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Legal Consulting by Nurses

Joy Collins, RN, BSBA, CLNC, LNCC

Wild Iris Medical Education is an approved provider (#PA-54) of continuing nursing education by the Washington State Nurses Association, an accredited approver by the American Nurses Credentialing Center's Commission on Accreditation. Our courses fulfill continuing nursing education requirements in all 50 states.
Wild Iris Medical Education (CBRN Provider #12300) is approved as a provider of continuing education for RNs, LVNs, and respiratory therapists by the California Board of Registered Nursing.

Nurses have been assisting attorneys with their medically related cases for far longer than is generally realized. It is only lately that the sub-specialty of legal nurse consulting has become a recognized field of nursing that the media has thrust into the mainstream. As far back as the 1980s (and probably earlier), nurses and other medical professionals were assisting the legal world to arrive at a fair settlement by moving through the quagmire of medical records and jargon that we nurses take for granted.

HISTORY OF LEGAL CONSULTING

For the most part, this early nursing assistance was given in the form of expert witnessing, whereby nurses reviewed records of a case and then lent their expertise on the witness stand, verifying standards of care in nursing practice. As litigation in medical cases became more widespread, nurses found themselves in greater demand. Gradually, as nurses interacted with the legal profession, it became obvious that there was more to offer. Nurses could review medical records and educate the attorney; further, they could be uniquely helpful behind the scenes. In the ensuing years, nurses came to be seen as colleagues, reviewing cases, giving opinions, writing reports, and more, applying their ethical practices in the interest of the client, the attorney, or law firm.

Nurses had entered a whole new arena, but they were scattered across the country, working independently from the nursing profession and from each other. During the 1980s some of these nurses banded together. In fact, three distinct groups formed simultaneously in Arizona, Georgia, and California. Then, in April 1988, an article was published in a law journal that featured the Arizona group. A member of the San Diego nurse association found and read the article and contacted one of the Arizona members. They shared with each other their goals and aspirations and agreed to meet.

Soon talk of a national association started and the seeds of the American Association of Legal Nurse Consultants (AALNC) were planted. The first board of directors was elected in March 1990. By late 1996 membership in the association grew to 2,000 members nationwide in thirty-one chapters. The first national conference was held in Phoenix in 1990 and conferences have been held annually in various cities across the country ever since.

EXPERT WITNESS vs. CONSULTANT

So, who are these nurses? To answer this question we will need some information about the law as well as an understanding of the differences between the two types of legal nurses: the expert witness and the consultant.

For the sake of simplicity, I will explain the terms used in medical malpractice cases; however, these terms may apply to cases involving any medical issue.

Components of a Medical Malpractice Case

In order for a case to be both valid and "winnable" in a court of law, a medical malpractice case must consist of four components.

DUTY

The defendant—the medical provider being sued (this can be an individual and/or an institution)—must have had a duty to the patient as the basis of the lawsuit. In other words, the accused must have been responsible in some way for, and must have established a relationship with, the patient. So, for instance, if an internist (a physician specializing in internal medicine) was concerned about a laboratory value from his patient who was going into surgery the next day, he might have consulted over lunch with a surgeon friend for his opinion.

That surgeon who rendered an opinion or suggestion to his colleague would not have established a relationship with the patient and would not be responsible for any care rendered to that patient. If, however, the surgeon had been called in on consultation and saw the patient, examined him, and directed care for that patient, the surgeon would have established a relationship and any care he gave would fall under the first requirement of duty.

BREACH OF DUTY (or NEGLECT)

Standard of Care

Breach of duty depends on establishing a number of factors, beginning with the accepted standard of care. The standard of care is defined as "the level at which the average, prudent provider in a given community would practice. It is [the way] similarly qualified practitioners would have managed the patient's care under the same or similar circumstances" (medicine.net, 2004). In order to win the day, the plaintiff (the person bringing the lawsuit) must prove that the defendant breached this standard by failing to do what another provider in the same circumstances with the same level of training and expertise would have done. An example of breach of duty would be an emergency room physician failing to accurately diagnose a heart attack in a patient who presented with chest pain.

Causation

Having established the standard of care, the next step is to prove that the particular deviation from the standard of care was responsible for the harm the plaintiff is alleging. In the earlier example, perhaps failure to order the blood work that would have demonstrated elevated cardiac enzymes ultimately resulted in the patient's death.

Damages

In order for the suit to be complete, there must have been harm rendered to the plaintiff. If a deviation did occur but no harm resulted, there cannot be a claim.

Expert Witness

Assuming all of the factors are in place, the case goes forward. Attorneys for both plaintiff and defendant will then need expert witnesses to support their allegations. Experts render their opinion based on review of the medical records and their knowledge of the conditions that impact the case. Both sides may ask their experts to address standards of care, causation, and damages.

Experts come in all specialties from medical records experts (who can detect tampering of records) to collision specialists to surgeons specializing in robotic surgery to nurses who do home visits. In a case involving medical issues, the attorney will look for someone who is in the same capacity as the defendant (for standard-of-care issues) and will look for other experts to address causation and damages.

Contrary to what the term seems to imply, an expert witness does not have to be world-renowned in a specific field to be considered an ideal witness, although that certainly would be impressive. Experts are available in all the fields necessary to pursue the case and their role is crucial. A case may pivot on the testimony of the experts. Their role is to educate the attorney and the jury as to the merits of the case.

For this discussion of legal nurse consulting, an expert nurse witness is defined as a registered nurse who is currently clinically active (or was at the time of the incident that formed the basis of the lawsuit) in the specific subspecialty in question. Actual specific qualifications vary from state to state.

This nurse will review the medical records and testify as to the nursing standard of care that is under debate. The expert is also considered an independent contractor and can review on either the plaintiff or the defendant side.

Let us say that an attorney is defending a case that concerns a patient who was immediately post operative in a post anesthesia care unit (PACU). The patient's vital signs were not monitored per the hospital's protocol and consequently the patient's condition deteriorated. One of the issues might be concerning the nursing care rendered by the PACU nurse. To that end, an RN currently working in a PACU setting would be an ideal expert witness in this case. This nurse would be questioned as to the role of the PACU nurse, its duties and obligations to the patient, and what would be the standard of care in a situation similar to the one that is the basis of the lawsuit.

Consultant

A behind-the-scenes legal nurse consultant, on the other hand, may never set foot in a courtroom. The primary role of this nurse consultant is to assist the attorney (or other entity such as a risk management department) by making a complete medical assessment and then drafting the documents necessary to support the case. To do this requires collecting all the data necessary for a thorough assessment of the relevant healthcare issues. Nursing expertise is fundamental to this process.

Anyone who aspires to this specialty should have several years' experience working as a registered nurse. The nursing specialty is not as important as experience, although experience in such areas as labor and delivery, intensive care, and emergency room nursing is very valuable.

This nurse consultant can work in many settings and be either an employee or an independent contractor (discussed in more detail below). This type of legal nurse consultant is responsible for working up the case up for the attorney and can work on the side of either the plaintiff or the defendant (though not both at once!). the workup will usually include a complete review and evaluation of the medical records, drafting a chronology of the case, doing medical research on all the medical issues contained within the case, and procuring the appropriate expert witnesses.

LEGAL NURSE CONSULTANTS

Qualifications

As stated earlier, anyone who wants to be a legal nurse consultant should ideally have many years' experience working as a registered nurse. This is not the kind of specialty you can jump into right out of nursing school. A strong clinical background will serve you well and is the main reason why an attorney or other legal entity will find you attractive. In addition, strong communication skills are also necessary, both oral and written. It goes without saying that, in today's business world, better than average computer skills are also necessary.

A drive to succeed and a spirit of independence will serve you well, whether you work independently or as an employee. A legal nurse needs to be able to assess a case for what is needed and dive right in without being told what to do. The ability to be creative and think outside the box is also helpful. Often, the attorney relies on the nurse to find that one thing that might help tip the case favorably.

Flexibility and professionalism, good communication skills, and the ability to organize and prioritize are also invaluable. Finally, a sense of humor is always good to have in the midst of a busy schedule.

As a legal nurse consultant, you can expect that your employer will expect you to be capable of any of the following (this list is not all-inclusive, by any means):

• Organize the records so that they are useful to the attorney
• Define the standards of care and describe any deviations and their resulting damages
• Summarize the records and produce any specific reports needed/requested
• Conduct literature research and incorporate the discovered material into your case analysis
• Identify any missing records and other needed documents
• Identify the needed types of experts and be able to interact with them
• Identify other potential defendants
• Analyze the reports of other experts

Obviously, in order to fill these roles and satisfy these needs, it helps to be very well organized and have an analytical mind—traits familiar to nurses. In addition, if you decide to strike out on your own and run your own independent consulting business, you will need to sharpen your business skills, particularly in basic accounting and marketing. If you feel you are lacking in this area, there are courses and resources to help you.

Work Settings

Legal nurse consultants who work behind the scenes can be found in many settings, including law offices, hospitals, insurance companies, and others.

LAW OFFICES

Probably the most common place to find a legal nurse consultant is in the office of an attorney, either on the plaintiff or defendant side. The specialties of these attorneys can be medical malpractice, workman's compensation, personal injury, product liability, or any kind of case that has a medical record that needs the expertise of a medical professional.

Working side by side with an attorney on a case from start to finish is an excellent way to both learn and teach. The opportunity for the legal nurse consultant in a law firm will depend on the firm's specialty and size. Smaller firms will often give the nurse more responsibility and latitude while a larger firm may offer more opportunities for diversification.

Some concepts may be daunting to the new legal nurse consultant. Law firms make their living based on billable hours (ie, hours that can be charged at a rate for reimbursement). Nurses must learn to make their work productive so that the firm itself can be successful. You may find that your productivity is determined based on the hours of service that can be billed to a client. This is a concept foreign to someone who has worked at the bedside.

Good legal nurses can find many ways to demonstrate how their expertise can be utilized to assist with a case. A nurse who was hired simply to do medical record summary may find that her attorneys value her input regarding medical literature research and expert witness retrieval.

HOSPITALS

Hospitals often benefit from a legal nurse consultant's services. A legal nurse may be hired to work in the quality assurance department alongside other nurses specializing in risk management. In some cases, larger institutions have their own separate legal department, usually headed by an attorney (or several attorneys) and an entire team of legal nurses.

In this setting, the legal nurse consultant will review any incident reports for potential liability as well as review claims as they come into the department even before they may be the basis of a lawsuit. The legal nurse may be asked to perform research into a situation to determine what the liability of the institution might be and to educate the other members of the team regarding any potential outcome based on her knowledge of the case and the particular health issue to which it relates.

INSURANCE COMPANIES

Insurance companies provide liability coverage for individuals as well as entities (eg, hospitals). As such, they deal with many and various issues related to healthcare. The legal nurse consultant can find her skills put to good use by these companies as they attempt to decipher potential exposure.

Other Positions

It is certainly not necessary for the nurse in any of the following capacities to be a legal nurse consultant. Nevertheless, legal nurse consultants can use their particular skills and expertise if they find themselves in any of these positions:

• Case management
• Utilization review (UR)
• Risk management
• Quality assurance (QA)

Each of these departments differs slightly from the other in focus. Case managers tend to deal more directly with the delivery of care to a patient, while UR and QA personnel tend to monitor the effectiveness of the treatment delivered. Risk management scrutinizes the outcomes and what may have been deficient.

All of these departments address the appropriate standards of care and various health modalities, as well as the suitability of the delivery of the particular service. In this capacity, astute legal nurse consultants are invaluable in helping to mitigate potential risk, both to the patient and to the individual or facility that employs them.

Appeals

Once an insurance company has denied care to one of its insured members, that member has the opportunity to have the decision appealed. When the request is received for an appeal, the case must be worked up medically to attest to the validity of the denial. While many medical professionals can work in this capacity, a nurse trained in the legal arena can be especially useful when dealing with the intricacies of the appeal process.

LIFE CARE PLANNER

Life care planning is a specialized field unto itself and there are those who do not consider it true legal nurse consulting. However, for the sake of completeness, we include it here.

The final determination in most medically related cases is the extent of the damages to the plaintiff. While pain and suffering are important to the plaintiff, sometimes the only way to place a value on a case is to determine what the protracted medical costs are going to be over the life of the injured party. Enter the life care planner. This person, who is often a nurse and very often a legal nurse, is able to take apart the case, assess the many health issues, and, using very specific data, place a dollar value on what it will cost to care for this plaintiff for the remainder of life.

These costs include not only doctor visits and medications but also such things as durable medical equipment, pharmacy needs, and psychosocial costs. The life care planner must also look at each disease process or injury and determine what other needs may arise, such as potential emergency room visits and hospitalizations for possible infections.

All of these costs are then placed into a formal report and submitted to the attorney or insurance company to be used to place a dollar amount on the alleged damages in mediation or at trial.

INDEPENDENT VS. EMPLOYED POSITIONS

One of the first decisions a new legal nurse consultant has to make is whether to be an independent contractor or an employee. Both capacities have their positive and negative aspects.

The most common (and simplest) way to start your life as a legal nurse consultant is to be an employee at a law firm. This can be either on the plaintiff or defense side. New legal nurse consultants may find themselves in a small firm where they are the only nurse or may wind up in a large corporate office where they are one of many on the nursing team. In the larger setting, they will more than likely interact with other types of team members such as legal secretaries and paralegals.

As employees, whether of a law firm or a hospital (or any in-house setting), legal nurse consultants will have several advantages over the independent contractor. Employees can rely on a regular paycheck, with benefits such as sick time, vacation time, and workers' compensation. They don't have the responsibility of running a day-to-day business operation and all the worries and headaches that can entail. They can develop close working relationships with peers and come to rely on them in times of necessity.

While independent contractors do not enjoy those benefits, they have the excitement of autonomy and control over their own careers. They are totally in charge. They get to grow the business and make it what they will. They can branch out and work a variety of cases.

Often, legal nurses who are employed work on only one type of case, such as medical malpractice. Independent legal nurse consultants can choose many types of cases. They are not locked in to one category of cases based on the specialty of the attorney, as are their colleagues who work in a law firm.

BECOMING A LEGAL NURSE CONSULTANT

There are many avenues to legal nurse consulting. Talk to several legal nurses and you will probably get as many different suggestions; however, all will agree that a nurse should have several years' clinical experience working clinically as an RN before contemplating work as a legal nurse consultant.

That being said, there are many ways to get to your goal. A quick search on the Internet will reveal several online courses. The American Association of Legal Nurse Consultants has its own tape series that is informative and will get a nurse off to a solid start.

If you feel the need for a more hands-on approach, many community colleges offer legal nurse consulting courses that convey college credit. Finally, there are mentorship programs that allow you to shadow a legal nurse consultant and learn as you go.

Even if you aspire to an independent career, working for a short time in a law firm is highly recommended. There is no substitute for the experience you will gain working side by side with an attorney and the rest of the legal team.

Services to Offer

So, what services will you as the legal nurse consultant be expected to offer? The legal nurse consultant can be employed whenever a case involves medical records and/or issues. While all attorneys have their own ways of doing things (and this list is by no means exhaustive), in general you can be expected to be capable of medical records analysis, research, and procuring expert witnesses.

MEDICAL RECORDS ANALYSIS

A complete analysis of the medical records is necessary in order to understand the full ramifications of the allegations and the potential damages. The first step is to organize the records already obtained by the attorney into a useful format. When this is done, it will become apparent what records might be outstanding or missing so that they can be requested. The records already disclosed are placed into binders in whatever order the attorney prefers. Often, they are Bates-stamped (an alpha-numeric identifier is placed at the bottom of each page for reference).

The healthcare expertise of the legal nurse can be very useful in instructing the legal team regarding what records may be crucial to the case; for instance, in an obstetrical case fetal heart monitor strips might be missing. In each case the nurse can identify items—autopsy records, billing records, laboratory reports, pharmacy records—that will lead to further information. It is vital to analyze the records for evidence of possible tampering or alteration as well.

Usually, the attorney will ask the legal nurse to construct a chronology from the records obtained. While the format may vary from law firm to law firm, the chronology is a summary of all the pertinent records in a layout (often a Word document) that delineates the date, source, and significant information from each record entry. Done properly, this will summarize the case in such a way that information can be easily retrieved and digested in order to further analyze the case.

Timelines and narrative summaries may also be done to outline certain segments of the case such as a code arrest and the details that led up to it.

RESEARCH

A search of the medical literature can be vital to a case, both to educate the attorney and, if the case goes to trial, the jury. Often, research reveals medical literature can be obtained and used at deposition when questioning the experts of each side. It is up to the legal nurse to research the many databases available and procure information that is applicable to the medical issues specific to the case at hand, digest what is in them, and organize them for the attorney and the rest of the legal team.

PROCURING EXPERT WITNESSES

Often, a case can turn on the testimony of an expert witness. The responsibility of choosing the appropriate category of expert as well as obtaining the expert's services is often left to the legal nurse consultant. It is vital that you understand the issues germane to the case and also have an understanding of the legal process so you can procure the person best suited in each situation.

When you have approached an expert and your expert has agreed to review the case, your job is not over. The expert's background must be thoroughly scrutinized before you deem it appropriate to submit to the attorney. Any flaw in the expert's background (eg, articles written that would be adverse to the case, services advertised as an expert) needs to be known before making a final choice.

RESOURCES

Seasoned or new, there are many resources available to help legal nurse consultants in their various capacities no matter on what level they find themselves.

Networking is by far the most valuable resource for the legal nurse. Sharing and conferring with peers regarding research, case points, experts, and business tools is the best way to gather information. The relationships and good will built this way is both priceless and important.

You can network in person through local and national meetings of the AALNC. Working within your organization by volunteering is the best way to meet others with your interests and goals. You can also "meet" others online by joining listservs and other online groups through such portals as Yahoo.

When you first start out, legal nursing may seem overwhelming and confusing. Some nurses prefer the companionship and direct approach of an apprenticeship under the guidance of a more experienced legal nurse consultant. The following Resources section can get you started.

Posted July 1, 2008

Expires July 1, 2010

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