A reader submitted a question about my March 16, 2016, blog that discussed a nurse’s concern about extending her volunteer services of delivering meals and eating with elderly residents to providing personal care to one particular resident.
In the blog, I discussed the immunity from suit for ordinary negligence that many states provide those who volunteer services, such as healthcare, and if a person is allegedly injured due to the services provided. The reader’s question was: Despite this protection, if a nurse is sued, would the nurse have to pay for an attorney for representation?
When there is immunity protection for an individual under any circumstances, the immunity does not alter any other aspects of the judicial process. Initially, it does not negate the tort (professional negligence) (Black’s Law Dictionary, Thomson West, 8th Edition, 2004, 766). A suit can still be filed, required court costs must still be paid, and yes, if you select to have a nurse attorney or attorney represent you in the proceedings, that attorney would charge for services rendered.
Instead, immunity from suit allows the person sued — you as a nurse — to raise the immunity from suit as a complete defense against the tort allegations (Black’s Law Dictionary, Thomson West, 8th Edition, 2004, 766). If all of the elements of the protection are proven — no money was paid for the care provided, any negligence on your part was not willful or wanton (if any negligence existed), as examples — the case against you would be dismissed.
So, there is no automatic or magical application of the doctrine. However, it must be raised as a defense during the judicial proceeding or it will not be applied by the court.
It would not be a wise idea to represent yourself in such a proceeding to save money by not retaining an attorney. Because any suit alleging professional negligence is a serious one, good representation is essential.
The reader also asked how one selects a nurse attorney or an attorney to represent you in a proceeding involving patient care and an alleged injury. There are resources and factors to consider and some of them include:
• Checking with your insurance carrier to determine if your policy covers volunteer services and therefore an attorney to represent you.
• Asking your nurse colleagues if they have been in a lawsuit and if they were satisfied with their services.
• Checking with your professional nursing organizations to determine if they have a recommended list of nurse attorneys or attorneys.
You’ll also want to check if the attorney has had experience in these types of cases; learn how the nurse attorney or attorney charges for services, for instance an hourly or flat rate; find out how long the judicial process will be before a resolution can occur; and learn what your responsibilities will be when working with the nurse attorney or attorney on your case.
NOTE: Nancy Brent’s posts are designed for educational purposes and are not to be taken as specific legal or other advice.
Read more of Brent’s blogs for insight into other legal issues.