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.

LNCC and CLNC – what do these initials mean, really?

Attorneys are practical professionals. They seek a legal nurse who consistently delivers an excellent work product and sound opinions. They also recognize that certification should be an indicator of experience and expertise in a nurse. Although LNCC and CLNC are often thought of as interchangeable, even by some nurses, they are not synonymous.

Brace yourself for an onslaught of initials.

The LNCC (Legal Nurse Consultant Certified) is the only credential recognized by the Accreditation Board for Specialty Nursing Certification (ABSNC), formerly known as the ABNS Accreditation Council, which is the only accrediting body specifically for nursing certification.

The LNCC is obtained through the ALNCCB (American Legal Nurse Consultant Certification Board); see http://www.AALNC.org:

The LNCC® program is accredited by the Accreditation Board for Specialty Nursing Certification (ABSNC), formerly the American Board of Nursing Specialties (ABNS). ABSNC accreditation means that certification programs have met high standards for testing.

To be eligible to take the examination, candidates must have the following at the time of application:
• current licensure as a registered nurse in the United States or its territories, with a full and unrestricted license
• a minimum of five years of experience practicing as a registered nurse
• Evidence of 2000 hours of legal nurse consulting experience within the past five years.

Those who meet the eligibility criteria and successfully complete the examination will earn the Legal Nurse Consultant Certified (LNCC®) credential” (and must re-qualify by exam every five years).”

Note there is no mention of a specific “course” even though the AALNC does offer continuing education webinars throughout the year, various online courses, and other educational resources. However, their courses are not a prerequisite for taking the LNCC exam.

The LNCC credential is evidence of knowledge-based practice as well as broader knowledge of legal concepts in a wide range of settings from all medical-legal arenas. LNCC designation measures overall competency.

The CLNC designation is acquired through the Vickie Milazzo Institute; see http://www.legalnurse.com:

“2 Simple Prerequisites for Becoming a Certified Legal Nurse Consultant

1. Complete the Basic CLNC® Certification which is included in all 3 CLNC® Success Systems: VIP, Executive and Basic.
2. Maintain an active RN license in the U.S. or Canada. A BSN degree is NOT required.
Exemptions from meeting any of these criteria will not be granted.

Whichever CLNC® Success System you choose, you’ll receive everything you need to know to get started as a highly paid professional consultant – 100% guaranteed. Our Certified Legal Nurse Consultants are 25 to 75 years old and live all over the U.S. in both rural and urban areas. There’s no limit on succeeding as a Certified Legal Nurse Consultant.”

The CLNC program is six days, either in person or online, and offers supportive mentoring as new LNCs start their business. It provides a wealth of information, teaches new nurses how to initiate and self-promote their new business, obtain sample work products from a highly successful businesswoman/LNC/attorney, and many nurses credit the system with “jump starting” their business.

The CLNC credential is achieved after passing an exam of the materials presented during the six-day course. No experience as an LNC is required, and while the course is accredited for continuing education (as are many others); it is not an accredited certification through ABSNC.

Many CLNC graduates later achieve accreditation as an LNCC after proof of 2000 hours of legal nurse consulting.

There are a number of LNC courses accredited for continuing education, both online and through traditional colleges and universities.

But there is no substitute for experience.

What Your Attorney Needs from You

You should ask this question at the start of each new attorney-client relationship. I am not referring to the attorney’s area of specialization or their orientation towards defense or plaintiff work. I am speaking about their business and personal preferences, their personality, their desires. Despite having your own (no doubt strong) personality, you must adapt yourself to the communication and business style of the attorney.

I have a good rapport with some attorneys who like to share personal information and do not bother to begin and end emails with salutations. They encourage independent thought, brainstorming of theories; we have a mutually respectful and somewhat casual relationship.

There are also very formal attorneys, recognized immediately by their communication style. Respond to them in the same manner they address you. Begin your emails formally, pay close attention to your grammar and do not try to woo them with your witty asides. These attorneys may have a sense of humor but they do not know you well enough to share it.

Most attorneys have a very specific idea of what they need. They may want a detailed chronology and your personal opinion, but they will keep your opinion in-house. They may ask for a second chronology that does not have your name on the report, or your opinion in that optional column. You are their private resource and they need the opinions of experts to be based on clinical facts, not your intuition or experience. Your value is in your invisibility even though/because they are relying heavily upon you.

Some attorneys simply do not know what they want. They may have a case that falls outside their comfort zone. They may ask you how to proceed with experts, and dependently seek input. While this may be flattering, it is the trickiest case to manage because you cannot cross the line between nursing and the law. You are never responsible for their legal decision-making and you certainly don’t want to be responsible for the wrong opinion.

Be comfortable with yourself. Never accept demeaning or verbally abusive behavior even when putting your ego on the back shelf. This is a challenge for most nurses. We are an opinionated bunch and our opinion is what gives us value. Nonetheless, remember that no matter how close your affiliation with an attorney may become, it is first and foremost a business relationship. Their chief goal is to advise and satisfy their client. You will be most helpful if you ask them what kind of report, what kind of information, and what type of presentation they need from you. Then deliver a product that is unequivocal and fact-based, because the one thing all attorneys need is the truth.

Still looking at those records?

I do not question any MD’s ability to review a medical record; that would be questioning their intelligence. But physicians do not think like nurses. In hospitals, they assess medical conditions; listen to the observations of support personnel, order the care they believe is appropriate, and move on to the next patient.

If all errors arose from the wrong order or a misdiagnosis, then physicians would be excellent in the role of chart review.

When things go wrong, it touches many disciplines. Mistakes are not neatly typed and easily seen in the record – oftentimes they are found in a barely legible note on the corner of a page that does not translate into scanned text.

Physicians rightly assume their orders will be understood and executed, and that the rest of the hospital team – nurses, respiratory therapists, physical therapists, radiologists, pharmacists, wound care specialists, etc., will take care of the patient and assess the effect of what the MD has ordered.

They rely entirely upon nursing staff to report deviations, labs that are out of range, subtle changes in vital signs, breath sounds and condition, unplanned outcomes – in short, everything that the physician is not there to see with his own eyes. If a change in the patient goes unnoticed, whose fault is it? Always the nurse – follow the chain of command from CNA to bedside nurse, charge nurse, even Director of Nursing – mistakes flow uphill.

Who is responsible for charting, medicating, listening to patient and family complaints, ensuring proper nutrition, accurate IV administration and knowing when the I&O indicates fluid overload or the patient is having an adverse reaction to medications or blood, or seeing a discrepancy between a malfunctioning monitor and what the patient exhibits? Who knows when to question a physician’s order and is responsible for calling that doctor and expressing their concern? Who is responsible for knowing every section of a chart and what is missing?

This is what nurses do every day at the bedside. This is not the role of a physician, and a physician cannot see a chart from the perspective of a nurse.

Can Anyone Create a Chronology?

[Encarta Dictionary: English (North America) chro-nol-o-gy (noun) 1. Order of events: the order in which events occur, or their arrangement according to this order.]

This simple definition is what many professionals conceptualize when they think “chronology”. If it were that simple, I could present a high school student with 1000 pages of medical records from physicians, facilities, hospitals, etc., and instruct them as follow:

• Create a basic four column table with headers across the top for the Date, Page Reference, Facility, and Event
• Enter every doctor’s order, every medication given, and the results of all x-rays and lab work.
• Include all vital signs, and every diagnosis that is made along with the physician and date.
• Use a separate row for each type of event and be certain not to miss any of the above.
• Write down the abbreviations and terms as you find them, but do not look them up
• After entering all information, sort by date, spell check your work and review the formatting
• Email the chronology to me within the next ten days

The result would be a 100 page chronology filled with errors and minutiae, faithfully recorded without knowledge of its bearing on the case, deviations from standard of care, definitions of medical terminology, or ability to connect the many dots.

A legal nurse doing the same chronology would be seeing the case unfold in her imagination, having walked those hospital halls, cared for the injured patient with comorbidities, understanding policy and procedure while juggling physicians, ancillary staff and family.

A nurse doing the same chronology would likely produce only 20 pages of data after sifting through the information that is not relevant to the case. There would be a fifth column with observations, definitions, research data and identification of unrelated conditions.

This chronology would be not an endpoint, but merely the first stage of organizing the course of events to allow a pattern to emerge. Only when the pattern of care is established will the inconsistencies become apparent to the medical eye.

Can anyone create a chronology? Yes. Does that make it meaningful? No.

Length does not equal quality, and recitation without filtering is a waste of time, resources, and a client’s money.

The Words We Choose

A nurse’s comment on last week’s blog prompted this week’s content. She asked me how an attorney could be impressed by her writing style if she had never submitted a report for his review. The reality is that others form opinions of us with the first contact that occurs, whether that is through verbal or written communication.

One of the hardest things to write is an introductory email to a potential referral source. What do we say to catch someone’s attention? How do we present ourselves in a positive fashion and highlight our strongest features? No matter how highly we value our services or believe in ourselves, the person we need to impress has his or her own priority. And it is not us.

Attorneys are no different from anyone else; their own needs take precedence. Ideally, your email to a potential referral source arrives in their inbox at the exact same moment they need what you have to offer. If your expertise is not needed, your offer of service may go unnoticed.

If your email includes a link to a site/article/story relevant to the attorney’s practice area, it may marinate in his Inbox like an electronic Postit, but that is far preferable to being ignored, or even worse, deleted. These are surefire ways to have your email deleted or ignored:

  • Writing a novella about your background
  • Failing to research his practice, so you offer him medmal services when he only does product liability
  • Describing yourself in superlatives or absolutes
  • Using poor grammar, misspelling words or otherwise appearing less intelligent than you really are
  • Saying the same thing everyone else does (like listing all the 40 skills you have that will make his practice run smoother, give him more time, make him more money and win him cases.

Keep that first email short, pointed, and professional; this says you respect his time. Making it longer will not ensure a response and might land you in the Trash no matter how well it is written. 

Deadlines & Commitments: What to Leave In, What to Leave Out (Bob Segar)

I know one good reason why there is a statute of limitations, and it has nothing to do with the law.

It has to do with human nature. Apparently, most of us were born with a dominant procrastination gene that expresses itself at every opportunity. Given the option of infinity, how long do you think some people would wait to file a claim? Just count the number of times someone calls us and declares “the statute is tolling!” (i.e., the sky is falling).

Why is it tolling? Most often, the deadline is looming because the claimant waited until the last minute to find an attorney, or the attorney waited until the last minute to address merit, or the expert took too long to review the records and prepare an affidavit, or in general, life happened and it is human nature to save the hardest work for last.

We have a statute of limitations because someone had to take control of this gene.
We have final exams because without them, most students would study for the immediacy of one test rather than retain the data for a “final” test. Trust me on this; I have four children.

There is a time to punch the clock, a time beyond which we are tardy, an alarm clock that awakens us, and a snooze button that apologizes for waking us up.

I need deadlines. I do. I need goals and objectives because without them, I am at sea. If I find it difficult to prioritize work or decide what onerous task needs doing first, I can let deadlines be my guide. But I always know that what I am really doing is finding a rational reason to put off until tomorrow what I should have done yesterday.

I’ll take jurors for 100, Alex

Jurors are called upon to make incredibly important decisions, and while they may be instructed to “stick to the facts”, those facts can be difficult to parse out. Both sides will argue for their client, and they will use every weapon from accusation to rationalization to “make their case”.

A good trial attorney knows that keeping it simple is best; that is why they pick a “theme”, a central point around which to build their case, independent of how many people are being fingered for wrongdoing. The theme should be constant: “This man would be alive today but for the negligence of xyz in monitoring basic vital signs.”

Behind this simple statement is an extremely complex and highly developed game plan geared towards subtly asking jurors to apply their own sense of right and wrong to their decision. Once the facts are clearly laid out, and all has been presented to them, jurors are asked to make difficult choices independent of personal morality (but who can really do that?).

I have talked about clinical nurses serving as testifying expert witnesses, and legal nurse consultants working behind the scenes to analyze medical records and develop a case. In many states, there is a third way to become involved in the legal world of healthcare, and that is choosing to serve as a fact witness about your review of medical records.

In this role, you take what you know about a medical situation and explain it to the jurors in a way that makes sense to them. You are not testifying against another healthcare provider; you are merely relaying the information found in the record, and explaining the more complex medical issues to jurors as lay people. This sounds a lot like talking to family members in the hospital, and in a way it is.

You are not rendering an opinion; you are informing, and your information can help clear the fog of legal arguments in the minds of those oh-so important jurors.

I See How It Is

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.

Offshore Record Reviews

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.

Closed Head Injuries & Strokes: A Primer for the Legal Professional

Closed Head Injuries & Strokes: A Primer for the Legal Professional

Head injuries or brain damage can occur anywhere – in the workplace, in an MVA, in medical malpractice, toxic torts, a domestic fall, and environmental exposures.

Litigated head injuries often arise from two sources:

  1. Accidents
    1. blunt trauma (fall, violent blow or MVA)
    2. penetrating trauma (gunshot)
    3. Medical causation (stroke)
      1. ischemic (a clot blocking blood flow to a major artery)
      2. hemorrhagic (rupture of a major artery causes damage to the brain)
      3. TIA or Transient Ischemic Attack (symptoms resolve within 24 hrs)

    In all instances, brain injury is affected by blood: either blocked flow(ischemia) or bleeding that starves one area while adding pressure to another area, damaging tissue. The location of the injury is the most important determinant of the severity and likelihood of recovery.

    Key Concepts

    • Rate and degree of recovery after brain injury is quite variable
    • The most common form of traumatic brain injury is the subdural hematoma, with a mortality rate ranging from 50 – 90%. [1]A significant percentage of these deaths result from the pressure on the brain that develops in the days after injury. Treatment of the SDH depends upon the location and age of the lesion. Because bleeding is not static, “Early and sometimes repeated CT scanning may be required in cases of clinical or neurologic deterioration, especially in the first 72 hours after head injury, to detect delayed hematoma, hypoxic-ischemic lesions, or cerebral edema.”[2]
    • Approximately 20-30% of patients will recover full or partial brain function. However, post-operative seizures are relatively common in these patients.
    • Although recovery from TIA (transient ischemic attack) occurs within 24 hours, these patients are at a high risk of falls because they may regain mobility before being aware of their surroundings.
    • Strokes arising from blood clots usually require anticoagulation therapy to prevent further clotting, but improper medication management can result in a fatal hemorrhage
    • Because patients can “go bad” quickly, frequent monitoring of vital signs, ICP (intracranial pressure) measurements, lab values, pupil checks and level of awareness is crucial.
    • A critical part of assessment includes changes, even by one point, in the Glasgow Coma Scale

    The Glasgow Coma Scale[3] (GCS) numerically represents the level of consciousness and is based on a 15-point scale for estimating and categorizing the outcomes of brain injury. The patient who is unable to respond verbally or follow commands can nonetheless have a reflexive response to painful stimuli. Families do not appreciate this form of assessment, but the patient’s physical response tells a great deal about how the brain is processing this noxious stimulus. The following signs are associated with a poor prognosis:[4]

    • A Glasgow Coma Scale less than 8 in the field
    • A Glasgow Coma Scale less than 5 in the ER
    • Unequal/changing pupil size
    • Presence of alcohol at the time of injury (alcohol increases bleeding)
    • Motorcycle accident (direct head impact and no airbag)
    • Problems with ventilation, further depriving the brain of oxygen

    A patient with an acute brain injury is often placed into a medically induced coma to protect and allow the brain to rest by slowing metabolism. Mechanical ventilation controls oxygen and carbon dioxide levels that can aid in reduction of swelling, and sedation allows an override of the patient’s breathing, which is often labored and dysfunctional.[5]

    Pain should be managed effectively because it can lead to a rise in intracranial pressure. An intubated patient is treated with short acting sedation and analgesia until time for weaning.

    Establishing the presence of pain and suffering in the unconscious patient includes knowledge of impending disaster (even with death cases), knowing the difference between purposeful movements and reflex, and evaluation of post-injury residuals.

    In order to put post-injury impairment into perspective, it is important to know who the patient was prior to injury. This information is sought by defense counsel in the determination of financial responsibility, but is equally important to plaintiff’s counsel in supporting a reasonable demand.


    [1] US Dept of Health and Human Services, ACR Appropriateness Criteria® head trauma. Bibliographic Source(s)

    Davis PC, Brunberg JA, De La Paz RL, Dormont D, Jordan JE, Mukherji SK, Seidenwrum DJ, Turski PA, Wippold FJ II, Zimmerman RD, Sloan MA, Expert Panel on Neurologic Imaging. ACR Appropriateness Criteria® head trauma. [online publication]. Reston (VA): American College of Radiology (ACR); 2008. 13 p. [51 references]

    [3] Herr K, Coyne PJ, Key T, et al. Pain assessment in the nonverbal patient: position statement with clinical practice recommendations Pain Manage Nurs 2006; 7:44–52

    [4] Marion DW, Find all citations by this author (default).

    Carlier PM Department of Neurological Surgery, University of Pittsburgh School of Medicine, PA 15213. Find all citations in this journal (default).

    The Journal of Trauma[1994, 36(1):89-95]

The Perfect LNC

Would you like to know what it takes to be a legal nurse consultant? The average LNC will be a nurse with a minimum of five, preferably more, years of clinical experience in the hospital/OR/ICU/CCU or nurse case manager arena. This nurse is intelligent, competent, independent, confident, and willing to try something new despite misgivings. S/he can communicate verbally and in writing.

This nurse has a reliable income stream, because it takes a while to get a business up and running. “Don’t quit your day job” is our mantra, unless you are a salaried employee in a law firm. The panic of economic stress can abort an LNC’s career before it has a chance to succeed.

Here are some of the features that characterize the legal nurse consultants that I know:

  • You take your work home with you – your home will probably be your office
  • You develop marketing skills and become familiar with business sites like Linked In, polish up your resume and think about business cards, marketing brochures, etc.
  • You are comfortable with basic software like the suite of Word programs and Adobe Acrobat, and pay strict attention to your email inbox
  • You develop a style of analysis and critical thinking that allows you to communicate with your attorney, insurer, or whomever is your client
  • You find a niche in which you are comfortable, and make it known that this is where you shine – neonatal, pediatrics, cardiac, wherever
  • You offer informed opinions on LinkedIn or Yahoo LNC Exchange groups so that your name becomes familiar
  • You distinguish yourself from a paralegal; you do not need to know the letter of the law – your value is in your nursing experience and medical knowledge
  • You learn to look beneath the surface of everything
  • You do not stop caring about patients, but you are now an advocate for the truth, a fact-finder, a researcher, a communicator of your findings
  • You learn to anticipate what the “other” side will use to support their position and identify the weaknesses in your case– you do not allow your attorney to be surprised in a deposition or courtroom
  • When you come up against an obstacle, your first inclination is to solve it before asking for help

 Being a legal nurse consultant is not the same thing as being a patient advocate.  It is finding the medical evidence that supports the truth.

 It is about seeing what others miss, and believing in your work product and yourself. Most importantly, it is about learning, because every case is different, research evolves, even standards of care change. No one can assure you of success, but you can be successful if you believe in yourself and are willing to invest the time in preparation. Take advantage of all the free information that is out there, the inexpensive webinars, the textbooks and the conferences. You will never stop learning, and that is the greatest gift of any career.

Plea(s) and Thank You

It 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.

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?