then provides information on what a nurse faces when a legal action is expected.
The U.S. legal system functions on two very distinct, yet interrelated levels: federal and state. Federal law has its source in the U.S. Constitution, but of course also consists of federal statutes and regulations. The federal government has recently been extremely active in the healthcare field. Medicare legislation and emergency care legislation, such as EMTALA, ultimately have a great impact on the way that hospitals and other health care institutions operate. The legal system of each state can differ, since the system is in accord with the U.S. Constitution. Each state has its own Constitution that often gives the states citizens rights more expansive than those offered by the U.S. Constitution. State governments and regulatory bodies enact the bulk of the legislation that affects healthcare, such as licensing physicians and nurses, regulating hospitals, and establishing the scope and standards of medical practice.
The two-tier legal system extends to the judiciary as well. Federal courts and state courts, though distinct entities, function in a similar manner. Each has general jurisdiction trial courts and appellate courts. Most nurses who are involved with the legal system will be involved through state courts, unless the ground for the legal action is purely federal, such as a legal issue involving Medicare billing (federal subject matter jurisdiction), or the parties are from different states (federal diversity jurisdiction) . This chapter will focus on the steps that a typical nursing malpractice action takes in state court (which is the most likely forum for a case against a nurse).
This and the following chapters focus on civil law, which are those actions that can lead to monetary liability and perhaps disciplinary sanctions by the State Board of Nursing. Criminal penalties, such as criminal battery when a nurse has not obtained consent before performing a procedure on a patient, are noted when appropriate but will not be considered in detail. Upon first notice of a potential legal action of either type, a nurse should immediately seek experienced legal representation.
SOURCES OF LAW: THE FEDERAL AND STATE SYSTEMS
The U.S. Constitution is the supreme law of the land, and is the foundation upon which the entire U.S. legal system is grounded. No federal, state, or municipal body may pass a law in contravention of the U.S. Constitution. The U.S. Constitution divides the federal government into three branches: the executive, legislative, and judicial, each of which is granted defined, otherwise known as enumerated, powers.
The U.S. Constitution is the most important source of personal rights for all U.S. residents, and provides several broad protections for employees. For instance, nurses employed by state or county hospitals have a constitutionally protected due process property right in their continued employment that cannot be abridged without following established procedures. Also, nurses, like all employees, have the right not to be discriminated against because of race or gender when competing for any government employment.
The U.S. Constitution provides that each state has the authority to formulate its own system of government in adherence to the principles set forth in the U.S. Constitution. Each state has its own Constitution. Most of these have been adapted from the U.S. Constitution. Many states, in addition, have given their citizens and residents rights that are greater than those expressed in the U.S. Constitution. Nevadas Constitution, for instance, contains a variety of conscience clauses that may allow a nurse to refuse an assignment when it is against his or her religious or moral beliefs.
The legislative branch of the federal government consists of two houses of Congress, the Senate and the House of Representatives. The federal legislature is responsible for the creation of the laws of the United States, which are approved by the President, who is the head of the executive branch. These laws, known as statutes, are published in the United States Code (USC), and take precedence over, or preempt, any state laws that conflict with them.
Congress has recently been very active in the healthcare field. For example, Congress has recently attempted to pass legislation making managed care entities directly liable to patients lawsuits for various grievances such as denial of care. Federal statutes also cover important and diverse healthcare areas such as Medicare and emergency care by hospitals. The full text of federal statutes may be found in any law library and is available through many Internet sites, including the following: http://www.law.cornell.edu/
Congress authority to make laws (statutes) can be found in Article Three of the U.S. Constitution. Among these powers is the right to regulate interstate commerce among the states. Congress has used this authority to create laws governing virtually every aspect of American society and business. Where Congress has the power to make laws in a specific area, Congress may elect to preempt all state laws, share the power to create governing laws with the states, or permit the states to legislate in the area (as long as the state does not promulgate statutes that conflict with federal guidance or intent). The Tenth Amendment to the U.S. Constitution provides that powers not enumerated (specified) in the Constitution are reserved to the States.
State legislatures are generally modeled after the federal government. Each state has a governor who approves or vetos legislation passed by the legislative bodies. The governor also is charged with enforces the law of the state. In Nevada, the laws of the state are found in the Nevada Revised Statutes (NRS). The primary source of nursing laws is found in Chapter 632 of the Nevada Revised Statutes, also known as the Nurse Practice Act. NRS 632 establishes the State Board of Nursing, sets out the requirements for the various levels of nursing licenses in Nevada, and establishes standards for acceptable nursing schools. NRS 632 also provides the Nursing Board broad authority to initiate disciplinary action against nurses (through licensure sanctions) and outlines the procedural requirements for disciplinary action. NRS 632 and the entire Nevada Revised Statutes may be found online at http://www.leg.state.nv.us/
Common law is, simply, judicially created law. The judiciary (the court) is often the first branch of the government to face controversies and inequities, and is therefore in a unique position to make law. The judiciary has the authority to review legislative and executive actions to test their constitutionality under the respective federal or state constitutions. In so doing, the judicial branch often creates law, which is just as binding as legislatively enacted law. These laws are in the form of opinions, which must be published to be binding law.
The precedential level of the decision is dependent upon the court that publishes it. The U.S. Supreme Court decisions are binding authority in all courts in the United States when the decision concerns matters of constitutional interpretation, whereas Nevada Supreme Court decisions are binding only on Nevada state courts.
Often Congress or state legislatures will codify, or make into legislative law, common law developed in the courts. Congress or state legislatures may also pass laws which have the effect of overruling previously developed common law. To codify means to put the rule developed in the courts into written legislated law (called Nevada Revised Statutes in Nevada and United States Code in the federal statutes).
In rapidly evolving fields, such as healthcare, common law remains very important because health related issues arise in litigation and must be addressed by the courts. Legislatures only meet during specified times (in Nevada, only every other year) and cannot respond to new health care issues as rapidly as the courts. Additionally, some health care issues are so hot that legislatures tend to avoid them. This makes the courts common law the only law for that issue.
The federal judicial system is divided into three levels. The first level is comprised of trial courts, also known as district courts. In a district court, either a judge or a jury, or both, may decide a case, depending on which issues are being decided. The district courts also hear appeals from some administrative agencies and from the federal bankruptcy courts. A district court decision that is not appealed is never published and thus does not affect other judicial decisions. Few nurses will ever have any reason to be in federal court. Probably the most often federally-prosecuted healthcare offense is Medicare fraud and abuse, a serious violation which requires immediate experienced legal counsel.
An opinion rendered in a federal district court may be appealed to the U.S. Court of Appeals. There are thirteen Courts of Appeal, called federal circuits, each covering a specific geographic area. Nevada is a part of the Ninth Circuit, which also encompasses the Pacific states, Alaska, and Hawaii. A published decision by the Ninth Circuit Court of Appeals becomes binding law and establishes precedent for lower federal courts and judges within the Ninth Circuit (includes Nevada) deciding similar issues. Any lower federal court hearing a case involving similar legal questions must conform its decision so that it follows the rule set forth in the published case. Opinions published by the Ninth Circuit Court of Appeals may not binding on Nevada state courts (if the decision involves a strictly federal matter), but these decisions are important because they are considered persuasive authority for unresolved areas of the law.
The highest court in the United States is the Supreme Court. The Supreme Court has the discretion to grant certiorari (discretionary review, meaning it only has to hear the cases it chooses to hear) to parties seeking appeals from decisions of the federal Courts of Appeal or from the state supreme courts. These decisions are binding on all judges in all courts, to the extent that the decision is an interpretation of federal law or a constitutional challenge to a state law or decision.
Most state court systems follow the federal model, although some states use different terminology to label the various levels of courts. Important state court decisions are printed in state and regional reporters and become binding law. Nevada has only two levels of courts, and has a body of law that is small compared to most states. Nevada state district trial court decisions may be appealed, as a right, directly to the Nevada Supreme Court. The decisions of the Nevada Supreme Court may be found in the Nevada Reporter or the Pacific Reporter located in any Nevada law library.
Generally considered fairly low on the hierarchy of laws, administrative laws, also known as regulations, are nonetheless probably the most important to nurses, or anyone working in a highly regulated profession. On the federal level, Congress delegates to a myriad of federal agencies the authority to make regulations that govern the manner in which entire industries function. For example, the IRS and the Federal Aviation Administration make many important rules that dictate the relatively minor aspects of their respective agencies. Federal agencies also promulgate regulations that affect hospitals, particularly hospitals that provide emergency care or accept Medicare patients. Federal regulations are published in the Code of Federal Regulations (C.F.R) and may be found online at: http://www.law.cornell.edu/
In Nevada, the state regulations are published in the Nevada Administrative Code. As with the Nevada Revised Statutes, regulations applicable to nurses are scattered throughout, but the bulk of the rules affecting nursing is in Chapter 632 of the Code. The Code goes into far greater detail than the statutes. The exact rules for licensing and certification of nurses are set forth, as are all the procedures regarding the presentation of disciplinary actions before the Board of Nursing.
Chapter 632 of the Nevada Administrative Code also includes the general standards for the practice of nursing by registered nurses and licensed practical nurses, and well as those for advanced practitioners and specialized nurses. The scope of practice for various levels of nurses is detailed. Because of the breadth of important information contained in this chapter, it is advisable that every nurse become familiar with these regulations, preferably before any employment conflict or legal issue arises. The nursing regulations are surprisingly well written and laid out, particularly in comparison with those of other states, and every practicing nurse should read them. Relevant portions of the Code are reproduced at the end of each chapter of this text. The full text of the Code is available online at http://www.leg.state.nv.us/
THE CIVIL SUIT
This section outlines the basic elements of a civil suit filed against a healthcare practitioner. It is a general overview but will serve as a useful guide for a nurse unfamiliar with the legal process who finds herself a defendant in a typical malpractice action.
Initiation and Filing
When a person believes that he has been harmed by the actions, or lack of action by a nurse, often the first step is a complaint to the nurse herself, a physician, or the hospital. It cannot be stressed enough that many malpractice actions could be prevented if the persons involved, without admitting liability, communicate with the patient and express concern, sorrow, or apology for the bad outcome of the case. Many patients and family members understand that medical care can never be perfect, but they wish to express their anger and sorrow about the event. Much of this anger is taken out on the healthcare providers who attempt to assist the patient, and is often expressed in the form of a lawsuit. By simply offering the appropriate words and allowing the patient and his family to vent their frustrations, a healthcare professional can often stop a retaliatory lawsuit before it begins. Occasionally, an offer to pay the medical bills of the injured patient (and to waive billing for past services) will placate the patient enough to prevent the filing of a suit. Most state laws provide that an offer to pay medical bills is a humanitarian gesture, and since an admission of liability does not accompany it, it cannot be introduced in court as evidence of negligence.
The patient who is unable to reach a resolution with his health care providers or the institution concerned will likely seek out an attorney. Many plaintiff attorneys specialize solely in medical malpractice actions, often on a contingency basis, in which the patient does not pay very much, if anything, unless there is a recovery. The attorney will interview the patient, and will obtain his consent to seek a copy of his medical records for review. Often an attorneys request for a patients medical records is the first indication that an institution has a forthcoming lawsuit.
If the attorney determines that the case is likely to succeed, he will draft a complaint which alleges the cause of action, usually negligence, and specifies damages. The patient-plaintiff must verify the complaint. The complaint must comply with the rules of civil procedure adopted by the court in which it is filed. In addition the court must have the power to hear the case, called subject matter jurisdiction, and power over the person named as defendant in the suit, which is known as personal jurisdiction. State superior courts generally have the power to hear most cases, and assuming that the defendant-nurse or hospital is a resident of Nevada, the court will have jurisdiction over him or her. The attorney will also prepare a summons, the official notification to the defendant that [s]he is being sued, and instructing the nurse to answer the complaint by a certain date. The summons and complaint are then filed with the court. Once filed the summons and complaint must then be served upon the defendant, usually through personal service, although alternative means, including service by mail, are possible.
A case must be filed within the appropriate statute of limitations. A statute of limitations is simply a period of time which usually begins on the date of the injury, but may also begin when the injury is discovered or should have been discovered. Thus if a medically-caused injury does not manifest itself for two years after the procedure, the plaintiff may have an additional period of time to file his suit.
The defendant is given a period of time to respond to the complaint. Once served with notice of a suit, a nurse should immediately consult the institution for which she works. Often the institution is named in the suit, and may provide legal representation for its employees. The nurses malpractice insurance provider should also be notified, and may also offer representation to defend against the case. Nevertheless, before discussing any details of the incident, the nurse should ensure that the attorney is representing him or her, not solely representing any involved hospital or physician, as any admission to a person with whom [s]he has not formed an attorney-client relationship may not be privileged.
The Pretrial Phase
The pretrial phase of the civil suit may be quite short, or may drag on for years. This phase consists primarily of discovery, in which each party attempts to learn as many applicable facts about the case as possible, and may also consist of conferences with the judge assigned to the case and the opposing party. In Nevada, the pretrial phase of a malpractice action must also include the presentation of the potential case to a screening panel.
Discovery generally consists of written interrogatories, depositions, requests for admissions from the other party, and requests for documents and other tangible items. Generally expert witnesses are chosen and deposed also during this phase, and settlement negotiations are commenced based on the strength of each partys case.
Written interrogatories are usually multi paged documents containing questions about both background information, such as information about the accreditation of the nurse and the institution, and questions specific to the litigation, such as a request for information about the events at issue. These questions must be answered truthfully and completely, but, as with all phases of discovery, an attorney should review the answers before they are returned, as privileged information or responses capable of being wrongly construed should not be included.
A request for the production of documents is exactly what it sounds like. The plaintiff will probably want the nurse to provide copies of all records concerning the plaintiff, including nursing notes, and may want copies of phone bills or other similar documents. The request for admissions asks the party to admit or deny certain facts. Once admitted or denied, these admissions are conclusive, so extreme care needs to be taken in answering these. Generally, facts which are fairly indisputable, such as the dates of the patients admission, are mixed in with facts that are in dispute, such as a statement concerning the care of the patient. A typical example would be: Admit that at 4:00 p.m. on June 1, 1999, Defendant failed to record Plaintiffs vital statistics, as required by the post-operative protocol. Because these requests are often framed in the negative, they are often complex, and most important, they are often critical to the plaintiffs case. A nurse must carefully verify her answers with her attorney before submitting the responses.
Depositions generally take place after a substantial amount of written discovery has occurred. In a deposition, the opposing counsel will ask the nurse questions concerning the case under oath. The nurses attorney is present, and the plaintiff may choose to be present also. A court reporter records the questions and answers. The person being deposed is often required to bring supporting documents to the deposition so that they can be examined.
Depositions can seem intimidating, but they are usually fairly cordial events. During the deposition the opposing attorney will ask many of the same questions asked in the interrogatories in an attempt to get an inconsistent answer. The details of the disputed events are examined in great detail, and any opening the opposing attorney sees is either exploited on the spot, or is sometimes saved for trial. Although a person being deposed will have to answer many questions that could not be asked in trial, your attorney should nonetheless object to these questions, so that the objections are preserved for trial. In any case, the nurses attorney will be by his or her side throughout the deposition, and can answer any questions the nurse may have about the procedure. Depositions serve the additional purpose of allowing each side to examine the strength of the witness, and the ability of the witness to relate to the jury. Does a person come across as professional, articulate, and reliable, or does [s]he have mannerisms that will seem deceptive to a jury? Simply answer the questions posed to the best of your ability, and take as much time as is necessary to think before answering a question. The court reporter does not record pauses, although she will record every word (and sometimes sounds, such as ah), so feel free to take your time before responding.
Because most professional malpractice cases require that an expert witness explain to the jury what the appropriate standard of care was, and how it was or was not breached, both sides generally hire experts. In cases of nursing negligence, the expert retained will likely be an experienced nurse (rather than a physician). The expert will review the records and may interview the involved persons, including the nurse. She will then form an opinion about whether the nurse met the standard of care, that is, whether the nurse acted as a reasonably prudent nurse should have under the circumstances. The expert will be deposed by the opposing party, and will testify as to his opinion at the trial. Because juries place a great deal of weight on the opinions of experts, the careful choice of an expert can mean the difference between being found liable for the patients injury or being absolved of all liability.
During the course of discovery, parties will usually engage in settlement negotiations. Few cases that are filed actually go to trial, as once each party realizes the strengths and weaknesses of his or her case, settlement is often a valid option. It is your attorneys duty to report to you any significant or written settlement offers he receives. Carefully evaluate these. Even if you feel pressure from your malpractice insurer, your professional career may be affected if accepting a settlement offer entails admitting liability (or sometimes even if it does not). In cases in which multiple defendants are initially named, the nurse may be able to prove through discovery that she was not responsible for the patients injury. If so, the nurse could probably get dismissed from the case.
After discovery is completed, the opposing attorneys, and if they wish, the other involved parties, attend a pretrial conference with the judge who will hear the case. During the pretrial conference, the issues that will be tried are determined, and issues on which there is no dispute are discarded. Final witness lists are exchanged, and disputes regarding the evidence to be presented are settled. There is usually a final attempt to settle the case, mediated by the judge.
A typical malpractice trial is divided into distinct phases: jury selection; opening statements by both parties; testimony from witnesses; settling and reading of jury instructions and closing statements. Of these, the defendant-nurse is likely to be greatly involved only in the testimony stage, as her attorney will conduct most of the rest of the trial, with her approval as to critical decisions.
Depending on the court, a jury is selected either by the judge or by the attorneys. Each potential juror is asked a series of questions to expose any biases they may have toward either party. These are excused for cause. Attorneys may also be able to exercise preemptory dismissals of a juror, in effect a dismissal that can be for any reason except race.
The plaintiffs attorney will then give his opening statement, laying out his version of the evidence that the jury will see for his client. The defendant-nurses attorney will follow suit. It is important to note that the plaintiff in a civil suit bears the burden of proving his case by a preponderance of the evidence. This standard is difficult to define specifically, but can be thought as more likely than not or about fifty-one percent.
The plaintiffs attorney will then call his witnesses, including the plaintiff himself and his expert, to give their version of the facts. The nurses attorney will cross-examine these witnesses. The defendant then calls his or her witnesses, and they are subject to cross examination by the plaintiff. If and when the defendant nurse is called, [s]he will be sworn in and then questioned. Although testifying in court can be a nerve-wracking experience, it is important to relate the facts calmly and clearly as you remember them and as you previously said in your interrogatories and deposition.
The judge then meets with the attorneys outside the presence of the jury to settle the instructions on the law. The judge then reads to the jury a series of lengthy instructions, telling them what the applicable law is and instructing them how to determine damages. Each attorney will then give a closing argument, the first chance that your attorney will have actually to argue the evidence. The jury deliberates in private, and then delivers its verdict. If the jury is unable to reach a verdict, the judge may send them back for further deliberations with fresh instructions. If they are still hung, unable to reach a verdict, then the plaintiff will have the option of pursuing another trial if [s]he wishes.
The parties can appeal an unsatisfactory verdict within a limited period of time. Appellate practice is fairly specialized, and often a new attorney must be retained if a case is appealed. If the time for taking an appeal runs out without an appeal, or at the conclusion of any appeals, the decision is final. If the nurse were found negligent, [s]he (or the nurses malpractice insurer) must pay the damages found by the jury.
ALTERNATIVES TO LITIGATION
Not surprisingly, litigation is an expensive, time consuming process. Some plaintiffs will opt for resolution of their disputes by alternative means. Moreover, many who sue in court can be encouraged or convinced to resolve their disputes through other means, such as mediation or arbitration. Some states, such as California, allow a health care provider to require a patient to pursue only arbitration, rather than litigation, if the parties have a written agreement to that effect (many providers and managed care organizations have a standard arbitration clause as part of their contracts).
Mediation is an informal process through which parties attempt to work out their dispute, including a settlement amount, if any, with the help of a trained mediator. Parties may seek mediation through private agreement, or it may be ordered by the court. This particularly occurs when the parties dispute is not significant, or involves extremely sensitive issues that are not particularly suited for litigation.
A much more commonly used alternative is arbitration. Arbitration is more formal than mediation, but usually less so than litigation, although many of the rules of evidence and procedure may apply to arbitration. There are many possible ways by which parties to a dispute may choose an arbitrator or an arbitration panel. One common practice involves each party selecting a neutral arbitrator. The arbitrators then agree between themselves to a third arbitrator. The parties may choose to use only the third neutral arbitrator, or may employ the entire panel of three persons to hear their case.
Depending on the agreement between the parties, arbitration may be either advisory, or more commonly, it is binding and has the same weight as a court decision. The court may also order arbitration in lieu of or before it will hear a case.
It is usually to the healthcare providers advantage to seek alternative dispute resolution whenever possible. Court cases are adversarial by nature, and the time and expense of defending even a winning case can be enormous. In addition, the possibility that a sympathetic jury may decide to compensate a plaintiff simply because he is tragically injured, rather than because the nurse caused the injury, cannot be overlooked. Juries reason that medical professionals and hospitals have insurance, and when faced with a paralyzed child who cannot pay for his future medical care, may decide to compensate the plaintiff even when they are not sure that anyone can be faulted for the injuries. Arbitration panels tend to be composed of retired judges and experienced attorneys, who are often better able to apply the law rather than emotion when reaching a decision. Therefore, whenever possible, the healthcare provider should seek alternative dispute resolution and should attempt to convince the plaintiff of the advantages of the alternatives to a lawsuit.
Ideally, of course, a practicing nurse should never have to face a trial, arbitration, or settlement. One of the goals of this text is to show the nurse how she can limit her liability, so that she never has to face a legal action.
 A very few states, such as Nebraska, have a unicameral or single legislative body. Nevada, like the great majority of states, has both a lower house, the Assembly, and an upper house, the Nevada State Senate.
 Judicially created law is law or rules developed by judges sitting, usually, on courts of appeal (appellate courts). Nevada does not have a formal appellate court system between the general jurisdiction trial courts and the supreme court. Thus, in Nevada, the state court of appeal is the Nevada Supreme Court. Decisions rendered by the Nevada Supreme Court establish the rules, or precedent, for future decisions concerning the same legal issue.
 The judiciary cannot, on its own, rule on legislative or executive actions. An issue in controversy must be brought to the court by a complaining party with standing to complain. To have standing the party must, among other requirements, have been subjected to (or in immediate danger of) injury or harm due to the law or executive action. This standing element is important because a nurse who doesnt like a law or executive action, but is not harmed or threatened with harm or injury, cannot bring the objectionable law or executive action to court. This nurse does not have standing to bring the lawsuit.
 Published opinions and published decisions are two expressions having the same meaning and effect.