Nurses are an essential component of any medical system or healthcare facility. We have all received healthcare from a nurse for various reasons. Whether at a hospital stay or even at a routine check-up. Like all conscientious healthcare providers, many nurses fear being sued by patients. The reality is nurses cannot be sued in Wisconsin as a named party.
How can this be? In Wisconsin, the exclusive remedy for all medical malpractice actions by patients fall under Wis. Chpt. Chapter 655. Chapter 655 governs health care liability and establishes an injured patients and family’s compensation fund (“the Fund”) to ensure Wisconsin healthcare providers and their employees. Chapter 655 only allows for suits against “healthcare providers” which are defined as “a physician or a nurse anesthetist for whom [Wisconsin] is a principal place of practice” and “a hospital.” Nowhere in the statute are nurses mentioned as healthcare providers. This goes the same for physician assistants and nurse practitioners.
While nurses may not be directly named in a medical malpractice suit, nurses may be sued through their employer. Chapter 655 does provide insurance coverage for the actions of employees of healthcare providers, including nurses, even though medical malpractice claims cannot be brought against them. It states:
The fund shall provide occurrence coverage for claims against health care providers that have complied with this chapter, and against employees of those health care providers, and for reasonable and necessary expenses incurred in payment of claims and fund administrative expenses.
Wis. Chpt. § 655.27(1) (emphasis added). This is good news for nonhealthcare providers, who do not need personal medical malpractice insurance. The Supreme Court in Patients Compensation Fund v. Lutheran Hospital-LaCrosse explained how this concept was in line with the original intent of the Wisconsin legislature in creating chapter 655:
Each person conducting the health care provider’s business is not required to go out and buy his or her own malpractice insurance. A holding that the liability of those conducting a health care provider’s business is not covered under the health care provider’s primary insurance cap would encourage each of those persons to protect himself or herself by obtaining his or her own professional liability insurance coverage. This scenario would likely increase the cost of health care and decrease its availability, as those who could not afford to purchase insurance to protect themselves might choose to exit the health care field or to charge more for the services provided. Such result would be contrary to the underlying purpose of ch. 655.
223 Wis. 2d 439, 457.
Chapter 655.005 further supports the notion that employees of healthcare providers such as nurses may not be sued. It provides insurance coverage for claims against the “employee of the health care provider” for “damages of bodily injury or death due to acts or omissions of the employee of the health care provider acting within the scope of his or her employment and providing health care services.” Wis. Ch. § 655.005(2). This is true even though such health care provider employees are not subject to medical malpractice liability under Chapter 655.
In conclusion, if the malpractice claim relates to conduct of a nurse it is the hospital or physician that employs the nurse that gets sued. Typically, the complaint will contain reference to the nurse and assert the basis of liability of the named party, e.g. the employer or negligent party. The downside of not being named is that the nurse will not have the right to attend trial as a party but may have a line item on the verdict that makes specific reference to them.