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Learn some valuable lessons from this defamation case

This defamation case can show you how to avoid being on either side of a lawsuit.

When a patient or fellow staff members say or write negative things about your nursing practice, it can be devastating to your personal and professional reputation.

Especially if what is being said or written is not true.

As I wrote in my blog, “Can an RN Sue Her Nurse Manager for Defamation?”, defamation case laws allow you to sue when someone says or writes something about you to another person that is not true. It’s called libel when it’s written. When spoken, it is termed slander.

In the case Waugh v. Healthcare, an agency nurse discovered how the defamation law works.

Details leading up to the defamation case

In this example, the agency RN was assigned to work at a facility that provided care to “incapacitated and dependent adults.” One evening, a resident told another nurse that the agency RN had “ripped the call bell off [his] shirt”, placed it out of his reach, and said, “How do you like that?”.

The agency RN told the male patient he would instead be checked at regular intervals.

Facility administration investigated the complaint by speaking with the resident and other employees who were on duty that evening. The resident repeated his complaint and facility employees, including CNAs, gave witness reports about the incident. When asked about the resident’s claim, the agency RN denied removing the resident’s call bell.

During the investigation, the facility’s nursing director sent a form to the agency to notify it of the complaint against its RN. In it, the director described in writing the incident, stating the resident “alleges neglect and informed the Department of Health and Human Services.”

She also said there were witnesses to the incident and indicated staff had provided statements along with the resident.

After its investigation, the facility determined the agency RN had: violated its call bell policy, did not provide an acceptable level of care, and her behavior was inconsistent with its mission to provide quality care and protect residents from potential or actual abuse or neglect.

The facility asked the agency to terminate the RN’s contract, noting the RN denied the allegations but the denial was not supported by the resident and employees’ statements.

The agency terminated the contract with the facility and refused to give the agency RN further assignments.

Here comes the lawsuit

The agency RN filed a lawsuit against her agency and the facility, alleging defamation and “slander/libel per se” (meaning that the spoken and/or written words were untrue about her as a professional nurse and, if she proves her case, the law does not require proof of lost wages or jobs). She asked for compensatory and punitive damages.

The trial court granted a summary judgment motion to the facility and the agency, holding that no genuine dispute of material fact existed surrounding the facts presented to the court. As a result, the defendants were entitled to a judgment as a matter of law.

The agency nurse appealed the decision to the state’s judicial supreme court, alleging the court entered the wrong judgment based on the facility’s written words in its reports to the nursing agency.

The court’s decision

The court’s decision is quite instructive as to certain aspects of the state’s defamation case law and how it applied to the agency nurse’s situation.

The defamation law absolves an individual from liability who either speaks to or writes truthful information about a person, in this case the agency RN.

If such a communication is not absolutely “privileged” (protected) against liability, one must prove that a “conditional privilege” protects the person sharing the information with another.

The agency nurse, then, had to prove the reports to the third parties were not subject to a “conditional privilege.”

A conditional privilege protects the speaker or writer from liability against defamation when, for example, there is a legal or moral duty to share the information with another.

In this case, the communications between the facility and the agency were protected with a conditional privilege because they were made in the course of an investigation into the agency nurse’s conduct.

The only way the facility and the agency would lose this protection, the court instructed, is if their communications were false or in reckless disregard for the truth, or if they are “out of ill will” toward the agency nurse. The court held that proof of this did not exist.

The agency nurse also alleged her firing and subsequent inability to obtain work was directly due to her “more than fifty statements of fact” about the working conditions at the facility.

The court opined this allegation was simply “speculative,” since they did not present proof during the trial.

Based on the trial record, the court affirmed the Summary Judgment Motion for the defendants.

You can learn from this sad situation

The following are suggestions to consider:

  • Educate yourself on your state’s defamation law.
  • Don’t speak or write anything false about a colleague to a third party.
  • Never pass on something about a colleague to another unless you know it is true.
  • Don’t spread untrue gossip against a colleague in writing or orally in order to retaliate against that colleague.
  • If you’re a nursing director, be certain to carefully investigate any complaints that come to your attention from nursing staff, residents or others.
  • If you’re a director or nurse manager, only report the actual results of a thorough investigation to third parties (e.g., nurse agency, human resources).
  • Remember that when you state or write something untrue about a colleague, if the colleague proves defamation occurred, he or she does not have to prove loss of wages and future jobs. The court presumes these losses.

Take these courses to learn more about protecting patients and yourself:

National Patient Safety Goals – Nursing
(1 contact hr)
This course covers the 2019 National Patient Safety Goals for nursing staff in the hospital setting.

Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S.  The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees.

Protect Yourself: Know Your Nurse Practice Act
(1 contact hr)
Nurses have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

By | 2020-06-12T13:25:29-04:00 June 15th, 2020|Categories: Nursing careers and jobs|3 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

3 Comments

  1. Avatar
    Kimberly Hartsock June 23, 2020 at 6:00 pm - Reply

    This was an excellent article. Thank you.

  2. Avatar
    Nurse BSN June 28, 2020 at 10:52 pm - Reply

    Many time a nurse would be in big trouble to say anything bad about a Dr , whether true or not, but nurses do not hesitate to disparage a nurses professional reputation . Many nurses have been put on probation and revocation because a facility reported them , in and effort to retaliate for speaking out about a dangerous situation . And it always seem to work for them without any proof at all.
    Interesting case, once you are the bearer of a string of gossip you realize how damaging it can be. Thinking that a board of nursing (az) would be professional and know that this is just retaliation , but they don’t care in fact most likely they do know but are protecting hospitals.
    And the most egreious matters have nothing to do with nursing at all . Would love to see cases the nurse sued the BON , for not having a clear cut reason for acting.

  3. Avatar
    christine July 1, 2020 at 9:46 am - Reply

    Excellent article. Thank you for legally educating nurses.

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