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
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.
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.
Educator Liability
• Educator liability is extremely similar to
nursing liability in general.
• Nursing liability in Texas has special
protections.
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.
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.
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.
Let’s Party
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.”
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.
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.
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.
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.
Chain of Command Cont.
• When to stop?
– Until the nurse is satisfied.
– Or, according to Plaintiffs’ counsel, God.
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.
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.
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?
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.
Time To Get Sued
A nurse allegedly commits negligence in
Texas. What happens next?
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.
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).
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.
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.
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.
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.
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.
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
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.
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.
What Roles Do Nurses Play In
Litigation?
• Nurses can be:
– Defendants
– Fact witnesses
– Expert witne$$
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.
Case Studies
• Bactrim allergy case
– Whole team failure (doc, nurse, pharmacist)
• Sponge count (5 years later discovered)
case.
• Lab culture call back case.