Category Archives: New LNC Advice

You thought this case had merit

Posted on June 8, 2016 | Leave a comment

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.

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Posted in Attorney-Talk, LNC Practice Building, LNC Skill Development, Medical Record Review, New LNC Advice

Maintaining the Veil of Anonymity

Posted on June 23, 2015 | 2 comments

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,

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Posted in Attorney-Talk, LNC Skill Development, New LNC Advice

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

Posted on January 19, 2014 | 2 comments

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.

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Posted in Attorney-Talk, LNC Skill Development, New LNC Advice

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Writing Your First Report

Posted on January 11, 2014 | 2 comments

There is no “correct” way to write a consultative report, and so much depends upon what your attorney wants.  What do you think the attorney needs to see?

This is just my personal style. The first thing I write is an introductory paragraph that cites the patient’s name, claimed injury, and brief description of that injury and residual damages. I end it with my opinion, right up front. This may be the last sentence I actually write, but it should be prominent, with any disclaimers.

I might then have a section that lists the supportive evidence. Bullets are great for this. I follow with mitigating information that may work against the claim, probably in paragraph form, to allow your positive bullet points to take center stage.

I also have a bullet list of pre-existing or comorbid conditions that influenced the outcome of the injury. If these conditions are likely to be unfamiliar to the attorney, I will footnote rather than clutter up this section with parenthetical references. If there is a complicated concept I may use a graphic (who wants to describe a foot orthotic or a fundoplication or ICP screw when a simple image says everything). I only use one or at the most two to maximize the impact without my report resembling a comic book.

What comes after depends upon the type of report. If I have done a chronology, I do not include all that data into the report – that is why I wrote a chronology. If it is a stand-alone report, I will include more information about the timeline of events and injury, but a chronology is always preferred.

This is where I would address standards of care, if applicable, contributory negligence, and how the case might have resolved but for those issues, whatever they may be.

If I can clearly see the opposing position, I will point that out and offer any counter points.

I end with a list of considerations for the attorney to pursue. This includes the experts that he will need to support his case; specific records to request (always get the ones that predate the event and the most recent since you will rarely have all of either). No matter how strong the evidence, I know that an expert “will be needed to confirm the…” because the attorney cannot base his case upon my opinion. Attorneys will often go forward with a mediation without an expert, and with great success. The decision is theirs.

Elements I like:

• Bullets, as mentioned – using phrases instead of complete sentence structuring allows me to express things succinctly and with more impact

• The use of only one font unless I do something different in a section header

• Bolded headers in a larger font, usually in dark gray so that it stands out but isn’t too heavy

• Sentences that are no longer than the ones in this blog

• A header beginning on page two that lists “Confidential Attorney Work Product”, with case name under that and the page number under that.

• A complete absence of the use of first person – my opinion is based upon objective evidence, not my feelings

• Absence of emotional input – state the facts clearly and strongly and they will speak for themselves – “this poor dear lady” is just not my style and does nothing to support the case. The attorney will often use that language in his pleading.

• I end with appreciation for the consult, state my availability for further communication, and offer to review further medical records as they arise or fulfill other needs such as expert location

• I sign with “Respectfully Submitted” even if it is an attorney I work with all the time, because it is respectfully submitted

• If I used reference materials for the report, I will cite them.

It is a “process”, and you will find a way that works best for you. There was a time when my reports were in paper, like a portfolio. But in those days, records came in banker’s boxes. Shudder. For quite some time, all data exchange has been electronic between the attorney and me. Records have to be in pdf form; a product like Adobe Distiller AC with its ability to OCR, combine files and reorganize pages, is a must.

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Posted in New LNC Advice

What Your Attorney Needs from You

Posted on January 10, 2014 | Leave a comment

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.

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Posted in Attorney-Talk, LNC Skill Development, New LNC Advice

Your Attorney Knows this – Do You?

Posted on October 13, 2013 | Leave a comment

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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Posted in New LNC Advice

How Much Time Does it Take to Create a Chronology?

Posted on June 27, 2013 | Leave a comment

How long does it take to compile a chronology from 5000 pages of medical records? It really does vary with each case. Sometimes a law firm will ask me not to produce a chronology with the goal of saving money; “just focus on xyz”. That is fine for an expert witness, but not for a legal nurse who is responsible for knowing about and explaining the medical issues of a case.  Invariably in a complex case, searching for a piece of data down the road or even later in the week will consume much more time than documenting it in the beginning.  This is true for pdf or paper records.

In medical malpractice, 5000 pages means hospital records and a range of healthcare provider data. Sometimes the sentinel event is clearly defined in a narrow time frame; healthcare prior to that point, while important to know, may be irrelevant to a wrongful death. When I receive a large paper case, the  first thing I do is heave it on the table and begin rapidly sorting into a stack that I know I will not need (but will keep), a stack that does not look important but may become so, and a stack that requires close scrutiny.

I work from the scrutiny pile in detail. Eventually, I will see a reference to something in my “maybe” stack so I return there to pull the page. By now, I have a feel for the case and will spot other important pages to pull. Every piece of paper that I reference in the chronology is retained in a new stack that is now taking shape. When all the data is entered, I sort it chronologically and read it again from a fresh perspective; chronological order makes it easier to identify missing records or redundant care.

I make a copy of that pertinent reference stack for the attorney. Oftentimes, my attorneys do not use or want Bates stamping unless it is mass tort (although it usually makes everyone’s job easier).  Either way, if they do not know the source of data, they or their paralegal will be wasting precious time trying to find it without this copy.

The chronology forms the basis of any research or articles that support, refute, or simply clarify my case.

Only then do I sit down and compose the report, which may only require a few hours initially. I always sleep on my report, re-read it the next morning and again later in the day. I then print it to see possible errors that were not evident on the computer. I repeatedly proof, determine that the ease of readability is appropriate and that the percentage of passive sentences is reasonable. I tweak it to death but I do not charge for this obsessive behavior – perfection is a relative term.

I present the data in a professional folder and off it goes, although the attorney may need the summary report immediately. If so, I protect the file so it cannot be altered and email it in advance.

From personal experience, the average time required to work up a case of this size is ~ 20 hours. The time may be more or less depending upon the event in question.  If the patient died in the first day or week of an event, it takes far less time to document than when tracking health changes over the course of time.

Large or small, the chronology is the basis for medical conclusions that may lay dormant for a year for legal reasons. A year down the road, everyone is grateful for this key document.

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Posted in LNC Skill Development, New LNC Advice

Can Anyone Create a Chronology?

Posted on June 2, 2013 | 3 comments

[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.

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Posted in Attorney-Talk, New LNC Advice

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The Words We Choose

Posted on March 23, 2013 | 1 comment

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. 

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Posted in Attorney-Talk, New LNC Advice, Personal Thoughts and Experiences

Grammar & Composition 101

Posted on March 13, 2013 | 2 comments

I have read a number of first time reports sent to me for review by new LNCs. In the strictest sense, all of these reports were accurate representations of fact. In the literary sense, some were disasters.

When you compose a consultative report for an attorney, assume your reader is someone with no medical knowledge of the disease/injury/event/terminology. This is not true but it will help you write more clearly and avoid the use of medical abbreviations that are clear to healthcare personnel and no one else.

Many attorneys, particularly those who specialize in niche areas, are quite well informed about their client’s condition. Others make it their business to spend an inordinate amount of time researching the event around which their case revolves. Since most are quite bright, they can understand how a surgery should have proceeded, whether or not a delayed diagnosis made a difference in outcome or why the ER screening for pulmonary embolus might cause harm to a patient in the throes of pulmonary edema.

But no matter how well informed, they probably do not know why elevated BNP with CP radiating to the LUE might be a sign of STEMI. Nor should they have to. We walk the fine line between not talking down to our attorney while not assuming an unrealistic level of knowledge.

The point I am getting to (finally) is that no matter how skilled a nurse is in her medical charting, that skill does not enhance report composition and in fact, gets in the way of effective report writing. Your report may be the only contact some attorney clients ever have because they are out of state. I work with one attorney whose father was the editor for a national newspaper for 40 years. He avoided using LNCs “because they couldn’t write worth a damn” the few times he had worked with them. Regardless of their knowledge base, he could not respect professionals who had no knowledge of basic grammar and composition.

I’ll talk about how to let your fingers do the talking next week…and maybe the next few weeks after that…

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Posted in New LNC Advice, Personal Thoughts and Experiences

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

Posted on February 28, 2013 | Leave a comment

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.

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Posted in Attorney-Talk, New LNC Advice

I’ll take jurors for 100, Alex

Posted on February 14, 2013 | Leave a comment

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.

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Posted in Attorney-Talk, New LNC Advice

When the shoe is on the other appendage

Posted on November 28, 2012 | Leave a comment

A nurse under fire deserves our support whenever possible. But is it always possible, and would you feel like a Benedict Arnold if you testified against another nurse’s care?

Think of it this way: when a person is harmed by negligence, you are not attacking another nurse; you are defending a patient.

Consider this recent case: An elderly woman with Alzheimer’s disease was in hospice and had been minimally responsive for several months. But then her physician decreased her sedation and she began talking with family, responding to her environment, and eating solid food. Her children were delighted with this gift of quality time and even her physician documented the marked change in her behavior. He did not connect the dots that he had overmedicated her (but that is another issue).

One night, a float nurse placed a high dose fentanyl patch on this lady’s chest, who had no order for any type of narcotic and no complaints of pain. Exactly how did that happen?

  • Why did the nurse not look for an old patch before placing a new one?
  • On whose chart did she document having applied the patch?
  • What was the effect on the patient who missed her rightful dose?
  • What is this nurse’s work history?
  • Did the facility report this event to the State Board of Nursing or Medicare?
  • Could this have been an attempted mercy killing?
  • Did this act result in permanent damages?

The patch was applied at 9am. At 9:45pm the patient was noted to have fluid-filled lungs and was given atropine, but the patch was not found for another 13 hours. By then it was too late to save her.

I ask you, who monitors pulmonary congestion for 25 hours and doesn’t see a patient’s chest while listening to lungs? If any nurse had looked, she would have found the patch. This case had many unacceptable breaches in care, resulting in death 70 hours after the patch was applied.

What do you think? Is this a family complaint you could get behind? Do you think the nurse’s action resulted in damages that ended in her premature death?

Remember, your job would not be to opine on causation, but to simply and objectively state your understanding of the standard of care in medication administration. Tell the attorney/jury what would constitute good care, and why failure to do so constituted negligence.

You can do that.

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Posted in LNC Skill Development, New LNC Advice

Thoughts for the New Nurse

Posted on November 22, 2012 | Leave a comment

1. Lay hands on your patient as often as you can – not just for auscultation or checking an armband as you dispense meds; see them, and know they are probably afraid

2. Sometimes a back rub or a foot massage offers more relief than a Vicodin – warm the lotion first

3. Respect your nursing assistants and make sure they know how much you value their input – tell them your concerns about a patient so they know what to look for, and compare their observations to your own.

4. You will never have a clearer memory of what you learned in school than you do right now – but you will know more about life, and nursing, with every day that passes.

5. Keep reading, studying, learning, and subscribing to free email alerts from places like WebMD. Go to conferences and stay connected with positive people who love what they do.

6. Don’t believe everything you read from medical blogs. The chemical/food/ beverage that causes cancer one week will probably be its cure six months from now.

7. The nursing process is a great blueprint that you will always remember and follow, but make sure your care plans are more than canned entries. Of course we want to “prevent skin breakdown” – add that back rub and foot massage to your care plan!

8. Keep your eye on theI&0, know your patient’s normal appetite and bowel habits, be aware that a suddenly confused patient with a Foley may have a UTI, and that the patient who pulls off their oxygen usually needs it the most.

9. Never let a shift end without a narrative about your patient despite (or because of) electronic documentation.

10. Be proud of your degree, but
      a. do not let initials define you
      b. never minimize the nurse who has two years of schooling instead of four
      c. listen completely and respectfully to everyone, because their knowledge is not your knowledge…but it can be

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Posted in New LNC Advice

This Could Be You

Posted on November 6, 2012 | Leave a comment

Part One: Yes, I am talking to YOU

Do you consider yourself a good nurse, or put another way, would you want your family taken care of by someone just like you? Do you feel comfortable teaching new nurses “how we do it” at your hospital, or on your infusion team, or in your home health care agency or nursing home? I am willing to bet that you can recognize deviations in care, and recognize good care when you see it, and yet, let’s be honest. 99.9% of “us” nurses get the willies when we think about testifying in court. A part of this fear is the belief that we might find ourselves being deposed or on the witness stand, defending our own actions. Talk about a knuckle-biter.

Well, take a step back from that ever-present awareness that you could err, and think about the nurse who already accused of making a mistake and causing harm to a patient. Doesn’t she need help?

Who is that nurse? Not necessarily someone in PACU or CCU, but the nurse on the floor – the one giving or supervising tube feedings, suctioning an ET tube, helping a patient to the bathroom or pushing meds in an IV. Does that sound like anyone you know? In this world of computerized documentation, meant to make our job straightforward (or someone’s job, at any rate), you know how easy it is to miss a check box even though work was done – your Risk Management department delivers this message like your job depends upon it. Oh.

If you were the nurse whose care was being questioned, who would you want on your side? Who else, but another nurse who works in the same environment you do, who understands the rapid pace and demands upon your time, the responsibility for supervising the actions of others and the potential consequences of being nothing more than “there” at the time an event occurred.

Your nursing experience is what makes you so valuable to the legal system and fellow nurses, because you do not live in a world of textbooks and online research.

If  asked to review the medical records of the patient harmed in the hospital or any other setting, would you know how to do that? Of course you would; you know what belongs in a chart and therefore you know what is missing when you (don’t) see it.  Chances are quite high that if someone asks you to serve as an expert witness, harm did occur, because attorneys are not in the business of spending upwards of 100k to try a case that has no injury. Injury and merit, however, are not synonymous.

The question you would be asked is not “did a bad outcome occur”, but “did the bad outcome arise as a direct result of this nurse’s (in) action”? Can the nurse’s care be rightfully defended, who else was in the chain of command, and most importantly, was the standard of care met? Remember that nurse experts are not being asked to diagnose a condition; they are being asked what a reasonable and prudent nurse in the same setting would have done.

Next time, Part Two: When the shoe is on the other appendage.

Please visit my LNC Corner on http://www.NursesNetwork.com

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Posted in New LNC Advice, Personal Thoughts and Experiences

You know you are a Legal Nurse Consultant When:

Posted on April 11, 2012 | 1 comment

Here are selected quotes from experienced LNC’s. Read the entire 29 stories of successful legal nurse consultants in our newly released book: The Path to Legal Nurse Consulting: The Collective Wisdom of Successful LNCs.

You know you are a Legal Nurse Consultant when:

Quitting your day job no longer seems impossible.

When asked what you do at a party, you no longer fall over your words.

You actually believe, deep in your heart, that you are as valuable as your brochure claims.

Your attorneys take one look at a case and call you instead of trying to do everything themselves and messing it all up.Your attorney-client emails and says, “The senior partner wants you to look at a set of medical records for deviations in care because as usual, we don’t have any idea.”

Your family and friends ask you if you have heard of their doctor and are relieved when you say no.

You learn that the correct answer to almost any question can be “It depends…”

You believe there are actually three sides: the plaintiff side, the defense side, and the truth.

Opposing counsel approaches you after a trial and tries to make small talk then asks for your business card, your experience and if you have an interest in working for the opposing counsel.

You ask someone you know well a question, don’t get a direct answer, and then say, “Would the witness please answer the question?”

Your mailman gives you that look, as he delivers the second file box of records up the two flights of stairs to your front door.

You used to meet malpractice and personal injury attorneys and hope you would never need their help. Now you meet malpractice and personal injury attorneys and are pretty sure they could use your help.

You feel as though butterflies (or worse) will surely fly out of your mouth or behind once you have finally mustered up the gumption to make that first cold call!

You find yourself screaming at the computer screen “No, she didn’t just document that!”

Your attorney says the medical records will be ready in a few days and you go ahead and plan a short vacation, maybe even a long vacation.

Your answer to your kids or husband asking repetitive questions is, “Asked and answered”.

You create a PowerPoint to get ideas across to family and friends.

Your attorney client tells you he couldn’t have won his case without your help and expertise.

 

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Posted in New LNC Advice

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Words Matter

Posted on December 17, 2011 | Leave a comment

Recently, a nurse was sharing her angst that attorneys to whom she marketed via email were not responding to her. I have been giving this some thought because it is a situation that many new LNCs experience.

Everyone finds their comfort level in marketing, and chances are, if you are too comfortable, it might be time to change things up a little. This is particularly true if you are comfortable, but your efforts are not producing results.  Although LNCs can market to a variety of settings, let’s focus on marketing to attorneys, and begin by looking at ourselves.

What makes you buy a product that has no entertainment value? Need. You might watch a Bare Minerals commercial and be amazed that makeup can completely cover scarring, but if your skin is perfect, you don’t need to buy the product (and it is costly).  If you suffer from acne scarring or other blemishes, the cost may be irrelevant to the benefit you will gain from having the appearance of smooth skin.

Attorneys are the same way. If you call or visit and they do not see a need for you right then and there, they are going to say things like “I’ll keep your information on file”, or they may be “busy” when you call to schedule an appointment. This is not personal; they are concentrating their time and attention where they perceive a need, and right now, you are not it.

What do you do at this point? Do you simply move on to the next target and never look back? Or do you send them a partial work sample and CV, thank them for taking the time to look at or save your materials, and promise to keep in touch? Do you send them a relevant article a few weeks later and then maybe monthly? Because sooner or later, your name will come across their desk when they need your service, and if they like what they have seen of you, you might land a case.

During all this “down” time that no one needs you, what if they are curious enough to look you up online? What will they find?

If you are on LinkedIn, they should find a complete profile, with picture, your education and work history, hopefully a recommendation or two, and a respectable number of connections. They will look for a link to your website and a clear description of your services. They can only see what you have written.

Here is the crux of my rambling (which is another no-no). How many nurses have your medical knowledge and experience? Thousands.

What sets you apart and makes you special; what will convince the attorney that he needs you and not the others? Presentation, and the ability to communicate are critical to being a successful LNC. If your profile is not complete, if your description of yourself is not well-written, if your writing has errors in grammar or punctuation, or flips between first and third person, or past, present and future tense, you may not find work. To an attorney, words are everything.

Words reflect knowledge and experience, and how you put those words together in a sentence indicates the work product you can provide to an attorney. This is such an important issue that attorneys are constantly learning about the best way to write a brief, develop a line of questioning for depositions, or structure interrogatories to opposing counsel.  They will attack each other’s writing style and word choice, and are chastised by judges for using unnecessarily complex terminology.

Words matter. Attorneys work for their client, whether plaintiff or defense; they can be removed from a case if their work is subpar. This is always foremost in their minds. If your writing is poor, how can they trust you to analyze their case, present data in a clear and logical fashion, and not miss relevant data? How can they be comfortable that you will not represent them poorly to their client?

You cannot make a new client call you, but while you are waiting for the phone to ring, use that time to review your marketing materials – brochures, business cards, CV, sample work product and online profiles. Make sure these items have a common theme, represent your expertise, and do not misrepresent your ability to communicate. Look for webinars or courses that teach you how to write for attorneys.  (There’s probably one right now at www.patiyer.com/mcc, or www.lnctips.com).

There are many ways to write a report or chronology, but none of them include nursing shorthand, medical abbreviations, incomplete sentences and grammatical errors. Find a peer to critique your work and return the favor. If verbal communication is quicksand for you, focus on email and snail mail. Attend law seminars or sit in court and listen to trials, read about affidavits and other legal documents that you may never write but need to understand.  You will feel more confident, be more competent, and have no trouble letting that attorney know that s/he does indeed need you.

 

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Posted in LNC Skill Development, New LNC Advice

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The Perfect LNC

Posted on August 10, 2011 | Leave a comment

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.

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Posted in Attorney-Talk, New LNC Advice

Finding Work as an Expert Witness

Posted on June 27, 2011 | Leave a comment

I receive numerous requests from nurses that are experienced in their field and wish to find work as testifying experts. This posting is for those nurses.

While there are publications that will list you for a fee, there are free resources to aid in this endeavor.

One of the easiest ways to make contacts is to join a Yahoo group that is active in the medical/legal arena.  LNCExchange is a moderated group in which nurses, physicians, attorneys and other healthcare specialists post questions to the group.  It is a rich resource for experts because we members will put out a call for a particular specialty, which may or may not be geographic-specific. You can then respond directly to that posting.

Qualifications for an expert vary from state to state and the need changes from case to case.  In fact, I found the following on California’s State Board of Nursing website:

[Recruiting Expert Witnesses

The BRN Enforcement Program is currently only recruiting qualified registered nurses to review case materials, prepare written opinions, and possibly testify at administrative hearings as an Expert Witness for cases involving Botox/Laser/Dermabraision and HIV/AIDS.

Expert Witnesses are paid $75 per hour for case review and preparation of the expert opinion report and $75 per hour plus expenses if called to testify at an administrative hearing.

If you wish to provide this service to your community and be considered by the BRN as an Expert Witness, please verify that you meet the following requirements:

  • A current and active California RN license
  • Ten or more years of experience and expertise in one of the areas or specialties listed above AND current employment in that setting
  • No prior or current charges or discipline against any health care related license in California or in any other place of licensure
  • No criminal convictions, including any that were expunged or dismissed]

Interesting, no?

At a more general level, when I search for an expert,  I need someone who has been active in their field for 3 of the past 5 years. There are variations on this. If someone has a case in which an event happened during a different timeframe, the attorney may want an expert who was active during that timeframe, particularly if different technology or standards of care were in place at the time.

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Posted in LNC Skill Development, New LNC Advice

Here’s (Who’s) Looking at You, Kid

Posted on February 24, 2011 | Leave a comment

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.

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Posted in LNC Practice Building, New LNC Advice