Medscape Article Highlights When Nurses Need to Consider a Lawyer

One of the most common statements I make to potential clients that are wavering when considering hiring me for a nursing board case is that if they don’t hire me, then they need to hire another attorney, preferably an attorney who practices license defense. Few heed this advice and I don’t follow up to check on the outcomes, but it is vitally important if you are going to be investigated by the Board of Nursing and your livelihood may be on the line, then you need to consult and hire an attorney to help you with the process.

And then I get my weekly Medscape Nursing email – and what is on the top line? An article (reg. req.) from Carolyn Buppert, NP, JD (whom I have met, but don’t know well) articulating exactly that point.  After the jump, I highlight a few of her major points:

Here is how the article starts out:

For a nurse, it’s time to hire an attorney when:

  • You are unsure whether you have legal rights in a given situation;
  • You think your legal rights have been violated, and you have gone through your employer’s organizational system without a resolution;
  • You have been served with lawsuit papers;
  • Your state’s Board of Nursing has notified you that someone has filed a complaint against you;
  • You have been offered an employment agreement and want it reviewed before signing;
  • You have an employment agreement, and the other party isn’t following the terms of the contract;
  • You are aware that an employer is knowingly violating a law; or
  • You believe that a facility is compromising patient safety, and your efforts to work within the system to correct the problems have been ignored or rebuffed.

That is pretty direct.  Later, Carolyn gives some more direction on when you absolutely need an attorney and how to hire one -

Nurses should always get an attorney when:

  • Served with lawsuit papers; or
  • Notified by a Board of Nursing that a complaint has been made, that the Board is investigating, and that the investigator wants to speak with the nurse.

In some instances, an in-house attorney for the hospital may be a first option. For example, if a nurse is asked to perform tasks that are contrary to his or her religious beliefs, in-house counsel may be able to review the applicable law and settle the matter internally. Moreover, if a nurse is served with lawsuit papers for a case in which he or she was involved as an employee of a facility, the facility’s attorney may handle the defense. However, in cases for which multiple defendants at the same facility are named, the nurse may be wise to get his or her own attorney, who will look after the nurse’s interests.

What kind of attorney do I need? Attorneys are expensive, generally charging $150 to $600 an hour. An attorney’s experience in the subject matter is very important. An attorney who charges $400 an hour but can give the advice that is needed in 15 minutes is going to be a more economical choice than an attorney who charges $150 an hour but needs to spend 3 hours sorting out the law on nurses, hospitals, or employer/employee disputes. So, hire an employment lawyer for employment issues, a nurse-attorney for Board of Nursing issues, and an attorney with experience in whistle-blower cases, if that is the issue.

Internet searches and referral from nursing organizations are 2 ways to start the search for an attorney. If you have the name of an attorney who sounds appropriate, call or e-mail with a brief description of your problem, so that you and the attorney can determine whether he or she is a good match.

Like nurses, attorneys want to provide sound advice, and if they don’t, they can be sued for malpractice. So, attorneys won’t want to give off-the-cuff advice or get involved in someone’s case unless they can get the facts straight, can review the law with the facts in mind, and can provide a carefully thought-out opinion or advice. Those things take time, and if the attorney spends the time, he or she will want to be paid. Advice attorneys usually charge from the time the client starts asking the questions. Attorneys who advertise that they give a free first consultation usually are litigators who take a percentage of the damage award rather than an hourly rate.

It makes sense for nurses to do some research before asking an attorney to become involved in a matter. If, after doing some research, the nurse believes he or she needs advice or intervention from an attorney, the next step is to find an attorney who has experience with the issue at hand, communicate with the attorney, determine the cost, and decide whether to make the investment.

There is literally nothing I can add to this, except that I charge flat fees, even for litigation, and I recommend using the attorney referral service of The American Association of Nurse Attorney’s (full disclosure – I am on this list and I am the chair-elect of the Texas Chapter) to find an attorney for license defense for nurses (and generally by nurse-attorney’s).

Marc

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