Category Archives: Attorney-Talk

The Phenomenon of Memory

Repeatedly, we reviewers of medical records note distortions between immediate recall of an injury and successive changes in the description of said event.

Some perceive this as malingering, or at best, an attempt to inflate the value of a legitimate injury.

While exaggeration can be used for financial gain, the phenomenon of false memories is common to us all. Equally, a traumatic memory may be suppressed and forgotten, only to arise unexpectedly when the proper cueing occurs. This is seen with true Posttraumatic Stress Disorder. A patient burned at work functions well at home and around town, until driving past the place of their injury. Memories flood and incapacitate them.

When my children share memories of their childhood, they most vividly recall the negative events that stand out as an aberration. This would be more palatable if they equally recalled the care and love we had shown them on a regular basis, but it is not so. Daily and expected comfort and support, sadly, is not memorable. Pain and loss are more likely to be imprinted or suppressed in their developing psyche.

Within the context of an accident, the injured party must describe the event repeatedly for EMS, the ER, family, their personal physician, subsequent medical specialists, and their attorney.

If patients recover from their injury, eventually their support system will slowly fade away. They no longer need home health or mobility aids, their physicians see them less frequently, and their physical therapy eventually ends. Their family expects a return to normalcy.

But the patient may not have returned to their normal state. And that, to an injured person, is unacceptable. A new physician may hear a different rendition of the original accident, one that serves to impress upon the specialist the heinous nature of the injury.

The most accurate recall, in my experience, is in the emergency room, barring a head injury or loss of consciousness. When the description changes over time, our duty to the truth requires a methodical review of the medical records. In this way, we can often pinpoint the deviation in recall, allowing those who represent the patient to measure the accuracy of the event, and the reliability of their client’s memories.  AMA


Projecting Costs: the Larger Picture

When it’s time to factor future medical costs, a common concern is that the projection may be insufficient to meet a patient’s needs. The strong temptation is to include all potential complications, and choose the highest-end durable medical equipment. However, this is rarely the best approach to meeting that patient’s needs. The resulting exorbitant projection may result in rejection of an otherwise reasonable settlement.

Professionals may confuse Life Care Plans with Medical Cost Projections:

A Medical Cost Projection, or MCP, is confined to reviewing medical records and projecting the costs of a specific surgical procedure or medical course of care. Some of those costs are projected for the lifetime of the patient, or the weeks remaining on a worker’s compensation claim.

Performing a Medical Cost Projection does not require professional certification and although classes are available, many MCPs are constructed by individuals who seek guidance from peers.

MCP’s are factored by geographic adjustment, reimbursement by private insurance or state Board fee schedules, and vary in quality and accuracy depending upon the contractor’s experience.

A Life Care Plan, or LCP, does require certification since these plans are often associated with depositions and testimony at trial. When a patient has a catastrophic injury or illness, the plan may involve a visit to the patient’s home, interdisciplinary communication, coordination, and anticipation of lifelong healthcare needs.

Life Care Plans are based upon actual charges and are not limited by the concept of reimbursement. The plans require a careful assessment of the patient’s lifetime needs, family resources, community and educational support, medical supplies, and potential complications.

In predicting future complications, Nurse Life Care Planners have the advantage.

In the hospital setting, nurses oversee every aspect of patient care and coordinate scheduling among respiratory, physical, occupational and speech therapies, dietary consults, and diagnostic procedures. Certified Nurse Life Care Planners are attuned to the patient’s need for and response to medication, the status of their hydration, mentation, skin integrity, and early signs of complications. Our experience and utilization of nursing diagnoses guide us in prevention and management.

While physician diagnoses support the need for medical care and shape the bones of an LCP, nursing diagnoses, of which there are 250, flesh out a life care plan. A nurse with experience in burn care, TBI, cerebral palsy, amputations or the elderly, knows what constitutes a preventable complication. Our plan recommendations align with nursing diagnoses and our only boundaries are those established by the Nurse Practice Act of our state.

But whether a Life Care Plan is constructed by a nurse, social worker, counselor or rehab supplier, the goal remains the same: planning and funding for care that will maximize the patient’s potential for independence while adding to the quality of their remaining years.

You thought this case had merit

Every law firm has a unique philosophy that guides them in their decision to represent a plaintiff or plaintiff’s estate. With that in mind, if a case is turned down, it is always for a good reason that applies to that particular firm. Most attorneys want to clearly explain reasons for denial in layman’s terms with the potential client.  No firm wants to be sued for professional negligence, so part of the explanation will emphasize that the plaintiff or family are free to seek a second legal opinion.

If you are asked to review medical records so that the attorney can determine the merits of a potential case, keep these points in mind:

  • The medical facts were not compelling during the initial review, or perhaps were not “facts”.
  • The firm does not handle this type of case – be certain you have a good understanding of the firm’s preferred specialty area
  • The case has merit but will require more money and resources than the firm can apportion
  • The firm handles high value cases referred to them by smaller firms who find merit, but cannot afford the cost of experts, records, depositions, etc.
  • The medical injury is a high-risk surgery or other event with known complications that are difficult to define as negligent
  • The permanent damages are minimal – the patient feels that past expenses support the severity of damages but in truth, future loss and costs determine the ultimate value

Know the firm’s philosophy, preferred type of work, tolerance for financial risk, and most importantly, the attorney’s first-brush legal opinion of the case. That opinion, more often than not, is accurate.

Maintaining the Veil of Anonymity

Just as new LNCs are feeling their way, so are new attorneys. And plaintiff counsel may not have a flexible budget until they have been in practice for a while.

Personal injury and med-mal attorneys who tell their clients that “they won’t pay unless their case is won” still have to cover expenses. Workers compensation attorneys must convince the injured worker that a body of work is important enough to warrant a portion of their settlement.  So even though a merit screen or a chronology is warranted, that attorney may worry that the client will not see the value in such services. After all, they expect the attorney to know if their case is viable.

On rare occasion, a new attorney may ask a nurse consultant to meet directly with a patient in case evaluation, and to accept payment for their service directly from the patient. This practice is not recommended for the independent nurse contractor.

I want my attorney to be comfortable, but I also know that my value resides in anonymity. When asked if I will accept payment from the patient directly, here is my reply.

I understand that you will pass this expense on to your client, but it is in both of our best interests to maintain a veil between me and your client.
1. An assessment for merit is a clinically objective appraisal.
2. Clients (as you know) are emotional and feel they must compel someone to agree with them.
3. My relationship as an independent contractor is with you – you are my client.
4. Merit may be in question because of inconsistencies in the client’s complaint, or because they are over-reaching, or because they equate malpractice with unforeseeable complications and mistakes. This is pivotal, but a hard pill to swallow.
5. My value to you is my invisibility because you are the principal – you are the person they want to hire – I am in the background.
6. My work product is always confidential and my opinion is withheld from experts, even when they use my objective chronology. I cannot control this process if I am accessible or responsible to anyone but you.

That said, I can write a short paragraph that explains exactly what I will be doing and why an experienced nurse should evaluate medical records.

If there is a question of merit and you decide not to take the case, I can craft a short and clear layman’s explanation of the medical injury/condition for you to incorporate into your response.

Please let me know if I can be of any assistance to you in this matter.

I look forward to a long working relationship with you.

All the best,

With the Right Chronology, You too May Enjoy a Deposition

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.

The Autopsy – a Dying Recommendation

In recent decades, there has been a marked drop in autopsy requests – an unfortunate occurrence. In the distant past, any death within the first 24 hours of admission triggered an autopsy. Any unexplained death in or out of the hospital; any accidental death with questionable etiology required an autopsy. JCAHO required 20% of hospital deaths to undergo autopsy as part of hospital accreditation; that requirement ended in the mid 70’s.

One objection to autopsy comes from families and we can well understand their reluctance. The loss is acute and painful; the thought of mutilating a loved one overrides the practical need to identify the cause of death.

In my review of medical records, an autopsy trumps any postulation by a treating physician. Why? Because when a patient is gravely ill, they often have a number of morbid conditions, any one of which could be fatal. A physician has the natural tendency to see the cause of death from the perspective of their specialty.

Virtually useless is the Death Certificate. Death certificates do not provide root cause, only an end result. Respiratory or cardiac arrest is inevitable in death, but those diagnoses provide no etiology; they cannot address the “why” of death.
If an employee dies in the course of work, has an MI, stroke or other “illness death”, an autopsy can offer the evidence needed in an otherwise uphill battle for causation.

In negligence or malpractice death claims an autopsy is invaluable, but all too often the family’s last concern is dissecting the cause. When questions later arise, that most valuable source of information – the patient and their true cause of death – is irretrievably lost.

From a public safety perspective, we can only speculate on the number of infectious diseases, chemical exposures and related information that may be lost.

Regardless of JCAHO recommendations, it is incumbent upon healthcare professionals to offer this option when the cause of death is not crystal clear. “Natural causes” is the most frustrating and misleading nomenclature in the healthcare dictionary.