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Nursing Legal Issues

Representation If Sued

As their professional roles expand, nurses are
naturally becoming more vulnerable to the types of
lawsuits that have plagued physicians for years. Malpractice is the legal term for negligence by any
licensed professional. Case law began recognizing
nurses as professionals in the mid-1970s, and has
lately come to see registered nurses as "assertive, decisive healthcare providers," according to a 1985
New York appellate court opinion."
[Nurseweek, May, 2000]

With the exception of advanced practice nurses in private practice, and
the ever growing ranks of nurse entrepreneurs, most nurses continue to
function as employees.  While it has generally been the accepted practice
of nurses to be covered under the umbrella policy of their employer this gives
rise to potential conflicts of interest and may not be in the best interests
of the nurses.

As nurses increasingly find themselves named as individual defendants in
medical malpractice cases, issues related to legal representation arise.
Hospital nurses covered under the liability policy of their employer find themselves represented by an attorney whose client is actually the hospital.
The potential for an impermissible conflict of interest is manifest under these
circumstances since the interests of the nurse are often quite different from
those of the hospital.

Separate legal representation is required if the representation of one client
will have an adverse effect on the representation of another. The divided
loyalties of hospital counsel present such a situation. Nurses need personal
counsel to protect their individual interests.

For example, discovery issues, including possible assertions of privilege,
may be very important to the nurse personally but not very important to
the hospital. In addition, situations may arise where the hospital's trial
strategy reflects poorly on an individual nurse who feels strongly that she
was not at fault. Or a nurse may be very interested in settling a claim to
avoid personal exposure while the hospital would prefer to try the case.

As is mentioned above, a physician will often blame the nursing staff for a
medical injury. When the physician is an employee of the hospital or may be
considered an agent whose negligence will be legally imputed to the hospital,
the interests of the nurses are frequently sacrificed.

The mere possibility of divided loyalty should raise the question whether
common representation is permissible. There is little doubt that conflicting
interests among defendants in medical negligence cases are a very real problem. The nurse's interests would be better protected by personal counsel in nearly every case.

Providing excellent nursing care may not prevent you from being named in a malpractice suit, but having the sense to carry your own individual professional liability insurance policy will certainly help relieve worries about adequate representation as well as help protect your best interests!

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