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Are nurses legally covered if something happens to a patient when they continue caring for patients even after clocking out per supervisor request?

Friday November 1, 2013
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Question:

Dear Nancy,

Our nurse manager wants us to clock out on time even when we are not finished working. Some nurses have clocked out then return to continue caring for their patients. Are the nurses legally covered if something happens when caring for the patient after clocking out?

Jena



Dear Nancy replies:

Dear Jena,

The reason your employer wants you to clock out, but to continue to provide care to patients is so it can avoid paying eligible non-exempt employees for any overtime they may accrue while on the clock. You can learn more about it by contacting your state department of employment security. Most often, the website for the agency will have instructions on how to report violations of the state statute on overtime pay and also provide you with information about non-exempt status, how many hours/week are considered overtime (generally 40 hours per week) and other information.

If there were a patient injury or death during the provision of care after a nurse clocked out, the lawsuit that would be filed by the patient's family would allege that the nurse was professionally negligent in the care of the patient.

The employer might attempt to avoid liability (it would be brought into the suit under a respondeat superior theory—as the employer, it bears responsibility for the actions of its employees) by saying that you were not an employee because you clocked out and therefore should not have been providing patient care. As a result, any injury that occurred, the argument would continue, would be your own individual liability.

This practice is not helpful to you as a nurse employee. A consultation with a nurse attorney or attorney in your state would be a good idea in order to get further information on the legal precariousness of participating in the employer's scheme. Likewise, the attorney could provide you with advice about clocking out when patient care is not complete, its impact upon your wages, and how to stop the practice with your protection as a current employee.


Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.