Category Archives: Attorney-Talk

Last week, I had fun.

I manage my husband’s forensic psychological practice, and last week he had a deposition. He loves depositions. Really.

The data he needed to review, however, was oppressive; he had performed five Fitness for Duty evaluations over 18 months on a professor not well enough to teach three out of those five times. Between each visit were innumerable telephone calls alternating between anger and accusations, anxiety and fear.

Five charts to organize, papers to shuffle, and “where did I see that?” I surprised him with the same work I have provided my attorneys for years – a medical chronology. Five charts became a five-page table arranged in SOAP format– Subjective, Objective, Assessment, and Plan. I was a hero.

Deposition Day: the attorneys arrive with their respective armload of records, between them producing twenty exhibits. In short order, my husband had distributed a copy of my chronology to both attorneys and ten minutes later, no one referenced their paper charts. My chronology was now Exhibit #21 and provided the focus for the next 90 minutes. The defense and plaintiff attorneys huddled together and swore they had never seen such a wonderful document.

How is that even possible? How do attorneys enter a deposition without this organization? These attorneys specialize in employer law, human resources, EEOC and civil rights violations, and chronologies were not part of their repertoire.
I really should not repeat the inappropriate comments from my husband during deposition. A few were on the record; more were off, and all produced peals of laughter that emanated down the hallway. Work should not be this much fun.

The reward for my chronology could well be a notice of deposition to testify as a fact witness. That is perfectly okay – I can just reference my own chronology.

Occasionally, rarely, I have an “ah-ha” moment. This is one of those moments.

Today I engaged in a very interesting back and forth with a nurse-turned-attorney who was polling LNC fees across the country. He lives in a very economically depressed part of the U.S., and attorneys are loath to spend even 30/hr for a legal nurse consultant, much less the 110-125 most of us charge.

Yet, even in his economy, those same attorneys do not blink at paying paralegals 75/hr and I hear the average billed wage for paralegals nationwide is 95/hr.

And I know why.

Attorneys know the value of a paralegal who can do much of their work. The paralegals perform a huge amount of the legal (a.k.a. leg) work behind complaints, interrogatories and depositions. They know what documents to request, keep track of deadlines, arrange the attorney’s schedule and pay attention to the minutiae that is oh-so painful to most attorneys. They are time-keepers, email overseers and meeting coordinators. They are necessary.

Here is my”ah-ha”. Legal nurses do the same thing. The difference is that they handle medical analysis, chronologies, expert location, disease comprehension, accident reconstruction, trial exhibits, statistical research and analysis of covariance. I’m not entirely sure what the latter is, but my husband pulls it out of his academic hat every time one of our children complains about a statistics course. Legal nurses take the pain out of producing medical questionnaires and lines of questioning for physician depositions, and make sure that the attorney knows exactly what records to request, what is missing, and what is nonsensical.

So clearly, my course is simple. All I need to do is convince the uninitiated attorney that when medical issues are involved, the value of a legal nurse equals that of his paralegal. In this parallel universe, my greatest advocate is the paralegal, who has many more things to do than decipher a medical record or try to construct a chronology around a critical event, or coax an expert down out of a tree.

Nurses and paralegals. Unite.

Is offshore outsourcing the future of medical records services? I do not think so; the purpose of a medical chronology is to isolate critical data for the attorney and his experts.
Every attorney wants a focused chronology that isolates relevant facts with an explanation of why that fact is important. This allows them to formulate questionnaires and affidavits and prepare for depositions. They do not want hundreds of hours of billing.
The reason there are thousands of pages is because facilities, hospitals and providers are asked to produce each and every document in their possession. An all-inclusive compilation of thousands of pages contains lengthy and irrelevant information, making it difficult for an attorney to find what s/he is looking for. This type of chronology requires only literacy, not discrimination on the part of the reviewer.
By contrast, nurses know hospital and office records, abbreviations and handwritten documentation, and we can weigh care delivered against known standards and guidelines. We are selective in the data extracted, and concentrate on the seminal event while noting pre-existing conditions and discrepancies in care. We do not skip pages that are difficult to decipher and we scan, choose and discard data rapidly. The merits or defense of a case take shape during this review, and those findings are shared immediately, as well as requests for missing documentation.
Without this informed review of records, the attorney is left with hundreds of pages of data that is a timeline, not a focused evaluation. Unless we go to a PCS-based compensation system for medical malpractice, I do not see offshore outsourcing replacing legal nurse reviews.

TweetIt is Friday.  Your phone rings at 3pm and a desperate attorney needs an expert by Monday morning.  In reality, he identified the need for an expert weeks ago, but the search was postponed in hopes of mediation or a settlement that did not occur.

Or.  Your own deadline is looming and you know that out there, hidden among the .pdf’s and scientific abstracts, is the data that will bolster your opinion.  You can support or refute a position or diagnosis, determine pre-existing conditions or alternate causation; you just cannot find the authoritative research. 

You put out the call.  Listservs, forums and exchanges exist for such crises and sure enough, other nurses come to your aid.  Within short order, several have emailed you with names, articles, resources, whatever you need, and you can breathe again.  They answered your pleas – did you remember to say thank you?

It is gratifying to help others, and even though you will one day return the favor, the moment for appreciation is now.  Say thank you right away to the person who dropped what they were doing to help you.

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?

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.