CorrectCare

Legalities
You’ve Received a Subpoena. What Now?
A primer on preparing to testify in a deposition or trial
by Nancy J. Brent, RN, MS, JD, and Mary V. Muse, MSN, RN, CCHP

When a correctional health care nurse is handed a subpoena, the first reaction often is shock. Next comes worry, fear, even panic: “Why me?” “I didn’t do anything wrong.” “How do I handle this?"

While it’s well-known that health care administrators and physicians are commonly called into court on patient care cases, nurses are beginning to recognize that they, too, can be sued or subpoenaed to provide trial testimony or a deposition.

This is even more evident in corrections, with its highly litigious environment. Individuals who are incarcerated in prisons or jails are entitled to health care. If that care is not delivered, if it’s delayed or if there’s negligence in the care provided, the inmate may file a suit alleging violations of various federal statutes or the U.S. Constitution.

There are two ways a nurse will be informed that he or she has to provide testimony. One way is a notice of deposition or notice to appear at trial. This is a formal notice sent to the nurse’s or employer’s attorney because the nurse is a named party (i.e., defendant) in a suit. The second way is a subpoena, sent or delivered directly to the nurse or employer, requiring the nurse to provide testimony as a witness (e.g., expert witness, occurrence witness).

It is important to note that a subpoena differs from a summons. A summons is a document served upon a defendant being sued in a lawsuit that requires the recipient to file an answer with the court by a certain date.

EXPECT SOME STRESS
“I don’t even remember this patient.” “I’ve never been to court.” “Will someone go with me?” “It’s scary to receive a subpoena.”

No one likes to testify at a deposition or trial, and correctional health care nurses are no exception. Studies show that nurses find litigation in any form highly stressful. Prior to working in corrections, they may not have experienced a health care incident that drew them into a legal situation. They may question why they have to become mixed up in the case.

Perhaps the nurse was involved only in the intake process, triage or emergency services. Perhaps the nurse was responsible for rounds, collecting and distributing “request for health care” forms, or for medication administration. Or maybe he or she was the supervising nurse.

Whatever the situation, the nurse interacted—or should have interacted—with the patient. The patient now believes he has suffered an injury and is entitled to compensation as a result of the nurse’s action or inaction. Or the family may bring a suit after the death of a patient. For instance, a nurse may come on duty at the change of shift and receive a patient who is to be transferred to a hospital for emergency care. The patient later dies. The family sues, and the nurse, who had been on duty for only a few minutes, is named in the suit.

BE PREPARED
“Can I review the medical records to see what I wrote?” “Is there somebody I can talk to for advice?” “What about my license?” “I might have to get out of corrections.”

Testifying in a deposition or at trial can be less traumatic if the nurse is prepared. Unfortunately, many do not receive any instruction, which might significantly reduce their stress. Even worse, preparation is often made difficult due to poor documentation in the medical record, unavailability of the medical record, concern for other health providers named in the suit, the length of time between the alleged incident and the suit, and inadequate time to get ready for the testimony.

Nevertheless, preparation is essential and must begin early. Notifying the institution’s legal department (e.g., state’s attorney) will be the first step. The next steps will differ somewhat depending on whether the nurse will testify as an occurrence witness, a named defendant or an expert witness. With the help of the deponent’s or trial witness’s attorney, the correctional nurse can meet most testimonial difficulties with success.

One purpose of any deposition or testimony is to share the truth about an incident with those present at the deposition, or with the jury and/or judge during a trial. Guidelines to achieve that and other goals can be helpful. Although the list of guidelines provided here (see box at right) is not exhaustive, and is not to be used unless the same principles are identified by the nurse’s own legal counsel, depending on the nurse’s role in testifying, these parameters can lay the groundwork for successful testimony.

Testifying at a deposition or at trial is an ordeal no one wishes to experience. With proper preparation, however, the experience can be made more tolerable and, at the same time, can help you to share what you observed or what you did and why you did it in the situation that prompted the lawsuit.

— About the authors: Nancy J. Brent, RN, MS, JD, is a nurse attorney based in Chicago. Mary V. Muse, MSN, RN, CCHP, is director of nursing, Cermak Health Services of Cook County, Chicago. Contact Brent at (773) 728-3663, or Muse at (773) 869-6498.

The authors also presented a session on this subject at NCCHC’s 25th National Conference on Correctional Health Care, held Nov. 10-14, 2001, in Albuquerque, NM.

Disclaimer: The authors emphasize that the information presented here is not intended as legal or any other kind of advice. Specific legal or other questions should be addressed to an attorney or other appropriate professional.

[This article first appeared in the Summer 2001 issue of CorrectCare.]