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Archive ORX Session Previews 2019

The Anatomy of a Lawsuit

William Duffy

William Duffy, RN, MJ, CNOR, FAAN


It's always bothered William Duffy, RN, MJ, CNOR, FAAN, whenever a lawyer who doesn't understand the world of nursing presents a legal talk about nurses getting sued. So instead of explaining the legal world from a lawyer's perspective, Mr. Duffy will explain it from a nurse's perspective at OR Excellence, giving attendees "a solid orientation to the world that looks at what we do and how we do it in a much different way than nurses are accustomed."

In an entertaining and informative format, Mr. Duffy will explain the legal risks nurses — and their managers — face and offer strategies to minimize the risk. He'll also show you how to survive a deposition.

Take this common scenario. A nurse informs a patient that she needs an IV. The patient holds out her arm, implying that she consents to the procedure, and the nurse proceeds to start the IV. But the patient shrieks and pulls her arm away in fear of the needle. Many nurses will complete the procedure without specifically asking for consent. In most cases, the patient won't raise an issue. Yet, juries have found nurses liable of battery for continuing with an IV when a patient urged them to stop.

Sounds absurd, but Mr. Duffy suggests nurses ask themselves these questions to avoid getting sued for assault or negligence:

  • Would a reasonable nurse do this? In a courtroom, a jury is asked to determine whether a nurse acted reasonably. That's the standard of care that nurses are legally required to uphold. So that's also the question you should ask yourself.
  • Would my neighbor accept my answer? When a case goes to trial, there likely won't be any healthcare people on the jury. That's why it's imperative to consider the perception of the accountant 3 houses down. He might not find the conduct justifiable.

Should you wind up as a defendant in a lawsuit, Mr. Duffy says:

  • Know where the power lies. Always face the jury when answering questions. The jury will determine the case — not the plaintiff's attorney playing hardball. "There are a couple subliminal things there," says Mr. Duffy. "You're looking the person in the eye. You're facing them. People respect the fact that you're looking at them."
  • Watch your words. In the courtroom, words are taken literally. Many nurses try to make themselves sound better than they need to sound. They only need to meet the courtroom standard of acting reasonably. Instead, they box themselves into a corner. "If you say, "I always do something,'" says Mr. Duffy, "then you have to be sure that you always did it." Describe actions as routine practices rather than absolutes. Cite multiple resources, including prior experience, as the factors dictating conduct, says Mr. Duffy. OSM

Speaker Profile

  • 2004-2005 National President of the Association of periOperative Registered Nurses (AORN), where he led the association's initiative for National Time Out Day to eliminate wrong site surgery. Currently serves on the AORN Board of Directors.
  • Director of the health systems management master of science program at Loyola University's Marcella Niehoff School of Nursing.
  • Has spoken nationally and internationally on health law and nursing leadership topics in addition to being an accomplished author.
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