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Legal and Ethical

Issues In Nursing
SIXTH EDITION

CHAPTER

Anatomy of a
Lawsuit

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Anatomy of a Lawsuit
Six procedural steps to any given
lawsuit are:

Initiation of the lawsuit


Pleadings and pretrial motions
Discovery of evidence
Trial process
Appeals
Execution of judgment
Legal and Ethical Issues in Nursing, Sixth Edition
Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 1: Initiation of the Lawsuit


Plaintiff initiates the lawsuit.
Defendant must respond or loses
automatically.
Complaint is filed in a court when
plaintiff's cause of action is identified.
Defendant receives a summons.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Defendant's Response to
Summons
Immediately notify liability insurance
carrier.
Secure an attorney.
Notify health care institution's
administrative staff.
Do not discuss suit, to avoid being
misquoted.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Alternative Dispute Resolution


(ADR)
Any means of settling disputes outside
of the courts:
Mediation
Helpful in contract disputes but rarely in
malpractice

Arbitration
Much like a mini-trial, more formal than
mediation

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Prelitigation Panels
Prelitigation panels ensure that there is
an actual controversy or fact question
before the case is presented at court.
Medical and legal experts review
evidence concerning the injury, its
cause, and the extent of the injury.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 2: Pleadings and Pretrial


Motions
Pleadings
Statement of facts as perceived by
opposing sides of the lawsuit

Motion to dismiss
Filed by defendant to state that there is
no valid cause of action

Counterclaim
States a cause of action defendant has
against the plaintiff
Legal and Ethical Issues in Nursing, Sixth Edition
Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Pleadings and Pretrial Motions


Amended pleadings
Correct or add new material

Supplemental pleadings
Add to the statement of facts before the
court

Motions
Formal requests asked of the court by
one of the parties

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 3: Pretrial Discovery of


Evidence
During discovery both sides determine
strategy and obtain evidence.
Right of discovery:
Depositions
Witnesses questioned by opposing sides

Requests to produce documents


Additional examinations of the plaintiff

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Pretrial Conference
Final phase of pretrial discovery
Judge and attorneys agree on
procedure and issues to be decided
May result in finalization of a
settlement

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 4: The Trial


Both sides select a jury
Opening statements are made
Witnesses are questioned and crossexamined
Evidence is presented
Standard of proof must be met

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

The TrialStandard of Proof


Preponderance of evidence
Based on the probable truth of the
evidence, not the amount

Clear and convincing evidence


Intermediate standard that a fact is
highly probable

Beyond a reasonable doubt


The highest level of evidence
continued on next slide
Legal and Ethical Issues in Nursing, Sixth Edition
Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

The TrialContinued
Principles of law are applied to
determine the facts.
Facts are determined by the jury.
Final arguments are made.
Jury deliberates and reaches a verdict.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 5: Appeals
Appellate court reviews case based on:
The trial record
Principles of the law applied
Short arguments by representing
attorneys

If case is appealed to Supreme Court,


the decision is usually final

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Step 6: Execution of Judgment


Lawsuits involving nursedefendants
result in the:
Awarding of money damages, an
injunction to perform or restrain certain
action, or a restraining order
Dismissal of all causes of action against
the nurse

continued on next slide


Legal and Ethical Issues in Nursing, Sixth Edition
Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Execution of Judgment
Defendant may be fined or imprisoned
if injunction is not fulfilled
In a default judgment or money
damages award, defendant's earnings
may be garnished or property
confiscated to pay award.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Lay Witness
Establishes facts at trial
States exactly what transpired without
drawing a conclusion or forming an
opinion
May include patients and their family,
nurses not named in the suit, or other
staff

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Expert Witness
Explains specialized technology or
skilled nursing care
Required when case involves scientific
information that is beyond common
knowledge

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Expert Witness Criteria


Lack of involvement with defendants
Clinical expertise, certification, recent
continuing education in the area at
issue
Ideally a graduate degree and author of
publications in nursing
Approval by trial judge

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Considerations for Becoming an


Expert Witness
Is the case of interest? In the area of
your expertise?
Review sent materials and determined
whether the standard of care was
breached.
Decide on a fee schedule before
proceeding.
Know the time frame for discovery and
trial.
Legal and Ethical Issues in Nursing, Sixth Edition
Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Expert Witness Testimony


Unlike lay witnesses, testimony is
composed of opinions and answers to
hypothetical questions.
Expert witnesses may serve as legal
consultant without testifying.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

Ethical Dilemma for the Expert


Witness
The expert witness only has written
records and reports of the event on
which to base conclusions and did not
witness the event in person.

Legal and Ethical Issues in Nursing, Sixth Edition


Ginny Wacker Guido

Copyright 2014 by Pearson Education, Inc.


All Rights Reserved

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