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Legal Speak

Series: Nurse on Trial Part 4

Published July 16, 2008 3:10 PM by Tony DeWitt

Lawyers are held to a higher standard than most folks. When lawyers sign a pleading they make a representation that the arguments they present and the facts they have pleaded are true or are expected to have evidentiary and legal support. Under Missouri Rule 55.03 a lawyer has certain responsibilities:

(b) Representation to the Court. By presenting or maintaining a claim, defense, request, demand, objection, contention, or argument in a pleading, motion, or other paper filed with or submitted to the court, an attorney or party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

(1) the claim, defense, request, demand, objection, contention, or argument is not presented or maintained for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery

Missouri courts give these rules force by sanctioning attorneys who fail to conduct a good faith investigation into the facts and law of their case. Unfortunately, courts are often very lax about enforcing these rules.

The Attorney General's office, once it received the file from the Board of Nursing had two responsibilities.  The first was to conduct a good faith investigation to determine if the claims that Neely violated state nursing law were supported by evidence. Then the Attorney General had a duty to get an unbiased expert opinion as to whether there was a case for discipline.

The Attorney General did neither. It took everything the hospital's witnesses said as gospel, and completely ignored Neely's contrary statements. Yet, had it even opened up the medical records and done the things that any reasonable nurse would have done in reviewing this file, like look at the history and physical, admission and discharge notes, physicians progress notes, nurses notes, and nursing assessments, it would have known that the case failed at the beginning. As one court put it, "the rule cautions litigants to look before leaping." Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir.1986); see also Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986) ("The point ... is that every lawyer must do the necessary work to find the law before filing the brief.").

Here the evidence in the medical records was significant in a number of ways. First, the records did not disclose anywhere that the nurses who found the patients "obtunded" at 0800 had called the patients' physicians to alert them to the change in condition. There was no mention of a report to physicians about a problem related to a change of mentation on March 13 anywhere in the record. Similarly, there was no request for any medication or otherwise to treat the purported change in condition. 

The Attorney General filed affidavits made by nurses who were not even caring for the patients on the day at issue.  It had no witness to Neely having done anything improper. And, in additional, all the physical evidence had already been destroyed.

With the court date fast approaching, I told the Attorney General that the only proper thing to do based on what I saw in the records was for the Board to drop the complaint. The Board refused, and on January 22, 2008, we went to trial.

In my next post we'll look at the opening day of the hearing.

posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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