Wednesday, September 2, 2009

New Ohio Supreme Court Decision May Mean Chaos For Nurses And Other Health Care Professionals

Nurses, physical therapists, nurses aides and anyone else who works in a hospital or nursing home setting: look out. Courtesy of two recent Ohio Supreme Court decisions, the liklihood of you being sued and dragged into a lawsuit just went up big time.

Here's the deal. Before these two recent decisions, if nurses or other health care professionals made a medical mistake in the scope of their employment and a patient was injured, the nurse's employer was liable for that mistake. Example: a nurse administers a wrong medication to a patient, or doesn't follow specific orders for a patient's plan of care, and the patient is injured. There was no need, and no legal requirement, to sue that nurse individually. Rather, the employer (typically the hospital or the nursing home) would be sued and liable for any damages if negligence was proven. End of story.

However, the Ohio Supreme Court has recently ruled that in order to hold the employer liable for the employee's negligent mistake, it is now necessary to also sue the employee, in certain situations. This decision has thrown almost 200 years of established legal precedent out the window. Here's the result of these decisions: MANY HOSPITALS AND NURSING HOMES ARE NOW ARGUING THAT UNLESS THE INJURED PLAINTIFF NOW SUES EVERY NURSE POTENTIALLY INVOLVED IN A NEGLIGENT MEDICAL MISTAKE, THERE IS NO CASE AGAINST THE HOSPITAL/NURSING HOME.

This reasoning potentially invites chaos for two reasons. First, in over twenty years of handling medical negligence cases, I have NEVER sued an individual nurse even if that nurse made a negligent mistake. There was no need to scare nurses or techicians by naming them personally in a lawsuit, having them worry about whatever effect it may have on their credit rating, and all the other emotional baggage that came with personally naming them in a lawsuit. And I can speak for my colleagues that NOT suing individual health care providers was standard practice. Now, we personal injury attorneys may have to comb through and decipher medical records to identify what staff may have had a role in a patient injury, and include those individuals in a lawsuit.

The second fallout of these decisions is that hospitals are now advocating that their employees must be sued. This has already happened and I have proof that a local hospital in Canton is taking this position. How twisted is it that, consequently, we medical malpractice attorneys who bring lawsuits are advocating suing fewer people, and hospitals and nursing homes are now demanding that their employees be sued? This is nonsense--nonsense on stilts!

So, nurses and other health care professionals, please take note: I never wanted to, and still don't want, to sue you! But now, I may have no choice to do so to protect my clients' rights because YOUR hospital or nursing home will now claim that, unless I don't sue you, the lawsuit must be dismissed.

No doubt if some poor nurses find themselves on the receiving end of a lawsuit, they'll be angry. Their immediate reaction will be to be angry with us "trial lawyers.". While I understand this, your anger is misplaced. If you're served with any lawsuit papers, you might want to ask your employer: why are you taking a legal position that demands that I be sued?

It remains to be seen whether courts will apply these new decisions to hospitals and nursing homes. But remember one thing: we are on your side on this issue. We DO NOT want to sue you.

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