Review liability insurance cases first in malpractice cases

By Dorothyanne Barrym, JD, RN
June 24, 2002

I'm an RN from New Jersey and used to work in Texas for about two years. I received mail from an attorney of the family of a patient who died three years ago.

According to the letter, the family sued the facility where I used to work and five nurses for negligence. I'm not one of the defendants, but the attorney wanted my deposition.

I called the law firm and left a message on the machine to acknowledge that I received the letter, but that I don't have any recollection of the incident. The law firm called back, still wanting my deposition and wanted to arrange to meet with me.

I read the nurses' notes of the incident and my name was not there, so why would they ask for my deposition since I don't have any recollection of it? Besides, that was three years ago.

Should I get a lawyer for this? Does malpractice insurance cover the attorney's expenses? What should I do?

~W.P.

If you were paying malpractice insurance premiums at the time this incident occurred, you should contact that insurance company without delay. There are two types of liability insurance: One covers you for all incidents that occurred during the time you were paying premiums, even if you no longer carry that insurance, and a second covers you for all lawsuits which arise during the time you are paying premiums, even if the event which prompted the lawsuit occurred at a time before you began paying premiums.

If you have the latter type of coverage, contact your present carrier without delay. Your insurance company may even provide an attorney to represent you at the deposition. Your specific policy of coverage would state just how much attorney assistance will be provided. If you do not have insurance coverage relative to this patient's death, do not upset yourself. You will survive this experience.

Even though you feel you have nothing to contribute, the attorney requesting this deposition may want to ask questions about staffing ratios, your former co-workers or nursing supervisors. The questions may be about why you left that job. The attorney who requests the deposition pays for the deposition and if you are in another state, the attorney will come to your state for the deposition, which usually takes place at a local law office or in a hotel meeting room with a court reporter present.

This type of deposition is part of the "discovery" phase of a lawsuit; the plaintiff's (patient's or patient's estate's) lawyer is discovering more facts relative to the case that support his/her theory of liability.

Defining 'abandonment'

A friend of mine offered to go to the ER. The nursing supervisor, who was requesting a nurse then, said she didn't want him there. Because she said enough nurses were in ICU, my friend said he would go home, which he did.

The supervisor said this constituted abandonment. What constitutes "abandonment"?

~S.F.

Abandonment can be defined differently, depending upon the situation in which it occurs. In the scenario you describe, the employee abandoned his job by leaving the work site during working hours without permission of his supervisor.

The hospital would be correct in calling this "job abandonment." Since the employee had not begun work duties in a particular area of the hospital and, more particularly, since he had not assumed responsibility for any particular patient or group of patients, your scenario would not be correctly labeled "patient abandonment."

Patient abandonment occurs in the hospital when a patient is left without a competent person to care for him.

Rather than focus on what a nurse did or didn't do to cause the abandonment, the situation is defined from the patient's perspective of being "without."

Having said that, the patient is not "without a nurse" just because the nurse is off the floor at a meal break or even off the premises, if the nurse who left had obtained a competent person-usually another nurse-to assume responsibility for the patient even if it were for a temporary period of time.

Patient abandonment might be more accurately defined by defining what it is not. Failing to call and failure to show up for work in a hospital at the appointed time is job abandonment, not patient abandonment.

Failing to show up for a home care case may be patient abandonment if the patient was "without" a responsible person to take care of them.

Refusing to accept responsibility for an assignment for which the nurse is unqualified is not patient abandonment. It may be cause for dismissal, but it is not patient abandonment.

For an abandonment to take place, the nurse must have unconditionally accepted responsibility for and assumed care of a particular patient or patients and then left them "without" a nurse to care for them.