1. Liability In Texas With Respect to Nurses/Nurse Educators Casey C. Campbell Schell Cooley LLP 15455 Dallas Pkwy. Addison, TX 75001 214.665.2053 ccampbell@schellcooley.com

2. Thank You for Having Me Plug for Kidd’s Kids Experience in the clinical setting –I LOVE NURSES Taught me a lot of fun things Taught me a lot of serious things You’re part of two of the most honorable professions there are. –Thank you for what you do.

3. Litigation Theory for Nurse Educators Respondeat Superior –Hospitals are responsible for the conduct of their nurses (when acting within the course and scope of their employment). –Nurse educators/nurse education institutions MAY be responsible for the conduct of their nursing students (when acting within the course and scope of their capacity as a student). State entities/employees are afforded some immunity protections.

4. Educator Liability Educator liability is extremely similar to nursing liability in general. Nursing liability in Texas has special protections.

5. Texas Healthcare Liability Law I know what you’re thinking: –“YES!!!!! AWESOME!!! This is gonna be fun!” Hopefully by the end, you’ll have a better understanding of how healthcare liability and civil litigation in Texas works.

6. BORING SLIDE Healthcare liability in Texas is governed by Chapter 74 of the Texas Civil Practices and Remedies Code. Read at your leisure. –In 2003, the State Legislature made substantive changes to law governing medical malpractice. $250,000 non-economic damages cap Expert report requirement Pre-suit notice. –Texas offers additional rights/protections to healthcare providers.

7. Protections Appear to Work Reports of more than $600 million in savings. Texas reports shortest wait times for primary care physicians, as well as specialists. Texas attracts physicians.

8. Let’s Party

9. Common Area of Nursing Liability 1 Documentation errors. –If it wasn’t documented______________. –New clause to that rule: If it wasn’t documented correctly, it wasn’t done correctly. Pain medicine administration note v. Pyxis records example. –Juries can understand “I forgot to document” more easily than “I know I documented it that way, but I did it a different way.”

10. Types of Documentation Errors Allergies –Not documenting at all. –Documenting the wrong medication. –Not documenting food allergies that may be important (peanuts, shellfish, etc.). Surgical counts –Sponges, sharps, instruments, etc. are all the responsibility of the nurse/scrub. Not the doctor. BY LAW! Only applies to counted items. Retained sponge case v. surgical towel case.

11. Types of Documentation Errors Telephone/Verbal Orders –Totally acceptable. –Important to know that the nurse is doubling his/her responsibilities. Transcribing the order correctly/accurately (TORBV is important). Executing the order.

12. Common Area of Nursing Liability 2 Chain of Command –Plaintiffs’ attorneys LOVE chain of command. –Nurses are expected to be a patient advocate. Patient’s best interest is number 1 priority. More important than workplace politics. –Trigger for chain of command: Nurse has genuine concern not being adequately addressed. –What does that mean? »No clue. –Cardiologist/cardiothoracic surgeon/interventional cardiologist scenario.

13. Chain of Command Cont. Nurses serve as eyes and ears: –For the doctors against the disease process. –For the patients against the doctors? Who to go to: –Most hospitals have a policy in place Supervisor; Other physician; Medical director; Administration.

14. Chain of Command Cont. When to stop? –Until the nurse is satisfied. –Or, according to Plaintiffs’ counsel, God.

15. Common Area of Nursing Liability 3 Medication Errors Happens to everyone –Usually does not harm the patient. –Or, it is identified and corrected (narcan) before any harm occurs. If it hasn’t happened to you: –you’re new, –you are not in the clinical setting enough, or –you’re not paying close enough attention to your errors.

16. Medication Errors Nurses administering medications have a responsibility to know general information about the medication, including: –Indications/contraindications –Dosages –Side effects –Interactions with other meds –How it is administered IV, PO, IM, Transdermal, etc.

17. Medication Errors Cont. Nurses are supposed to verify information. –Right patient (arm band, interview, room number, etc. using as many as possible) –Ask important information: Allergies Ever had any negative reactions to medication before? THESE ARE THE TYPES OF THINGS PLAINTIFFS’ ATTORNEYS WILL EXPECT. –These are not the standard of care. –What is the standard of care, legally speaking?

18. LEGAL STANDARD OF CARE FOR A NURSE “ ‘Negligence,’ when used with respect to the conduct of Nurse Nightengale, means failure to use ordinary care, that is, failing to do that which a nurse of ordinary prudence would have done under the same or similar circumstances or doing that which a nurse of ordinary prudence would not have done under the same or similar circumstances. ‘Ordinary care,’ when used with respect to the conduct of Nurse Nightengale, means that degree of care that a nurse of ordinary prudence would use under the same or similar circumstances.” It’s a “reasonable” standard. It’s situational dependent.

19. Time To Get Sued A nurse allegedly commits negligence in Texas. What happens next?

20. Lawsuit Process Chapter 74 of the Texas Civil Practice and Remedies Code immediately kicks in. –Two year Statute of limitations…usually. –minor’s exception. –undiscoverable (retained sponge) exception. 75 Day extension with pre-suit notice.

21. Lawsuit Process Filing of the lawsuit. –Parties: Plaintiffs – people bringing the suit (usually patients/patients’ families). Defendants – people/entities being sued (usually doctors, nurses, hospitals, etc.) –Venue – Plaintiffs choice Based on location of defendant(s). Choose your county of residence wisely (ask a local lawyer).

22. Lawsuit Process Being served with the lawsuit. –Provide the paperwork to your insurance carrier IMMEDIATELY. –If no carrier, then the relevant employer. Defendant files his/her answer to the lawsuit. –Basically saying “I disagree with what Plaintiffs are saying about me, and I want to exercise my right to offer evidence to a judge/jury and have them determine the case.” Under Chapter74, the burden of the next action shifts back to Plaintiffs.

23. Lawsuit Process Expert Report under CPRC 74.351. –Plaintiffs have 120 days to provide report. –Report must: Be authored by a qualified expert; Provide opinions regarding the applicable standard of care, how each defendant breached the applicable standard of care, and how that/those breach(es) caused the Plaintiffs’ injuries; Only a physician can opine as to how the breaches caused the injuries; Inform the Defendants and Court as to what the Defendants supposedly did wrong, and must provide the Court with a basis for why the case has merit. –If the Plaintiffs fail to provide a report within 120 days, case is automatically dismissed and cannot be filed again. It has become a pretty low bar for what constitutes a report.

24. Lawsuit Process After expert report is provided, discovery begins. –Written discovery Interrogatories Requests for Production Requests for Admission Request for Disclosure –Oral Discovery Depositions – Sworn testimony very similar to being in Court.

25. Lawsuit Process Expert Discovery –Plaintiff has burden of proof. –Expert testimony is required. Plaintiffs designate experts as to standard of care and causation. –Don’t have to be same experts as their Chapter 74.351 reports. –Causation still has to be a physician. –Experts provide a new report, typically. Experts give their depositions.

26. Lawsuit Process TRIAL!!!!!!!!!!!! –“Game Time” –Plaintiffs offer their evidence. Put on witnesses, introduce documents, elicit testimony. The burden is on Plaintiffs to prove the Defendants violated the standard of care and such a violation CAUSED the injury.

27. Lawsuit Process CAUSATION: –Two parts: “but for causation;” Foreseeable. –Must prove the injury was more likely than not the result of the “negligence” of the Defendant(s). –Plaintiff must have had a greater than 50% chance of avoiding the injury had the Defendant(s) not been negligent. TpA Study

28. Lawsuit Process Back to trial: –Defendants don’t have a burden to prove anything (typically). Not forced to put up any expert, if Plaintiffs fail to prove their case. But Defendants are afforded the opportunity to put on witnesses, including experts to support their position.

29. Trial Process Verdict: –Jury/judge determines if the Defendants were negligent and what amount of damages to award Plaintiffs, if indeed the Defendants are found negligent. I’m not personally familiar with this. Appeal: –Usually occurs after a verdict is rendered, and a judgment is entered. A party is stating there was a legal error, and they should get a redo/different outcome.

30. What Roles Do Nurses Play In Litigation? Nurses can be: –Defendants –Fact witnesses –Expert witne$$

31. How To Avoid Being Sued Typically, people do not sue those they like. –Be professional –Be friendly –Be caring Most medical based lawsuits could be avoided with better communication between the provider(s) and the patients.

32. Case Studies Bactrim allergy case –Whole team failure (doc, nurse, pharmacist) Sponge count (5 years later discovered) case. Lab culture call back case.