Transcript Legal Nurse Consulting

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.
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THE BASICS
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Law: originates from Anglo-Saxon term lagu
 Meaning:
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that which is fixed
Plaintiff:
A
person who seeks remedial relief for an injury
 Sues in a civil action (law suit)
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Defendant:
A
person or entity against whom a lawsuit is
brought
THE BASICS – CRIMINAL LAW
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Crime:
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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
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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.
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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
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3.
Act of omission or commission that has caused
harm to a patient
Proximate cause or causal connection
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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
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Standard:
A
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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
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Assessment
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Collect relevant patient health data
Diagnosis:
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Based on H & P, exam, and diagnostic test results
Treatment plan
 Implementation of the plan
 Follow-up/evaluation
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Reassessment and modification of the plan.
American Assn. of Nurse Practitioners
ANATOMY OF A LAWSUIT
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Exact steps/process varies by state
Begins with initiation of a lawsuit with an attorney
Filing of the complaint by plaintiff
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Answer
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Defendant’s response to the complaint
Discovery
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First document filed in a lawsuit
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.
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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
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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
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ANALYZING A CASE FOR AN ATTORNEY
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Initial contact with attorney
Has a case they want you to review
 Attorney requests:
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 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.
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ANALYZING A CASE FOR AN ATTORNEY
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Fee schedule should include:
Date
 Name and credentials
 Contact information
 Amount in dollars for services billed hourly
 Specific services offered
 Payment expectations
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 Within
30 days
 Late fee
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Some LNC’s get a retainer, esp. from plaintiff
attorney
SAMPLE FEE SCHEDULE
See: http://www.aalnc.org/?page=GrowingYourPractice#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.
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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.
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RECORD REVIEW
KEEPING TRACK OF TIME
In 15 minute intervals – round up or down.
 Keep track of all time spent on the case:
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Organizing
 Reading correspondences
 Reviewing the medical record
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 Keep
track how much time was spent on each section
Telephone calls with attorney
 Report writing
 Travel time
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Do not bill for:
Initial telephone call/contact
 Time spent doing invoice
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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
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 Much
easier to discuss findings
RECORD REVIEW
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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
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Look for (continued):
Labs, radiology, other diagnostic tests
 Physician orders
 Medications
 Nurses’ notes
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 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
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TIPS IN REVIEWING LONG TERM CARE RECORDS
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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.
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MDS should trigger “Resident Assessment
Protocols” (RAP’s; prior to 2010) or a Plan of Care
(POC)
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Should be updated based on needs.
TIPS IN REVIEWING LONG TERM CARE RECORDS
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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.
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RECORD REVIEW
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Look for:
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:
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 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.
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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
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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.
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WRITING A REPORT
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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.
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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.
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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”
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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”
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8.
Chronology of relevant events
“Case evaluation and standards of care”
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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”
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Defense:
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Plaintiff:
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“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.
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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
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Mutual agreement between the parties
Before trial, during 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
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SAMPLE INVOICE
RECORD DESTRUCTION & TAXES
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Destroy records when attorney give the OK
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Buy a good shredder
Take records to office supply for destruction
Income taxes:
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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
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LNCC (Legal Nurse Consultant Certified)
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Requires 2000 hours of legal nurse consulting within
the past 3 years (through aalnc)
MARKETING AND GETTING CASES
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Marketing:
 Word
of mouth
 Mailings – multiple
 Social media
 LinkedIn
 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
 MedLeague Support Services
www.medleague.com
 Just Google “legal nurse consulting”
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DOCUMENTATION BLOOPER #6
Between you and me, we ought
to be able to get this lady
pregnant.
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Thank you for coming
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And good luck!
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Questions?