Part 1 in a series discussing the process of litigation in patient care lawsuits
By Karen Zulkowski DNS, RN, CWS
Hopefully none of you will be involved in a lawsuit over patient care. However, pressure ulcers are the second most common lawsuit (wrongful death is #1) and 50% of patients with a pressure ulcer in the hospital go to a nursing home. That is 3 times the rate of any other reason for nursing home placement. To complicate matters, patients with pressure ulcers frequently go back and forth between the hospital and nursing home as additional medical complications arise and the patient’s condition deteriorates.
So what happens if your medical facility is sued? First, there are two types of litigation; criminal and civil. Abuse is criminal, but medical malpractice is civil. A civil suit means citizens have a dispute with each other for monetary damages. There are two sides: The Plaintiff is the person who starts the lawsuit, and is seeking damages. The Plaintiff can be the patient or the family, if the person is deceased. The second is the Defendant. The Defendant is the person, facility, or corporation defending against the lawsuit.
The suit and initial filing process vary by state, as do the qualifications for a legal expert. However, the basic process begins when a person or family feels they may have a reason to pursue damages, and they go to an attorney specializing in medical cases. At this time, an intent to sue letter is sent. This letter will clarify to the doctor or facility that there are plans to sue, and begin a series of deadlines for other parts of the process to happen. Time to sue after the medical event is limited by law (statute of limitations), and the letter of intent stops the clock on the initial time requirement.
The Plaintiff’s attorney also obtains relevant medical records and has a medical expert review them. Large firms have “in house” nurse case managers. Smaller firms use outside experts. Nurses can only review nursing care; physicians review medical care. The expert(s) give an opinion, whether or not they feel there is a potential case. Risk management and the facility’s attorney get involved at this point. Some states have a medical review board that has to be the first step in the process. Others do not.
Next, a complaint is filed. This is the initial legal paper that specifies the claim being made, and names the Defendants. The Defendant must file an answer to the complaint in a specified time frame. These pleadings begin the lawsuit. At this point the Defense hires experts to give an opinion, and settlement talks may begin.
Next time I will discuss the discovery and deposition process (and how technology has changed it), what kinds of questions are asked, and what happens at trial.
How many of you have been involved in a medical lawsuit? How many have any idea if their wound care or medical facility has been sued? Most suits of this nature are settled without anyone at the facility knowing they occurred. Medical facilities do not want to publicize the cases, and settlement amounts are sealed.
About The Author
Karen Zulkowski DNS, RN, CWS is an Associate Professor with Montana State University-Bozeman, teaches an online wound course for Excelsior College, and is a consultant for Mountain Pacific Quality Improvement Organization. She has served as a Research Consultant with Billings Clinic Center on Aging, and was the Associate Director for Yale University’s Program for the Advancement of Chronic Wound Care.
The views and opinions expressed in this blog are solely those of the author, and do not represent the views of WoundSource, Kestrel Health Information, Inc., its affiliates, or subsidiary companies.