How the Law Protects You From a Lawsuit Before It Begins

By | 2022-10-27T12:01:20-04:00 October 28th, 2022|0 Comments

It’s common to assume that, in a lawsuit, the law is always on the side of those to whom you provide care. Although that’s often the case, it’s not always so.

In my blog on civil procedure and professional negligence cases, I pointed out that civil procedure requires that a court bases its decision on methods, ways, and practices that all individuals involved in a lawsuit are expected to abide by. Winning a case is the goal for both sides in a lawsuit, but the win must be achieved in a fair and just manner.

In the following case, I take a look several important aspects of civil procedure to show how the law can result in a favorable outcome for you.

Facts of the case

A female patient underwent surgery after she slipped and fell at work. The patient informed both the hospital and a nurse caring for her that she was allergic to morphine. Despite this warning, she alleged, she was given the medication anyway. The patient was discharged seven days after the morphine was administered to her.

Almost four years later, the former patient filed a lawsuit against the physician who ordered the morphine, a nurse caring for her in the ICU, and the healthcare organization after trying, to no avail, to mediate the incident with the hospital. One of the allegations against the defendants was “criminal negligence.”

The patient filed her initial complaint and the appeal pro se, meaning she represented herself in all proceedings. As was required by civil procedure rules, she tried to serve all the defendants with a copy of the summons and complaint, but failed. The patient then asked the trial court for permission to serve one of the defendants by publication in a newspaper. That motion was denied. She then requested that the defendants be served by the county sheriff. That request was granted.

The hospital filed a Motion for Summary Judgment, alleging that the plaintiff failed to serve the defendants, that criminal negligence was not within the provision under which she filed her lawsuit, and that she failed to provide a medical expert’s opinion to support her allegations of medical negligence. The court dismissed the patient’s complaint in its entirety.

The plaintiff then appealed the decision to the state supreme court, and the supreme court transferred the case to the state court of appeals.

The appellate court’s decision

Although the patient’s complaint was filed within the applicable statute of limitations (the time frame within which a case must be filed), the appellate court held that she did not serve the named defendants within the required time frame.

The court acknowledged that the patient tried to serve all of the defendants in a timely manner. However, she did not provide supporting evidence to bolster her assertions or present a legal authority to substantiate that her difficulties with serving the defendants could extend the time allowed for service.

In short, the dismissal of her case was proper.

What this lawsuit can teach you

The appellate court’s decision was based on the former patient not meeting procedural requirements when initiating a lawsuit, rather than on the merits of her allegations against the defendants. Because she did not meet those requirements, the trial court had no jurisdiction over the defendants.

This is an important protection for all defendants, including you, if you’re named in a lawsuit. A lawsuit can only move forward if procedural rules are followed.

This is why it is essential that you do not respond to a complaint until your attorney determines that service of that complaint was done correctly and according to the rules. Responding to a complaint when service is not timely can subject you to the court’s authority.

It’s not clear why the patient didn’t retain an attorney to represent her. Had she done so, the service issue would not have existed, and the case could then proceed on its merits.

Other issues that were problematic for her representing herself included the complaint not being in the correct format, the absence of medical or nursing expert witness opinions supporting her complaint, and one court motion being “virtually illegible.”

If you’re sued, consult an attorney. The law is complex and representation by a competent and experienced attorney is essential for obtaining the best outcome.

It is not clear whether this case had merit or what injury or injuries the patient suffered as a result of this conduct. It’s possible the defendants were professionally negligent in administering the morphine to the patient.

What is clear is that the case could not go forward because required procedural rules weren’t followed. Remember that if you’re ever named as a defendant in a lawsuit, you have protections, not only in the commencement of a case, but throughout the course of a case’s judicial journey.


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Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. 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.

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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, 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 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. 

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