The Mental Health Divide, Part One

The Mental Health Divide

-Alice M. Adams, RN
Atlanta, Georgia


(Disclosure: I have worked fulltime for 20 years and now part time in a clinical psychological practice. As a nurse and patient advocate interfacing with physicians, nurse case managers and attorneys, dealing with insurance reimbursement was once 5% of one day a week; now it is closer to 20% of every day. Personal experience flavors objectivity in all of us.)


During the past month, the news has made the public aware of what mental health professionals have long been aware: the diagnosis of mental disorders is inexact, and treatment often proceeds without a known etiology.  In the real world of patient care, clinicians measure success in terms of empirical progress; has my patient improved, plateaued, or worsened? The answer is derived by objective observation and the patient’s self-reporting. But even objective observation contains an element of subjectivity, accounting for the diagnostic variability among clinicians examining the same patient.

Insurance and Pharmaceutical Influences in Diagnosis

The International Classification of Diseases’ (ICD) diagnostic codes govern the reimbursement of all care. Insurance companies require ICD-9 (and 10) codes from the DSM-IV-TR before they will authorize the evaluation or treatment of any mental disorder.  Psychologists and psychiatrists must choose a code that most closely matches the symptoms. A depressive episode is coded and further refined by duration, intensity of symptoms, single episode vs recurrent, and weighed against alternative diagnoses. The accuracy of diagnosis is largely dependent upon honest and complete disclosure from the patient.

But diagnoses fall in and out of favor; in favor they are overly utilized and can result in excessive labeling. Such labels facilitate insurance reimbursement and garner the attention of pharmaceutical companies. Recall when Ritalin was the only drug for ADHD replete with side effects and adverse reactions. Pharmaceutical companies took notice and funded extensive studies and trials that resulted in more targeted drug regimens. More funding and medication options in turn resulted in more ADHD diagnoses. And so on.

The DSM-IV-TR vs the DSM-V

Since its inception in 1952 and throughout its revisions, the accuracy and validity of the Diagnostic Statistical Manual (DSM) for classification of psychological symptoms has been challenged. Dr. Allen J. Frances, Professor Emeritus at Duke University, chaired the DSM-IV-TR task force (year 2000 Text Revision) and publicly objects to the impending release of the DSM-V.

An active blogger for the Huffington Post, he urges clinicians to ignore it’s changes altogether, asserting that the new version is vaguer than ever and will lead to labeling healthy individuals with its lowered threshold for criteria. In one of his blogs he states that the DSM-V is “offering its untested new diagnoses that will mislabel millions of the worried well as mentally ill”.[1] Parents of autistic children have the opposite concern, that their child will no longer fit in that diagnostic category and be denied access to medication and therapy.

Frances states that the DSM-V offers no leeway in differentiating, for instance, alcohol addiction vs dependence vs social use. The manual’s authors counter that early recognition will result in early intervention, but many practicing clinicians fear that the endpoint will be over-diagnosis that that misidentifies normal variations in behavior.

The National Institute of Mental Health (NIMH)

On July 3, 1946, President Harry Truman signed the National Mental Health Act, which called for the establishment of a National Institute of Mental Health (NIMH). The process of diagnosing without etiology is the fundamental distinction between the DSM’s function and the conceptual model now proposed by the National Institute of Mental Health.

NIMH rejects all DSM versions and is devoting its considerable financial and scientific resources to the premise that all psychological conditions are biologic or chemical in nature, originating in specific regions of the brain, and thus amenable to medical intervention.  The stakes are significant – for insurance reimbursement, financial grants for research, pharmaceutical financing, and one hopes, the well-being of patients.

Citing the difficulty in properly diagnosing mental health disorders when forced to choose an ICD code, in 2008 NIMH implemented its Strategic Plan, a diagnostic process using Research Domain Criteria (RDoc).

This plan utilizes a matrix of Constructs (rows) that are grouped into five Domains of Functioning, and seven classes of Variables (columns) with an eighth column for paradigms. The goal is to classify mental disorders along a continuum of biologic and genetic markers, neurological circuitry and specific regions of the brain. The attempt is not to diagnose a mental disorder by looking at the overall patient presentation, but to find one symptom that is present across a variety of disorders, eventually pinpointing the physical location of the symptom. This intersection would identify the origins of disease, and science (psychopharmacology) would intervene to avert mental disorder. This theory ignores the empirical research on the greater efficacy of “talking therapies” either alone or in combination with psychopharmacology, and even NIMH agrees that this lengthy research offers no immediate relief to patients.

Opponents to RDoc fear that severe illness (schizophrenia, bipolar disorder) may go untreated if the affected individual does not express a specific gene. They question the validity of research that is conducted solely in laboratories and does not involve practitioners in the field. NIMH counters that RDoc is an open document for which they have sought input from the medical community.  To be continued…

How Much Time Does it Take to Create a Chronology?

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.

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 Changing Face of Body Language

As the daughter of an Army Drill Sergeant, I grew up around Fort Jackson, SC. We shopped at the PX, attended the Roman Catholic church on base, bought 29 cent gasoline and went to the movies for a quarter. But the place I seemed to spend most of my time was in the outpatient infirmary. I remember the wooden structures that were meant to be temporary when first constructed, the highly polished wooden flooring and ramps, the “shot” room where I received more than my share of Pen V for recurrent pneumonia and tonsillitis…many decades later it still feels like yesterday.

My most vivid memory though, is the nurses. All wore Army issue 100% cotton uniforms, starched and white, with sharp caps and polished shoes. From my vantage point, I could see little beyond large bosoms in sharp Playtex bras that preceded them into the room like the prow of a ship.  They terrified me. I remember hiding behind the medicine refrigerator when I knew a shot was imminent.

These nurses were tough, and a pediatric department was nonexistent. No lollipops for good behavior (and I would not have earned one in any event). I was expected to behave like a small soldier.

Many of these women had served overseas and their pride was evident in their bearing as they marched down the polished hallways, shoulders back and snapping salutes from the brow of their stern faces. They were subordinate only to God and outranking physicians. The distinction between the two was not always clear but my inferior position was never in doubt. My mom was also a nurse, and I secretly thought she identified with them more than me, her youngest national treasure. Of one thing I was certain; I would never become a nurse.

So much for that resolution. I too grew up to wear polished shoes and cap for graduation, but the hospital I worked for had a wonderful pediatric floor. Body language had changed.  I wore child-friendly smocks, tossed the cap after I kept losing it in the nebulizer tents, and there was a rocker in every room. No scary nurses allowed. Gently approaching children instead of pinning them down like feral cats was a solution the military had never conceived. Sheltering in mom’s embrace for injections took away some of the sting, and parents were calmed by having their own hands held after a particularly hard night.

When I transferred to ICU, body language was equally if not more central to the care of adults. They scrutinized our faces for indication of bad news as did their families. Amidst their lines, wires and tubing, they were vulnerable. Their spirits were buoyed by unhurried baths and clean bedding. Their families were less apprehensive when their loved ones looked well-cared for, and sometimes they needed a hug. They wanted to know we cared and that we would be there when the call light was not on, and that our shift ended when the work was done and not before.

In the latter 70s and early 80s, you did not wear gloves to start IVs, give baths, take vital signs or draw blood. Gloves were only required for trach and wound care, suctioning, Foley insertions, continent care and when isolation demanded it. Although today’s MRSA-resistant hospital environment demands protection for staff and patients, those gloves also communicate “unclean” to patients who crave human contact. Now more than ever, smiles and reassuring body language are indispensable to good patient care.

And honestly, who needs frown lines?

Do I Have Your Attention?

I don’t know – do you have mine?

I was strolling through Costco a few days ago (if I miss a week the staff become anxious) when I overheard a young man speaking at a moderate volume into his earphone. He was speaking, but he was not listening. He was providing IT support to a client who either could not follow his instructions or was utilizing a wholly different program than the one under discussion.

I am not an eavesdropper, usually, but it was clear that he was shopping for groceries and envisioning a computer screen concurrently, and not doing either effectively. He repeatedly misinterpreted the problem and provided incorrect troubleshooting. He resembled many IT technicians who have stolen hours of my life without resolving my problem.

How do you know if you have someone’s attention, and are you also guilty of not listening effectively?

Here a few telltale and annoying signs of inattention on the other end of the phone:
• Papers rustling in the background – either the person is going through their mail, lost an important document or has vermin on their desk
• The conversation is one-sided but for the occasional “mm hmm” that passes for “I hear you”
• The same information is requested more than once
• You clearly hear the clatter of a keyboard that is not in sync with the conversation

Most of us can multitask to some extent, but none of us can anticipate the critical points in a conversation that require our full attention. If you miss that key sentence and find yourself fumbling to catch up, you have dropped the ball. Concentrate on the caller, or ask if you can call them back (the attorney, the expert, your mother). No one likes to repeat themselves.

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. 

Grammar & Composition 101

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…

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.

Sleep is good. Work is good. Working without sleep…not so good

Sleep and work. We spend more time doing these two activities than anything else in life.

The need for a good night’s sleep is evident in the number of medications, therapies and sleep aids that promulgate the market. But we do not need advertising to tell us what we already know – a bad night’s sleep makes us miserable the next day, less efficient, moody and irritable. No sleep at all makes us dangerous at the wheel and to our patients.

For years I saw medical and surgical residents come through my ICU, sleep deprived, complete with bed-head and stumbling gait, reaching for a cup of coffee to jolt their nervous system. I never understood how being on call for 24-36 hours was a good thing for anyone but the attendings who were getting a good night’s sleep. It certainly wasn’t necessary to prepare students for being in private practice, and it occasionally put patients’ welfare in danger.

I could relate. I alternated between (3) shifts every two weeks. The coveted morning shift was bustling with activity, diagnostic studies, lab draws, ventilator weaning, PT, OT, breakfast and lunch. No way was I falling asleep on that shift. The afternoon shift was quieter, family more present, bedside and surgical procedures occurring when they could not wait until the next day, but never scheduled for 8pm. It was a time, with any luck, of relative respite for patients and staff.

But those night shifts. I well remember charting at 5am, standing up because I was trying to stay alert and literally sleeping on my feet. The circadian rhythm of my brain was not attuned to working at night. I could not sleep during the day for more than two hours, and felt like a zombie the rest of the time. Oh yes – I fell asleep at the morning wheel on more than one occasion. Thank goodness for that part of the brain that never truly sleeps.

“The stream of information (to the brain during sleep) is considerably reduced, but the brain is not fully disconnected from the environment. An inspection of the environment takes place to optimize safety during sleep. Stimuli…signaling danger are recognized, and may enter awareness, leading to a wake-up call, which allows the individual to react. This subconscious stimulus evaluation is regarded as having a guardian function for sleep.”

It’s no wonder that we spend so much time thinking about our work and worrying about our sleep. When either or both are out of balance, we are miserable and unable to enjoy everything that happens between these two activities – like family and friends, recreation and exercise.

Bones grow during sleep, brains recharge, and unless we have nightmares, a good night’s sleep cures many ills. Let sleeping dogs lie. Sleeping like a baby. Shhh! the baby (nurse, patient, doctor) is sleeping.

BYOB – Part III of III – Making it all Work

You can minimize your expenses as a legal nurse consultant if you are willing to learn and work. But if you buy “stuff” first, I promise you will purchase things you do not need. It is akin to stocking your first nursery without ever being around babies; what looks good doesn’t always work well.

Sad is the nurse who finishes a program and immediately begins to hemorrhage money – either to pay for that program, or for an accountant to track their future billing and give them tax advice, an attorney to set up their corporation, a separate phone line for the calls that might come in, stationery coordinated with business cards, postcards, and brochures that cost way more than they are worth. Computers, fax machines, copiers…gifts to leave at the offices of cold-call attorneys…everyone and everything is more than happy to take your hard-earned money.

With Microsoft Word, you can easily create your own stationery, business cards and envelopes. They will not look homemade, and if you are anything like me, you will change your design a number of times before you settle into your own “look.” There have been many times when I change the wording on my business cards just prior to an attorney meeting or conference. So, you do need a printer, but get one that prints in color, can be fed hunks of paper for copying and faxes on your home line.

If you don’t want to use your home line, there are HIPAA compliant internet fax services. I use one. All my faxes go out through my computer and come in through my email. My LLC cost and business license cost…maybe 125.00; QuickBooks keeps track of my income better than an accountant, and I file my taxes as an addendum to my personal 1040. I have never paid a mentor but I have had many generous nurses in my life that served that role.

For many people, it is easier to spend money on things than it is to spend time on learning. But your letterhead, presentation folder and business cards will not create an exemplary work product – they will just make it look good.

A successful business gives the customers what they want. Your customers are the attorneys. You cannot produce a work product for them until you know in advance their needs and expectations. What you need is to know is the attorney’s expectations in terms of billed hours. You may not know what to tell him (1000 pages looks like a heck of a lot of work and didn’t you read somewhere that you should charge by the ½ inch?).

At first, it may feel safer and more productive to obsess about how to structure the report, rather than figuring out what to tell the attorney about billing. Bullets? Indentations? Outline or chart chronology? Should those references be footnotes or endnotes and do I need a reference list at the end?

These thoughts can be distractions from concentrating on meeting the attorney’s needs and expectations.
Over time, you will develop a report format that works for you and a style of reviewing medical records that decreases the chances of missing important data. Until then, your business will grow faster if you concentrate on satisfying the customers’ needs.

Everyone travels a different path even if the end goal is the same. All successful LNCs were new, afraid, skeptical, and unsure of everything except believing that an attorney would pull back the curtain and find the Wizard of Oz.

Insecurities never go away completely.

Times of doubt and fear will come regardless of how successful your business may be. There will be stretches when your phone doesn’t ring and you question your own work product. Your work universe may be much like the phases of the moon: sometimes the tide brings work in faster than you can keep up, and sometimes it all goes out to sea at the same time.

But if you are meant to surf and ride that wave – just get started.

BYOB Part II of III: Putting your nose to the grindstone

This post will delve more deeply into what to expect in legal nurse consulting.

First, expect to do a LOT of research.

Unlike testifying experts who specialize in a nursing niche, legal nurse consultants are asked to assist in many types of healthcare claims. No two are alike and I have never worked on a case that did not require a great deal of research on injuries or conditions. For me, learning is one of the perks of this field, and you really have to enjoy the process of discovery (not in the legal sense).

Your responsibility does not change with the side of the claim you are on, because your job is to find facts without preconceived notions of causation. You need solid research on this disease, its incubation and likely sources of exposure, the preferred treatment, the long term effects and cure rate, and the medical history of the patient before and after exposure. You need to open those records and find out what’s missing so you can inform your attorney immediately what he needs to request from other sources.

This brings up the second point:

Expect to look at medical issues from completely different angles.

You have a case. You have the stationery to write the report. You have all the equipment to produce it.

Suddenly, you don’t know where to start. This is puzzling because, after all, you are a nurse, and you do know about the standard of care, how to spot a deteriorating patient, when to challenge a questionable order, and what the inside of a hospital chart looks like.

The problem is that the case may not concern the delivery of care. For example, the claimant is a heating and cooling maintenance man who has worked in his field for 15 years without a hitch. Now he says that one blast of air from an older home has resulted in aspergillum lung infection with encapsulating scar tissue and he can never work again. That may be true, but as a legal nurse consultant you never accept a claim at face value. This man is not a patient, he is a claimant. You need to learn everything you can about this disease even though you are not the testifying expert.

Third, give aspirations time…and feed them with hard work.

I get many emails from aspiring LNCs who want advice on getting started. Some just want a nudge in the right direction so they can find things out for themselves. Some have not pursued any training programs. Some have completed a program but complain that “I read the books, took the test at the end, started emailing attorneys and it’s been three whole weeks without a nibble. What am I doing wrong? Just tell me what to do.” Or, “Let me work for you”. Or, “Do you know anyone who needs my help…I’m so discouraged.”

Do you know what these situations remind me of? Weddings. Two people love each other and plan a formal wedding. The sheer amount of work and money that goes into this event is staggering. They (she) get caught up in reservations, gift registries, invitations, flowers, catering, the dress, the dress rehearsal, and oh my God—the bride’s maids’ dresses. You can lose sight of what this wedding is for – the beginning of a new life with challenges and rewards, neither of which depends upon the wedding itself.

But eventually you do get married or you do get that first case and it is so exciting! You can tell your family you haven’t been wasting money, neglecting the house and starving the cat in vain. There’s nothing like the thrill of a new referral…and “putting your nose to the grindstone” to turn out an excellent report.

It’s time to work.

BYOB: Building Your Own Business: Part I of III

Career complacency is something that sneaks up on you. The years pass quickly and you are comfortable in your secure job, attending the requisite training seminars and extremely competent in your niche.

But maybe you peeked out from under your rock and found that legal nurse consulting was a blossoming field of interest. Thanks to the internet, this once flying-under-the-radar career is now prominent. Even though you may be excellent in your office/clinic/hospital/job, you may be ready for change. Does a sense of urgency well up within you because everyone seems to know something you do not, and you cannot get started fast enough?

Just because you can do a thing does not mean you should do that thing.

It’s hard to be patient, but easy to get caught up in what others are doing because of the fascination (and desperation to escape less-than-desirable working conditions?).

Before jumping into starting your own business as an LNC, let me help you pick my brain for advice. These next few weeks, I’ll be covering a few things that you should consider before or during your transition into having your own business as a legal nurse consultant.

In planning this new career move, ask yourself if this is what you really want to do. Why do you want to be an LNC, and are you willing to put in the hours of learning that will truly never stop? Because even though this is a career you can step into without extra licensing or certification, becoming an LNC is not a lateral move from nursing. Success in your current job does not guarantee success in becoming a legal nurse consultant.

These are two different worlds.

Wrong preconceptions and bad reasons for pursuing a career in legal nurse consulting:

• You are tired of your current job and just want something new
• You know the hourly rate is triple what you make in a hospital and zowie, that sounds great
• You always wanted to practice law
• You assume it can’t be that difficult or no one would be doing it
• You have been documenting care for years, so writing a consult letter can’t be all that different
• There is just enough credit left on your card to stock a home office

While this post may have emphasized more negative points about becoming an LNC, next week’s post will bring to light some positive points about the world of legal nurse consulting.

When the shoe is on the other appendage

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.

Thoughts for the New Nurse

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

This Could Be You

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.

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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.



I am blessed, and if you are reading this now, you are also blessed. We both have electricity, internet access, computers, an education, and by default, the ability, or at least the opportunity, to “make something of ourselves”.

I forget about that sometimes, but all it takes is a little change to remind me. The electricity just returned after being off for four hours. Four hours, not four days. Suddenly I was excommunicated (the Catholic in me) from hundreds of people I may never meet, but are my friends by every definition of the word.

Gone was the air-conditioned comfort, reading lights, Netflix and worst of all, Dogs of War or whatever that Xbox game is that makes my teenage son scream like a little girl with his online gaming friends.

Might as well go to bed, which I did, but I have never noticed how quiet the house is without the sound of the air conditioner, fan, or my woosher (the civilized world calls it a sound machine, but it will always be my woosher, tuned to the ocean setting that reminds me of Sanibel).  What was left? The persistent sounds my dog makes in his undisturbed sleep – little snores, dry swallows, and an assortment of unidentified noises that jolt me into awareness at the precise moment I am falling asleep.

“Count your blessings”, “things could be worse”, “be glad you are not that one”, “at least you have your health”…things people say to comfort each other. In times of disaster, people must reach very deeply to find their gratitude but most will succeed. “At least we have each other”, as they mourn the loss of their home. These expressions are not platitudes; they are truths that guide our lives.

I know that I am spoiled when my biggest complaint is bemoaning the passage of time and youth, and I will spend more time being grateful, I promise. Although…I can still hear my dog swallowing above the sound of the woosher. I should wake him up and remind him that he too is blessed to have electricity, and that porcelain thing he is so fond of using as a water bowl.