Legal Nurse Consulting HEIDI H CROSS RN MSN

Legal Nurse Consulting HEIDI H. CROSS, RN, MSN, FNP-BC, CWON UPSTATE UNIVERSITY HOSPITAL SYRACUSE, NY

OBJECTIVES � Describe the basics of the United States legal system � Define the practice of legal nurse consulting � Discuss the steps involved in analyzing a case for an attorney as an expert witness � Describe other necessary steps for legal nurse consultants.

THE BASICS � Law: originates from Anglo-Saxon term lagu � Meaning: that which is fixed � Plaintiff: � A person who seeks remedial relief for an injury � Sues in a civil action (law suit) � Defendant: � A person or entity against whom a lawsuit is brought

THE BASICS – CRIMINAL LAW � Crime: � � � An act that is forbidden by law or the omission of an act required by the law. Offenses against the general public Deter, punish, rehabilitate persons who perform criminal acts Forgery, burglary, murder, assault, battery, theft, rape, and false imprisonment Proof of guilt must be beyond a reasonable doubt

THE BASICS – CIVIL LAW � � � Deals with rights of persons or entities An injury is alleged to have occurred To make the plaintiff whole again Remedy involves money or compensation 90% of cases settle, or case may go to trial Proof is met by a preponderance of the evidence

MEDICAL MALPRACTICE � Professional negligence � Failure to act as an ordinary prudent person or reasonable person would do under similar circumstances. � An act or omission by a health care provider or facility � The treatment provided did not meet the accepted standards of care in the medical community � Caused injury or death to the patient, with most cases involving medical error.

DOCUMENTATION BLOOPER #1 He was eating his tray so I did not examine him.

THE BASICS - NEGLIGENCE 1. Duty: � 2. There must be a breach of duty � 3. Act of omission or commission that has caused harm to a patient Proximate cause or causal connection � 4. Must be owed to the patient Must be evident between the breach of duty and the harm Damages or injuries must be suffered by the patient as a result.

STANDARD AND STANDARDS OF CARE � Standard: � A model accepted as correct by custom � Standards of care: � The degree of care that a reasonably prudent person should exercise under the same or similar circumstances. � Example: turn/position every 2 hours � Keep heels elevated

STANDARDS OF PRACTICE FOR NURSE PRACTITIONERS � Assessment � Collect relevant patient health data � Diagnosis: � Based on H & P, exam, and diagnostic test results � Treatment plan � Implementation of the plan � Follow-up/evaluation � Reassessment and modification of the plan. American Assn. of Nurse Practitioners

ANATOMY OF A LAWSUIT Exact steps/process varies by state � Begins with initiation of a lawsuit with an attorney � Filing of the complaint by plaintiff � � � Answer � � First document filed in a lawsuit Defendant’s response to the complaint Discovery Gather all information about the case � Includes document requests, depositions, physical exams, admissions � � Trial or settlement

DOCUMENTATION BLOOPER #2 She stated that she had been constipated for most of her life until 1989, when she got a divorce.

WHAT IS A LEGAL NURSE CONSULTANT? � Registered nurse who uses expertise as a health care provider and specialized training to consult on medical-related legal cases. � Do NOT need certification � Assist attorneys in reading medical records and understanding medical terminology and healthcare issues. � Bridges gaps in attorney’s knowledge. � Expert witness.

WHAT DOES A LEGAL NURSE CONSULTANT DO? � Screen cases for merit � Assist with discovery � Conduct medical research � Review medical records � Identify standard of care � Prepare reports and summaries � Create demonstrative evidence � Visual aids � Locate or act as an expert witness.

TYPES OF CASES LNC’S REVIEW � Medical and dental malpractice � Personal injury � Toxic torts � Product liability � Workers’ compensation � Disability � Criminal cases with forensic findings � Risk management

ANALYZING A CASE FOR AN ATTORNEY � Initial contact with attorney � Has a case they want you to review � Attorney requests: � Fee schedule � CV � Case needs to be within your area of expertise! � Need to know standards of care � No conflicts of interest � Strict client and patient confidentiality � Should be aware of any deadlines.

ANALYZING A CASE FOR AN ATTORNEY � Fee schedule should include: � Date � Name and credentials � Contact information � Amount in dollars for services billed hourly � Specific services offered � Payment expectations � Within 30 days � Late fee � Some LNC’s get a retainer, esp. from plaintiff attorney

SAMPLE FEE SCHEDULE See: http: //www. aalnc. org/? page=Growing. Your. Practice#CMLCP

DOCUMENTATION BLOOPER #3 She can’t get pregnant with her husband, so I will work her up.

CONTRACT/LETTER OF CONSULTING AGREEMENT � Not always required/done � Generated by lawyer or by LNC � Reconfirms fee, payment expectations � Request/expectations for retainer, if any � Reiterates confidentiality of case � May include separate agreement of confidentiality.

DISCOVERY � “The act or process of finding or learning something that was previously not known. ” � Request for production of documents. � Purpose: to limit surprises at trial, narrow the issues to be decided, and establish support for legal positions. � Varies from state to state, but generally any document is potentially “discoverable. ” � Check with attorney before putting anything in writing.

RECORD REVIEW

KEEPING TRACK OF TIME � In 15 minute intervals – round up or down. � Keep track of all time spent on the case: � Organizing � Reading correspondences � Reviewing the medical record � Keep track how much time was spent on each section � Telephone calls with attorney � Report writing � Travel time � Do not bill for: � Initial telephone call/contact � Time spent doing invoice

RECORD REVIEW � Attorney may send paper records, or electronic records (paperless), or both. � Hopefully includes a synopsis of the case � Attorney may send only partial records, or complete records. � Sometimes well organized, other times not. � “Bates stamping”: all records are paginated � Much easier to discuss findings

RECORD REVIEW � Should look for: � Face sheet, DRG’s, ICD-9 codes � Consent forms � Discharge summaries and nursing instructions � Emergency medical services � History and physical examination � Operative records � Perioperative nursing records � OR report: length of time in OR? � Consultations

RECORD REVIEW � Look for (continued): � Labs, radiology, other diagnostic tests � Physician orders � Medications � Nurses’ notes � CAN BE THE MOST VALUABLE PART OF THE RECORD! � Nursing assessments � Nursing care plan � Dietary/Nutrition � Skin sheets/assessments � Physical, occupational, speech therapy � Discharge instructions

TIPS IN REVIEWING LONG TERM CARE RECORDS � MDS (Minimum Data Set) of a nursing home � Comprehensive Assessment � Functional abilities, cognitive status, indicators of delirium, fall history, ADL status, diagnoses, wounds, nutritional status, restraint use, continence, and more. � Compare with nursing and therapy notes. � Completed on admission and quarterly. � MDS should trigger “Resident Assessment Protocols” (RAP’s; prior to 2010) or a Plan of Care (POC) � Should be updated based on needs.

TIPS IN REVIEWING LONG TERM CARE RECORDS � Federal Regulation Title 42: Public Health, Part 483 � Subpart B: Federal requirements for LTC facilities � Sets the standards by which a nursing home’s performance is measured. � Resident rights, quality of life, assessment, quality of care, dietary, nursing, and physician services, infection control, rehabilitative services.

RECORD REVIEW � Look for: STANDARDS OF CARE

WHERE TO FIND STANDARDS OF CARE? � Local standards vs. national standards � Have to be familiar with local standards � National standards may be more stringent � Nursing literature, textbooks, regulations, Joint Commission Standards � Evidence based national guidelines: � Example: WOCN Lower Extremity Arterial Guidelines, WOCN Pressure Ulcer Guidelines. � Look up ANY topic on www. guidelines. gov

DOCUMENTATION BLOOPER #4 The dermatologist made a recommendation for treatment of her face which is not of a serious nature.

GIVING AN OPINION

GIVING AN OPINION � “Opine” only on your area of expertise/scope of practice! � Do NOT comment on other professionals � Nurses may comment/opine only on nursing standards of care. � Physician comment on medical standards of care.

AFFIDAVIT OF MERIT � Early in lawsuit � By plaintiff’s expert witness � Expert is in the same field as defendant health care practitioner � Statement by expert that the case has merit; the standards were not met � Requirement for affidavit varies by state � Document has to be notarized

WRITING A REPORT � Not always requested or required � May just need “verbal report” � If written, discuss in detail with attorney what s/he is looking for before writing � Any other documents you need for your report? � Prepare an outline � Remember: you never get a second chance to make a first impression! � Do not comment on other healthcare professionals outside your scope/area of expertise.

WRITING A REPORT � Explain what happened. � The reader is probably not as familiar with the details of the case as you are. � State ideas clearly and directly. � Be SURE every word, sentence, and paragraph adds value. � Address the “failure to’s” in the Complaint or the Bill of Particulars � Refer to and rebut the opposing side’s expert opinions.

WRITING A REPORT � Explain “medicalese” � Check and double-check grammar, spelling and punctuation! � Don’t say anything you are not prepared to defend on the stand. � Avoid absolutes, or be prepared to back them up. � Avoid “always, ” “never, ” emphatic language, exclamation points, inflammatory statements. � Use the active voice.

WRITING A REPORT – NEEDED ELEMENTS 1. 2. 3. 4. 5. Your letterhead at the top Date of report Attorney’s name and contact info (for whom the report is written). Patient/client name and case number Brief statement of your background, education, and experience that qualifies you as the expert.

WRITING A REPORT – NEEDED ELEMENTS 6. “Materials reviewed” � � � � � Complaint and any court documents Medical records Depositions Other expert reports Doctor’s office records Any provided emails or correspondences Photos Facility policies Do not leave out anything that you have reviewed.

WRITING A REPORT – NEEDED ELEMENTS 7. “Summary of Case” � 8. Chronology of relevant events “Case evaluation and standards of care” � � � What are the standards? What standards were met? (Defense expert) What standards were breached? (Plaintiff expert) How did the facility meet or fail to meet those standards? Be specific

WRITING A REPORT – NEEDED ELEMENTS 9. “Conclusion” � Defense: � � Plaintiff: � � “After a careful review of the records, there is no negligence found on behalf of ……. . , to a reasonable degree of nursing certainty. “It is my opinion that Mrs. ___sustained a _____ due to negligence on the part of the nursing staff at _____ who failed to meet the standards of care, to a reasonable degree of nursing certainty. “These opinions are based on the medical records I have reviewed. I reserve the right to amend or modify the opinions expressed here upon receiving further information. I am being compensated for the time I have spent on this case. ”

DOCUMENTATION BLOOPER #5 I will be happy to go into her GI system, she seems ready and anxious.

DEPOSITION � Expert is deposed by opposing attorney. � Purpose: attorney can find out in detail what the opposing expert will say at trial. � Need to offer an honest, well-supported opinion within the scope of your expertise. � Court reporter is present; expert witness is sworn in. � May be video taped for later analysis.

DEPOSITION/TRIAL Testifying = terrifying! 1. Get payment for deposition time ahead 2. Listen carefully to the question 3. Understand the question 4. Take a breath before each answer, especially if you are really anxious 5. Take your time answering 6. Respond but never volunteer any information. 7. Answer “yes” or “no”; no “uh-huh’s” 8. Don’t guess or assume anything. 9. Speak slowly and clearly and with confidence

DEPOSITION/TRIAL Be courteous 11. Don’t lose your temper 12. Avoid absolutes 13. TELL THE TRUTH! 14. Dress appropriately 15. Sit up straight and confidently 16. Look at jury; speak to them directly 17. Try not to look at your attorney 10.

SETTLEMENT Mutual agreement between the parties � Before trial, during jury deliberation. � 90% of cases settle even before trial � Not necessarily an admission of guilt � Plaintiff agrees to give up any further action for an agreed upon sum of money � Involves negotiation between plaintiff and defendant attorneys � � If you don’t hear from the attorney for a few months, contact him/her and ask if case has settled.

BILLING INVOICES ETC � Invoice should be sent out as soon as possible. � Detailed accounting of time spent on case. � Supply attorney with W-9 for income taxes � Keep track of all invoices submitted

SAMPLE INVOICE

RECORD DESTRUCTION & TAXES � Destroy records when attorney give the OK Buy a good shredder � Take records to office supply for destruction � � Income taxes: Might need help from accountant � Form 1040: Estimated Tax Payments Worksheet � Form 1040 -ES to submit tax payment quarterly � Keep all check stubs, running list of payments received � Don’t forget tax deductions �

CERTIFICATION � Don’t need any special training or certification � Just your nursing expertise! � Just in case, here are some sites: � www. legalnurse. com � www. theparalegalinstitute. edu � www. aalnc. org � www. lncstat. com � www. legalstudies. com � LNCC (Legal Nurse Consultant Certified) � Requires 2000 hours of legal nurse consulting within the past 3 years (through aalnc)

MARKETING AND GETTING CASES � Marketing: � Word of mouth � Mailings – multiple � Social media � Linked. In � Facebook � Create a website � Business cards � Just get the word out!

OTHER HELPFUL WEBSITES � American Association of Legal Nurse Consultants www. aalnc. com � The J. E. R. K. (Juris Educational Resource Knowledge). www. thejerklnc. com � LNC tips: www. lnctips. com � Med. League Support Services www. medleague. com � Just Google “legal nurse consulting”

DOCUMENTATION BLOOPER #6 Between you and me, we ought to be able to get this lady pregnant.

� Thank you for coming � And good luck! � Questions?