NEW YORK NURSE: March 2009
by Randi Hoffman
While it is not a pleasant experience when nurses are called to testify either in court or at a disciplinary hearing, there are steps they can take to make it less painful.
If you belong to a NYSNA local bargaining unit and receive a summons, call your nursing representative immediately. If the situation warrants, you also may need to contact an attorney.
“Your rep is your first line of defense,” said CarolLynn Esposito, an associate director in the NYSNA Economic & General Welfare Program, who is an attorney as well as an RN.
“The nursing representative can objectively listen to the charges, ask appropriate questions, and begin to gather relevant data,” said Roni Cummings, an associate director in the NYSNA Education, Practice & Research Program. “People get very upset, and it helps to have another person who is not directly involved in the situation help sort through the hard case data.”
The purpose of the initial interview is to gather evidence. Esposito says she advises nurses not to prepare written accounts: “I always initially advise against it, unless nurses are directed to produce a written statement – then they must do it to avoid an additional charge of insubordination. Written documents can come back to haunt them. They also have the right to receive a copy of their statement.”
In 1975 the Supreme Court ruled that employees have the right to union representation during investigatory interviews.
Employers cannot take any retaliatory actions against employees or discipline them for requesting union representation.
If your employer denies your request for union representation and continues to ask questions, you have the right to ask that the investigatory meeting be postponed until a union representative can be present. If the employer refuses to discontinue the questioning or to allow union representation, you and your union can file an unfair labor practice charge against the employer.
“If nurses do have to defend themselves in a court of law or at disciplinary or arbitration hearing, they need to promote themselves as a credible witnesses,” said Cummings. In these situations, the nurse should have her or his own attorney.
“Practice what you might say if asked certain questions. It is very important to listen carefully to the question, take a breath, and answer only what the attorney is asking,” Cummings continued. “Providing too much information, or more than what is actually being asked for, can often get you into trouble. You may be led down a path of questioning for which you and your attorney are not prepared. The shorter the answer, the better. Be honest and keep your answers to yes or no, if possible.”
Esposito said, “Always tell the truth and tell it in a factual way, with no emotional biases, likes, and dislikes.”
Cummings reminds nurses to “paint a professional picture of themselves.” This includes “wearing a nice, conservative dress or suit, not a t-shirt and jeans.” She also recommends belonging to professional associations, such as NYSNA, and nursing specialty organizations, such as the Emergency Nurses Association or the Oncology Nursing Society.
Cummings warns that it is the job of the plaintiff’s attorney to make a nurse look less credible and incompetent.
Sometimes nurses are called upon to testify about a situation concerning their colleagues.
“You may be called to testify about your observations on a colleague’s practice or behavior,” said Esposito. “Recount what you observed factually. You may then be asked to describe what the usual and prudent nurse would do under the circumstances.”
The Office of Professional Discipline (OPD) will investigate if a nurse is charged with professional misconduct.
Cummings again stresses it may be helpful to bring in your nursing representative initially to help sort things out. And Esposito agrees, “When they call, it may sound like they want to have a little chat with you, but don’t believe it. You need your rep or your attorney with you.”
Nurses should have their own malpractice insurance with a company that is experienced in nursing law. NYSNA endorses the Nurses Service Organization, which covers attorneys’ fees. Nurses who have their own malpractice coverage are assured of legal advice from an attorney who is looking out for their interests.
File a Protest of Assignment form when you determine you cannot provide safe care under the circumstances. The POA will serve as evidence if an untoward event occurs.
Nurses need to stay informed about scope of practice and refuse tasks for which they are not sufficiently trained. “Keep up to date on your practice,” Cummings said. “Technology is changing our world at an astonishing rate and we need to keep up with it.” NYSNA offers a continuing education workshop on “Safeguarding Patients and Avoiding Malpractice.” Check the NYSNA workshop listings at www.nysna.org.