Monthly Archives: February 2011

Merit in an Upside Down World

As practicing nurses, we take care of the sick, observe them for declines in condition, and rectify the wrongs done by others as a matter of course.  If we put our patients first on a busy shift, our hands are literally full – too full, sometimes, to pick up a pen and document the care we have given.

The result of a horrible day may be a life saved and a catastrophe averted, but if we did not write it down, it simply did not occur years later when our work is reviewed.

This was brought home to me in a case I recently reviewed for merit.  The lack of documentation clearly provided legal support for negligence.  Did I truly believe this patient had gone four hours in the emergency room without one vital sign being taken?  No, I did not.  But two years after the fact, no one can prove those vital signs were taken.

I did know that at the end of those four hours, the patient had crashed.  His first recorded systolic was in the 60’s, he was bleeding out, and he was on a stretcher with the head of his bed elevated to at least 75 degrees.  This was a breach in the standard of care.

The second breach of care was less of a breach and more of an accident – the kind that can occur with any outpatient colonoscopy – but which nonetheless resulted in massive internal bleeding.

The third breach occurred as his circulatory system was overloaded with too much fluid over too short a time for a person with heart disease.  Failure to recognize this resulted in congestive heart failure and pulmonary edema.

The fourth negligent act was failure to recognize the signs of internal perforation with resulting crepitus. Think Michelin Man as he was wheeled off to emergency surgery two hours later.

Any nurse would be appalled and sympathetic to the plight of this helpless patient.

However, as legal nurse consultants, we must step beyond what was done wrong, and focus on the event that definably resulted in permanent damages.  Without those permanent damages, patients are not reimbursed for near-fatal events and a medmal attorney will not take this case.   

Of all the things that happened to this patient, ultimately only one event will matter.  The gap in vital signs that could have deprived his brain of oxygen will account for his residual cognitive deficits.  Deficits mean a loss of earning capacity and a formula by which to assess damages.  That gap of time during which care probably was given but was not charted is the critical event on which this case will proceed, if at all.  A cautionary tale for all of us, and doesn’t that feel a bit upside down?

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Cliches of Independence

I have always heard that clichés were the conversational crutches of concrete people; that the truly bright and abstract among us do not think with the thoughts of others. But I have come to believe that behind every cliché is a solid foundation of truth, and the clichés surrounding independent employment are no exception.

It’s “feast or famine out there”. This is true, and truer still is the fact that independent work often results in famine and forgets to feast. For the newly independent legal nurse consultant, know this: never count on work that is promised to you, and never ever turn down work because you think you will be too busy to manage it. The attorney that calls you to check on your availability for a case may sound very sincere, and he may know that he needs your expertise. What he may not know is whether the adjustor that ultimately pays the bill will allow him to hire you. S/he may have miscalculated the tolling of a case, or the client may get cold feet, or simply go elsewhere for legal advice. I have congratulated many new LNC’s who are ecstatic that someone called them after seeing their brochure, email or marketing packet and said “I’ve got a case…”. The LNC will then turn down a job that paid half as much as their independent hourly fee because they want to remain available for this higher paying consult. Do not do this. Do not “count your chickens before they are hatched” for a very good reason; you cannot predict the hatch rate.

Attorneys know this lesson well. The very successful medmal attorney will only take a “case that has legs” (another cliché, although sometimes the legs take cases in the opposite direction). This is an attorney with “deep pockets”; it took me a while to learn all the nuances of that cliché. The majority of attorneys will take all but the most openly hopeless case in the knowledge that you “never know where your next meal is coming from”. They can juggle hundreds of cases if they have good support staff and strong organizational skills, but some will juggle those cases even without the requisite staff and skills, which is one of the reasons the retainer check, records or agreement never arrive as promised.

The other trap for a new LNC is the Friday afternoon call for an expert that is needed immediately. If I could recall the nurse who said it I would give her credit for the following: “Failure to plan on your part does not constitute an emergency on my part.” I really love that sentiment even though it is not a cliché. Fellow nurses, know that with rare exception, last minute requests are the result of poor planning. Poor planning goes hand-in-hand with failure to notify you that “Oh that case settled”. Do not be discouraged. The Declaration of Independence was the beginning of hard work, not the end of it. “Pick your battles wisely”, “Don’t get too big for your britches”, and “Don’t give up your day job” when you choose the route of independent LNC work. It really is a wonderful life.

As I write this, there are four projects that have been promised, three open cases I am working and two more that are in the pipeline. You will notice though, that I have time to write this blog. I have learned not to “put all my eggs in one basket” (clearly, poultry farmers have much wisdom to share). The projects were to be spaced so that one began as another ended, but I have no doubt they will hit in overlapping waves – less of a feast and more like Cloudy with a Chance of Meatballs. Oh well. I could eat.

The Deposition Experience

Today I sat in on the deposition of a woman whose medical records I had analyzed. She was being deposed by the large company against whom she has brought suit. To any legal nurse consultant who has never witnessed a deposition, I highly recommend it. Of course, being neither the deponent nor the one taking the deposition, I was free to sit back and enjoy the show.

What was fun about this deposition? When you hear your observations quoted directly in a question to the deponent, it takes your analysis out of the world of paper and connects it to a real person. Even when you are sure of your work, you still hold your breath waiting to hear the reply you know should be forthcoming.

This deponent did not disappoint. She was an attorney representing herself, a choice I would not have made were I in her place. She was a master of obfuscation and passive aggression, managing to sound and seem concurrently ignorant, forgetful, and clever. I actually admired her a bit.

I would never have the temerity to repeat a phrase six times that I knew the opposing counsel did not want to hear.

I would certainly never have asked opposing counsel to hand tally my medical bills if he wanted the sum that badly.

I would not have set the “land turtle-speed” record for timely responses. No answer was given directly. No opportunity was missed to appear confused and uninformed. No reply was given in under two minutes.

That particular shade of red in opposing counsel’s face would have alarmed me to no end.

This was nothing like the many deposition transcripts I have read, with compliant claimants whose attorneys have told them to “stick to the facts” and answer as briefly as possible.

I could not stay for the whole deposition, which the attorney assured her would take the entire seven hours allowed by Georgia law, given her style of response. She blamed him for this. She refused to be photographed because she did not like the way she looked today. She offered a cell phone picture that was more flattering, but of course, the phone was dead and alas, no picture could be retrieved.

Yes, it was an eye-opening event. I cannot wait to do it again.

Here’s (Who’s) Looking at You, Kid

Legal nurses, like expert witnesses, attorneys and politicians, are only as credible as their public image. While we have faith in the integrity of our friends and fellow professionals, we are not immune to the intentional harm inflicted by others.

Most of us unwittingly sow the seeds of our own demise. We engage in light-hearted email bantering back and forth with friends and colleagues. We know to screen our Facebook friendships and confine our LinkedIn connections to business, but still…

We do love voicing an opinion when asked, and even when not asked.

Our professional listservs allow many opportunities to hone our critical thinking skills and play beat-the-buzzer at guessing elusive diagnoses, arcane abbreviations and other mind-teasers thrown out by our colleagues.

We might even voice a public opinion on an expert’s skill level. Woops.

What we say today will be here tomorrow, and the next day, and the year after that, forever circulating and percolating in cyberspace, molded into sound bites that hardly represent the original intent.

In fact, this recently happened to me, or rather, I did it to myself. I wrote a short article called “It’s not life… it’s social media” (http://www.caseconsultant.com/Social%20Media.pdf). I still support most of what I wrote about not wanting a Facebook account, but I now have 160 Facebook friends, attend Martindale Hubbell online conferences, and recently presented a webinar on the use of LinkedIn. My disdainful article on social media lingers on.

Recently, a fellow LNC posted several sites that construct an image of you based upon your shopping habits, public profiles, emails, etc. The images were not accurate portrayals, but there are people who use their free time to make mischief for the rest of us.

As the NYPD day sergeant would say, “Let’s be careful out there” as we fall in love with the sound of our voices and the sight of our words.

Hold Nothing Back

I work with attorneys.  I know that they provide medical experts with selective records targeting their area of expertise.  Some of this is cost containment and some of it is shaping the view of the expert. This practice of selective omission and inclusion does not work for me as a legal nurse consultant. I want everything.  

An expert witness works within a narrow window and focuses upon rendering an informed opinion.  This expert is critically important, but how many will you need in a complex medical action? 

You only need one legal nurse consultant to work your medical case.

If that person is me, send me every scrap of data in your possession.  I am a bloodhound. If you omit information, I will know it.

In asking for the entire file, I have a targeted, cost-efficient yet comprehensive system for discovering critical information, discarding irrelevant data, and knowing what is missing.  My chronology clarifies the diagnostic picture and directs me to the authoritative research that will support my recommendations and conclusions.

The most relevant data is often the most elusive. That chicken scratch that passes for cursive writing may be at odds with the typed dictation. The casual comment to the ER nurse or EMS may not be admissible as testimony, but is no less relevant to the case.

In dealing with this abundance of information, I find the the pleading, affidavits, interrogatory and responses to be critical. These documents reveal the mindset of the claimant and the temerity of the attorney. I need that.

If  I am working a defense case, I know that an over-reaching complaint is an open invitation to investigating past medical care. Discrediting one specious charge will cast doubt on others. It is a rare individual who enjoys perfect health until an unwitnessed slip and fall in the drugstore.

If this is a plaintiff case, I am equally wary of the client who casts a wide net of complaints, or the nondisclosive client who selectively provides data.

In this world of healthcare litigation, we cannot truly function knowing this thing but not that thing.  The practice of picking and choosing data will come back to haunt both plaintiff and defense attorneys…particularly if the opposition has me on their team.