Nurse May Have Grounds for a Defamation Suit

An RN says another nurse accused her of having dementia and spread this falsehood to other nurses and administrators.

The state Board of Nursing (BON) also received an anonymous complaint against the RN. The BON held a hearing with the RN, clinic administration, and others, but the board has yet to make its determination. The RN has denied this allegation and wonders if she has any legal recourse.

This situation is disturbing. Any false accusation is cruel, especially when it casts doubt on the ability to practice one’s profession competently.

Libel, slander, or both?

In a previous blog, I discussed the tort of defamation — comprised of the “twin torts” of libel (written words) and slander (spoken words). In this RN’s situation, it appears that the false information was spread mainly through spoken words. But it’s likely the false allegation that the RN has cognitive issues was also written down. The evidence presented at the BON hearing may reveal this documentation.

I’m going to assume that the RN had an attorney for the board’s hearing and that the attorney made it clear during the hearing that these accusations were false and, therefore, defamatory.

If the board rules in the RN’s favor, this provides additional support should the RN file a defamation suit against the nurse who stated the falsehood (primary publisher). The RN can also file a defamation suit against any clinic staff and administrators who repeated the allegations (re-publishers).

The attorney who handled the BON hearing can also handle the defamation case if they have litigation experience in these cases. If the RN hires a different attorney specifically for the defamation case, it’s crucial that they work with the attorney who represented the RN at the BON hearing. Collaborating will help ensure that all evidence presented at the board hearing is presented in the court case.

The trial jury will evaluate the various circumstances in the RN’s situation to ascertain the interpretation of the spoken and written words. It will specifically determine if the spoken and written words about the RN were interpreted by those who heard or read them as a joke or defamatory.

If the jury determines the false information was defamatory because the false accusations have been raised about the RN in her professional capacity, they are per se defamatory. Damages are presumed in slander and libel per se cases if the jury returns a verdict in her favor. Damages would include compensatory damages, punitive or exemplary damages, and non-economic damages.

Tips to keep in mind

If you find yourself a victim of untrue allegations in your capacity as an LPN, RN, or APRN, seek legal representation for both a BON hearing and a possible defamation suit.

Whether you’re a nurse or nursing administrator, keep these tips in mind:

• Always be sure that what you are saying about another staff member or administrator is true.
• Don’t spread untrue gossip in writing or verbally to retaliate against a colleague.
• If you’re a nursing director, be certain to carefully investigate any complaints that come to your attention from nursing staff, residents, or others. And only report the actual results of a thorough investigation to third parties (e.g., nurse agencies, human resources).
• Always discipline a nurse colleague in private so that what you are saying can’t be overheard.
• Always adhere to your workplace’s policies concerning speaking about other staff (usually available in your Code of Conduct).
• If you face false accusations, keep a diary of when they occurred, by whom, and what you did to counter those accusations. Silence is never the right approach under such circumstances.
• Educate yourself on your state’s defamation law.
• Remember that when you state or write something untrue about a colleague, if the colleague proves defamation occurred, he or she doesn’t have to prove loss of wages and future jobs. The court presumes these losses.

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