Your Attorney Knows this – Do You?

Regardless of which side retains you as a legal nurse consultant, you are working on issues of defense.

The public is perpetually confused about the term “defense” in a lawsuit, but the distinctions are clear. Civil torts encompass personal injury in all its non-criminal forms of malpractice, negligence, product/premises liability and toxic torts, and every area of business disputes. Defense and plaintiff attorneys are mirror images of each other and can reliably predict the opposition’s plan of attack.

In a civil tort, the accused party is represented by defense counsel; the accusing party is the plaintiff.  Resolution for the successful plaintiff involves financial restitution to make the injured party “whole” either through mediation, arbitration or trial. The exception occurs when the case is dismissed in summary judgment by the judge who finds inadequate support for accusations. If dismissed with prejudice, the accusation cannot be brought again; without prejudice allows the claimant to re-file with a different set of facts and accusations.

In a criminal tort, the person who has been accused of a crime is also represented by the defense. The accusing party is the prosecutor who represents not the victim, but the People in crimes against society. Resolution comes in the form of punishment if the accused is found guilty. Society as a whole is the “plaintiff” since the behavior of the accused is a threat to all, not just the intended party.  This distinction leaves the victim free to file a civil tort against the accused whether or not he/she is found guilty of criminal behavior.

In both civil and criminal torts, the need for a defense is predicated upon an accusation. As a plaintiff LNC, you will defend the injured party in civil torts by mounting an offensive that verifies the four “D”s and is bolstered by research and expert testimony. As a defense LNC, you will defend the accused party with an offense of mitigating factors, intervening/superseding proximate causes or outright proof of no wrongdoing.

The Defense Department protects the United States with a proactive offense, as much as the government allows. The old adage that the best defense is a good offense is the application of this basic principle.

It is imperative that legal nurses understand both sides of every case in order to be to be equally comfortable in both worlds and proficient in our nursing roles.

Irrespective of which side engages you as a consultant, you are playing both offense and defense.

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