Lessons From Winning Cases

Two Nurses Who Spoke Up, Lost Their Jobs, and Sued

Carolyn Buppert, MSN, JD

Disclosures

April 08, 2016

In This Article

Finding the Right Attorney

Attorneys take retaliation cases on a contingency fee basis. That means that the attorney provides his or her services without charging the client each month. The client and attorney agree that the attorney will receive a percentage of the damages—usually between 33% and 40%—if the case is won. The attorney receives nothing if the case is lost. Usually, the client must pay the attorney's expenses on a monthly basis, such as filing fees, copying, couriers, shipping, and travel expenses. Expenses for a case can be $50,000 or more.

Given that an attorney is providing work without pay, perhaps for a very long period, attorneys want to take only those cases that they believe they can win. So a nurse may find it difficult to convince an attorney to take his or her case. And, if the nurse's case is won but the employer appeals, the nurse may need to find another attorney to handle the appeal. That means additional attorney fees.

Sometimes, as in Boly's case, a court will award damages plus the plaintiff's attorney's fees. But that is unusual. In some cases, such as Boly's, a court will award punitive damages in addition to lost wages.

Few attorneys focus on whistleblower cases and retaliation—but the nurse who is thinking of suing needs just that kind of attorney or, like Boly's attorney, one who is very experienced at litigation. "There is a steep learning curve with these cases," says Allweil. The attorney must be familiar with various parts of the state law: the public health code, nurse practice act, employment code, whistleblower laws, and so on. In Landin's case, the ANA's code of ethics and the state public health laws were integral in showing the jury that Landin was called upon to report the patient safety problem.

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