DEFAMATION LAWSUITS AND THE NURSE

Nurses are increasingly being accused by employers of conduct that is against the NMC’s Code of Professional Conduct. This is likely to increasingly occur, in that the RCN support a system of nurse revalidation made by employers. Some of these claims are a matter of opinion, and are unlikely to be the subject of a claim of defamation. In what follows, I give examples of advice given to nurses (in an American context), who believe that they have been wrongly accused. American law on this subject differs only by nuance from that of the UK and other jurisdictions. My advice to all potential claimants is to proceed in a defamation case only if you have evidence of the falseness of the claim against you; can you prove that the accuser had not investigated the claim against you thoroughly (did not go through a process of due dilligence – acted with reckless disregard), and, thus, has repeated a damaging and unsubstantiated rumour?

If, after considering this, you may consider taking your case to a no-win-no-fee solicitor for a free consultation as to whether your claim is persuable, and, if so, to request them to inform the NMC that the claim against you is sub judice – awaiting judicial determination.
PROVING DEFAMATION
State rules differ on what an employee must prove to win a defamation case. Generally speaking, however, the employee must persuade the judge or jury of these five things:
•The employer made a false statement of fact about the employee. Statements of opinion (“I think Joe had a negative attitude”) can’t be the basis of a defamation claim. Nor can true statements, no matter how hurtful.
•The employer “published” the statement. In other words, the employer must actually make the statement to someone. (i.e. The NMC). Some states recognize “self-publication” as a way of meeting this requirement. Self-publication happens when the employer makes the false statement directly to the employee, who is forced to repeat it to others (for example, when asked by a prospective employer why she was fired from her last job).
•The employer knew or should have known that the statement was false. If the employer believes, in good faith, that its statement was true, there’s no defamation claim. However, if the employer acts with reckless disregard for the truth – by repeating a damaging and unsubstantiated rumor without checking into it, for example – that might support a defamation claim.
•The statement was not privileged. Many states recognize that candor and open communication are vital in certain relationships. Statements made in these contexts are privileged, which means that the speaker is protected from liability for making the statement. Many states recognize a qualified privilege – which protects the speaker as long as he or she acted without malice – for statements made in the context of giving an employment reference to a prospective employer.
•The employee suffered harm because of the statement. Certain statements are considered defamatory “per se,” which means that the law presumes the statement causes harm (and so the employee doesn’t have to prove it). For example, many states consider statements that someone committed a crime or lacks the necessary skills for his or her chosen trade or profession to be defamatory per se. If the employee has to prove damage, the harm usually involves another company’s refusal to hire the employee because of the statement.

SUING FOR DEFAMATION
If you think your former employer may have committed defamation, you should talk to an employment lawyer to find out whether your case is worth pursuing. These claims can be tough to win. The actual misconduct generally takes place in a private conversation that you aren’t privy to, so it can be hard to prove a defamatory statement was made. You’ll also have to show that the false statement was the reason you were turned down for a new job. And, in states that allow employers to claim a privilege for statements made as part of a reference, you’ll have to prove malice on the employer’s part.

Before you meet with a lawyer to assess your claims, gather any evidence you have. For example, had you gotten an offer letter or other indication that you would get the new position before your prospective employer pulled the plug? Do you have anything in writing about your former employer’s reference policy – or the actual statements that were made? (The NMC receive a statement detailing alleged misconduct) Did you hear anything from the prospective employer that made you suspicious? There are legal tools a lawyer can use to gather evidence of what was said to whom, but you should be prepared to explain what led you to believe that your former employer defamed you (and to hand over any relevant evidence).

CASE STUDIES
Can I sue my former employer for defamation of character for being fired due to being accused of being rude to those I supervise

I was falsely accused of being rude to those I supervised and I was fired because of their false accusations. I am a Registered Nurse and the job I was fired from was my first Nursing job and this has left me very distraught and upset and uncertain how this will affect me getting a nursing job in the future. I feel my character has been majorly assasinated and drug through the mud by the certified Nursing assistants who falsely accused me.

Christine C McCall, Administrative Law Lawyer Pasadena, CA.
‘Based on your factual summary, this is not a circumstance of potentially meritorious defamation claims. The reasons for your termination are by definition your employer’s opinion of you, and opinions are not subject to defamation law. Moreover, for there to occur defamation, there must be publication to a 3rd party of false statement of fact, not just publication to you. Then, there must be damages — actual losses — to you caused by the publication of the false … ‘.

Jeffrey Ira Schwimmer, Personal Injury Lawyer, New York.
As has been pointed out, you are referring to claims made against you by co-workers which can be characterized as opinion, as much as fact; and it appears that your employer chose to believe the others and not you. Essentially, you are referring to what is often referred to as a question of credibility, based on a “he said/she said” scenario. A war of credibility without any strong independent proof is not the kind of evidence that a defamation claim can be won on.

What the NMC needs to legally do (in my opinion), to successfully prove negligence, is to consider as factual that elements of liability are present:

Duty. Every person has a duty to act reasonably. Nurses, because of their specialized training, have a duty to care for their patients with the highest degree of skill and ability they can offer. Once a nurse assumes care for a patient for the shift, he or she has a duty to that patient for the entire shift.
Breach of duty. This is failure to exercise the degree of care that an average nurse would have used in similar circumstances. The plaintiff will compare your conduct with what another nurse would or should have done in a similar situation.
Causation. Was the breach of duty a substantial factor in causing the patient’s injuries/poor care?

I suggest that all nurses accused of negligence, who attend an NMC hearing, are represented by their Union’s solicitor, or by one paid for by private indemnity insurance.

lenin nightingale

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