Required Qualifications

The two main qualifications for the LNC are that he or she must be a Registered Nurse with at least five years of clinical experience. It is not necessary that the LNC have experience in the legal arena. It is helpful, however, for the LNC to have advanced education in the form of university degrees, preferably a related Masters degree and/or ANA certifications. Such certifications must be from bonifide nursing organizations, in areas such as geriatrics, critical care, or med-surg. Having a LNC certification is not valid or useful. The attorney should seek the assistance of the LNC because of the registered nursing and healthcare experience that gives the LNC the ability to determine whether a breach of the standard of care has occurred for his particular case. Thee is no such credential such as “certified legal nurse consultant” even though you will eventually see those who tout this as a credential. There are many who are making much money on such vulnerable nurses who seek a legal nurse consultant certification.

The LNC needs to be knowledgeable in the standard of care, the nurse scope of practice and the Nursing Practice Act, as well as the state and federal laws and regulations specific to the healthcare setting in which the alleged injury occurred. The LNC should be capable of providing the attorney with a succinct definition of the standard of care as well as his or her source(s) for that definition. Examples of some standards that may be used are the Federal OBRA/CMS standards used in Long Term Care, Joint Commission on Healthcare Accreditation, Department of Health and Senior Services by State, American Nurses’s Association, Wound Care Society, and many more.

Case Review

An LNC can be utilized in any case where health, injury and illness are at issue. Examples where LNC services have been utilized are, of course, medical/nursing malpractice, personal injury, Worker’s Compensation, IME/DME, employment law and product liability.

Services

The Legal Nurse Consultant can be utilized as a consultant, assisting behind the scenes, or as an expert witness. Some of the typical services the LNC provides, either as a consultant or an expert witness, are medical record review, reviewing cases for merit, medical record organization, and analysis of the medical record content and the care provided. The LNC can determine whether the entire record has been secured, whether additional records are needed and whether the standard of care was met. The LNC consultant can generate reports as directed by the attorney. These reports range from medical and/or pharmacology chronologies to graphs and timelines. The LNC consultant can also assist in formulating interrogatory and deposition questions, identifying experts needed, and obtaining the experts. The expert witness/LNC opines regarding the standard of care for deposition and trial, if necessary. Generally, the LNC expert witness may be asked to produce a written report for the attorney.

Communication

Communication is an integral part of the LNC’s duty. When contacted the LNC asks what is the case about, what are the attorney’s needs related to the case, whether the attorney requires the LNC’s services as an expert witness or consultant, if a written or oral report is expected, the amount of time to be spent for the initial review and the deadline for submission of the work product/opinion. The LNC’s fees are discussed and decided at this point. After record review has occurred, the LNC clearly and succinctly presents the facts of the case and his or her findings and opinions regarding the case to the attorney and may requests additional documents for review to further test these findings and opinions. The LNC may also review the record for any fraudulent entries or other related issues.

The services of the LNC are particularly useful in the area of elder abuse. The medical records may be voluminous, as they can come from a multiple of healthcare settings and can cover an extended period of time. Long-term care facilities are subject to a tremendous amount of regulations that dictate their necessary documentation and cause the medical records to be complicated and very lengthy. The LNC, who is acquainted with the regulations, can efficiently review and assess whether the standard of care, the Nursing Practice Act, or the state and federal laws and {OBRA} regulations were or were not breached. The LNC can save the attorney time and money by utilizing his or her experience and knowledge to competently perform the medical record review and analysis of the care provided, thereby allowing the attorney and the attorney’s staff the time to practice law. Although Physicians may also review cases for merit and provide similar services, they are no doubt, much more expensive on an hour to hour comparison, and cannot know the nursing standards or nursing standard of care. Attorneys are under the mistaken impression that a Physician must be better than a nurse due to stature and years of education. This is true for diagnosis perhaps, but not for dealing with nursing standards of care and facility operations and issues such as staffing, falls, and wounds.

As registered nurses practicing within the realm of healthcare, we have been the “champions of the elderly” as the advocates of this group of patients. However, increasingly, nursing and other healthcare professionals, along with healthcare and community care facilities, have come under scrutiny by families and the legal profession making allegations of elder abuse. These allegations are aimed at those individuals and facilities that historically have been seen as the advocates for the elderly.

It is important to understand that the basic service provided by the acute care hospital and the skilled nursing facility is “skilled nursing care”. Nursing care is provided in addition to the medical services required by the person admitted as a patient in an acute care hospital or resident in a skilled nursing facility. Therefore, issues of negligence and the standard of care within the hospital or skilled nursing facility generally encompass the nursing care and services provided to the client. The seasoned LNC knows the scope within which he or she can opine and stays within the scope of nursing. Allegations of malpractice committed by other healthcare professionals need to be addressed by experts in that specific profession and not by the LNC.

Elder Abuse Claims Analysis for Plaintiff and Defense Attorneys

The first step is to secure as much information from the potential client as possible prior to ordering any medical records. Medical records for the elderly patient are usually voluminous, simply because the geriatric patient generally has a multitude of medical issues directly related to the process of aging and chronic illness. When speaking with the potential client, the attorney will be faced with someone who has a story to tell. The attorney can speak with the potential client or have the LNC contact the potential client.

Being able to manage the conversation to secure the pertinent information required necessitates a pre-written list of questions to ask, which may include: type of injury, date of injury, name, address and phone number of the facility, name of the person to whom the injury occurred, relationship to the caller and the length of stay in the facility. This list is not inclusive, but offers the basics.

If the information provided suggests further investigation, then the next step is to secure the medical records from the facility where the alleged injury occurred. The facility may be an acute care hospital, a skilled nursing facility or a community care facility. Oftentimes the potential client already has some records, usually incomplete, but a start. Once the LNC has reviewed the records for merit, he or she will notify the attorney of the findings. The findings should address whether or not the allegations of elder abuse meet the requirements of the Specific State Department of Health Administrative Code. If the review indicates merit to the allegations, then the LNC should provide the attorney with a request for any other necessary and additional records for review, which can include previous admissions to other facilities, physician office visits, death certificates and/or autopsy reports, if applicable, prior to generation of the complaint. Once those records have been reviewed, the LNC should be able to provide the attorney with specific failures of the standard of care and those failures unique to the elder abuse statutes. It is from these failures that the attorney should have the foundation for the complaint.

The LNC reviews the medical records looking for breaches in the nursing standard of care. The LNC utilizes a number of resources to determine failures of the nursing standard of care, which can include, but are not limited to: the Nursing Practice Act, standards of practice specific to the facility and type of nursing area involved, state and federal laws and regulations applicable to the facility where the alleged injury occurred, and professional journals. The LNC analyzes the nursing care provided to determine whether or not the allegations rise to the level of elder abuse, and if not, whether nursing negligence or gross negligence exists. To accomplish this task, the LNC scrutinizes the following sections of the resident’s or patient’s medical record: medical history and physical, MD orders, nurse aide notes, MDS, care plan, nurses’ notes, vital/ weight records, intake and output records and ancillary services records.

After the complaint is filed, the LNC can continue to assist the attorney, either as an

expert witness or consultant. As an expert witness, the LNC opines regarding the nursing standard of care; thus, the LNC may generate a declaration, be deposed and testify at trial. As a consultant, the LNC can generate written reports listing strengths and weakness of the case, identify other experts who may be necessary to address the standard of care for other healthcare professions, assist in requests for production, assist with deposition questions and may attend mediation sessions and arbitration hearings. Similarly, the LNC can be brought on by the defense attorney even prior to a complaint being filed by the plaintiff, but generally comes on board after the complaint has been filed. The LNC can be utilized as an expert witness or a consultant. The LNC compares the medical records with the complaint to determine whether or not the complaint is accurate in its allegations of elder abuse. The defense LNC utilizes the same resources as the plaintiff LNC to determine the validity of the elder abuse allegations and to formulate opinions.

Other Critical Areas are falls, wound care-pressure ulcers, IVs, and medications to name a few areas that LNCs are well versed and can provide much case direction and expertise.

Conclusion

Legal Nurse Consultant services may be utilized by the attorney for any case in which health, injury, illness or death is an issue. The LNC is an adjunct to the services of an attorney and can save the attorney time and money. Finding the right LNC is not as hard as you think. Once you obtain the right one or two, they will become indispensable. Although a focus in this article is Elder abuse, there are many other areas that the LNC can assist with such as: falls, wounds-pressure ulcers, IVs, medication management.

One of the first places to look is the Medicare website (www.medicare.gov/nhcompare). This website contains a newly implemented Five-Star Quality Rating System for nursing homes. The Five Star System provides nursing home ratings based upon three sources:

health inspections; staffing levels, and quality measures.

The system then provides a star rating for each category and a combined score in the form of an overall rating. This site allows anyone to research the highest rated nursing homes by state, county or city.

I advise “clicking” on “health inspections”, which gives a detail of areas cited for deficiencies. One cannot simply look at the number of citations, but look at the category that the weakness was in. for instance, clinical areas can include: accidents {falls}, pain management, pressure ulcers {acquired wounds}, nutrition, etc…. A deficiency citation regarding a medical record storage, or untimely activity, for example,  does not imply any clinical nursing concerns. So one must read through the list of deficiencies carefully to make a judgement.

Families should then be encouraged to conduct their own in-person inspection of the nursing home. The Medicare website also provides a “Nursing Home Checklist” which can be printed out and used at the time of the in-person inspection. Families should talk with the nursing home staff about their Five Star Rating and ask what else they are doing to improve the care to their residents.

Many attorneys have discovered that skilled nursing homes are owned by “Shell Corporations” which have been set up by the real owners to avoid liability for negligent care of its residents. If a negligent case is proved in litigation, these nursing homes file for bankruptcy to avoid payment for damages. Families are not aware of the importance of researching the ownership of any facility that is being considered to care for a loved one.

My education and experience provide me with the skills to review the medical records from nursing homes for standards of nursing care. In addition, knowledge of state and federal regulations and accreditation standards enable me to determine if quality measures have been met in these cases.

Kathleen Martin, RN, MSN, MPA, LNHA, CPHQ, WCC

The study’s leading author, Linda Aiken, director of the Center for Health Outcomes and Policy Research at the University Of Pennsylvania School Of Nursing says that the difference between staffing at hospitals in California verses New Jersey and Pennsylvania “is very large, about two more patients per nurse (in medical surgical units). And that’s very significant.”

Ms. Aiken attributed the decline in California’s mortality to better nurse- patient ratios because “Nurses are the main surveillance system in hospitals.” Eighteen (18) other states are considering lowering their nurse-staff ratios.

Similar disparities were seen for nurses working in other units such as oncology, labor and delivery, telemetry and pediatrics.

Also, Aiken reported that 88% of nurses surveyed in a medical-surgical unit in California reported having five patients. Aiken found that each patient added to a nurse’s workload added 7% to the mortality rate for patients undergoing common surgeries. Nurses with higher workloads were also associated with more nurse burnout, job dissatisfaction and precursors of voluntary turnover.

This report confirmed what nurses have suggested for years, heavy workloads contribute to errors and prevent dedicated nurses from being able to provide the quality of care the patient expects and deserves.

In Long Term Care, he OBRA and State Department of Health standards, dictate a minimal hours per patient day. {HPPD}. That means that each patent is required to have a minimal number of hours of direct care. This number is usually 2.5 hrs per patient per day. This is relatively low when we see that there are 24 hours in a day. Most quality facilities have PPDs of 2.8 for LTC/Nursing home residents, with 3.2+ hrs for sub-acute patients.

 1. What is a Kennedy Terminal Ulcer?

A Kennedy Terminal Ulcer is a pressure ulcer some people develop as they are dying.

2. What does a Kennedy Terminal Ulcer look like?

It usually presents on the sacrum. It can be shaped like a pear, butterfly or horseshoe. It can have the colors of red, yellow, black or purple. The borders of the ulcer are usually irregular. It has a sudden onset. The two statements you hear most are: 1: “Oh, my gosh, that was not there the other day.” 2: “I worked Friday, it was not there then, I was off the weekend and when I came back on Monday there it was.”

3. How does a Kennedy Terminal Ulcer progress?

It usually starts out as a blister or a Stage II and can rapidly progresses to a Stage III or a Stage IV. In the beginning it can look much like an abrasion as if someone took the patient and drug his or her bottom along a black top driveway. It can become deeper and starts to turn colors. The colors can start out as a red/purple area then turn to yellow and then black.

4. How are these different than other pressure

ulcers?

They can start out larger than other pressure ulcers, are usually more superficial initially and develop rapidly in size, and depth and color.

5. What kind of treatment is best for a Kennedy

Terminal Ulcer?

Treatment for a Kennedy Terminal Ulcer is the same as for any other pressure ulcer with the same characteristics. What you see is what you treat. When it is in the blanchable/or non-blanchable intact skin stage the goal would be to relieve the pressure and protect the area. When it becomes a Stage II or a partial thickness ulcer usually there is not a lot of drainage and a thin film, hydrocolloid, foam or gel may be indicated. When it is a full thickness wound, Stage III or IV depending on the amount of drainage you could use a hydrocolloid, foam, gel, or calcium alginate. If there is necrotic tissue slough (yellow tissue) or eschar (black, brown, beige or tan tissue) you may want to use an enzymatic debriding agent. If it becomes clinically infected you may want to consider a dressing with silver. Due to the fact that such ulcers occur in the terminally ill, the comfort of the person is of the utmost importance in deciding on the course of treatment.

6. What causes a Kennedy Terminal Ulcer?

Further research needs to be done on this subject. However, one idea is it may be a blood perfusion problem exacerbated by the dying process. The skin is an organ, just like the heart, lungs, kidneys, lungs and liver. It is the largest of the body organs and is the only one that is on the outside of the body. It can reflect what is going on inside the human body. One theory is as people are approaching the dying process the internal organs begin to slow down and go into what is thought of as multi-organ failure. This is where all the organs start to slow down and not function as efficiently as previously. Skin failure can occur just as any other organ can fail in this process. No particular symptomatology may be detected except the skin over bony prominences starts to show effect of pressure in a shorter time frame. Where as turning a patient every two hours may be enough in somewhat of a normal situation it now may cause superficial tissue damage.

7. Can a Kennedy Terminal Ulcer get better?

Yes, and no.

The majority of them do not. It is something that is generally thought to be terminal. However, it has been known for a patient that was terminal or at the end of life and the patient or family decided they did want intravenous or tube feeding intervention along with other appropriate modalities to change their mind and decide they did want all available interventions. At that point I have known of patients to have this phenomena reversed, but it is rare.

8. When was a Kennedy Terminal Ulcer first

described?

In March of 1989 the National Pressure Ulcer Advisory Panel put together their first conference in Washington D.C. The conference was to help determine how many pressure ulcers there were (prevalence) and could you predict who was going to get them.

9. What age group is this prominent in?

Further research needs done but it tends to be a geriatric phenomenon. It does not seem to be prominent in pediatrics. It is reported frequently in hospice patients, but is not exclusive to this population.

10. How did it get its name?

It was named by the Medical Director of the Byron Health Center is Fort Wayne, Indiana, Dr. Stephen Glassley. He termed it “The Kennedy Terminal Ulcer”. Naming it after the first Family Nurse Practitioner, in Fort Wayne, Indiana, Karen Lou Kennedy. Record keeping was initiated indicating some patients developed pressure ulcers with similar characteristics that went on to die in a short time frame. As the data was reviewed a pattern developed as to the characteristic and time frame from onset to death. This data was reviewed by the medical director, thus naming it the “Kennedy Terminal Ulcer”.

11. Why have I not heard of this before?

This was first described in modern literature by Karen Lou Kennedy in 1989 in Decubitus (now known as Advances in Skin & Wound Care) Vol.2, No,2, May 1989. p.44-45

However, in about 2002 Dr. Jeffrey M. Levine, MD, AGSF, found a long lost textbook published in 1877 by professor Dr. Jean-Martin Charcot called Lectures the Diseases of The Nervous System. Dr. Charcot was a French neurologist considered the father of modern neurology and the first professor of diseases of the nervous system regarded as one of the most important researchers in the field of clinical neurology of the 19th century. This ulcer, not named as such yet, was described here.

Federal health officials have announced that they have expanded the HospitalCompare website, making more information available on 30-day mortality rates for three conditions, and showcasing a new “one-stop shopping” format to find data on various types of healthcare services, from physicians to dialysis centers.

Hospital Compare provides information on how well hospitals provide recommended care to patients.

Officials also announced expansion of the Quality Improvement Organization program, which provides technical assistance and resources to providers who are having trouble meeting quality standards.

The first part of the expansion involves an additional year of data on 30-day mortality rates for heart attack, pneumonia and heart failure for each of 4,700 hospitals in theU.S.where those care services are performed. New data showing small changes were also released for 30-day readmission rates for these same diagnoses. Readmission rates were .1% lower for heart attack in the 2007-2010 period (from 19.8%) compared with 2006-2009 (19.9%) but were higher for pneumonia (from 18.2% to 18.4%) and heart failure (from 24.5% to 24.8%).

Long ED Waits Related to Increased Mortality

A new study published in the June 2011 issue of British Medical Journal found that patient presenting to the emergency department during longer wait times might be at an increased risk being admitted to the hospital or even death within the next week.

Patients who left without being seen, however, were not at higher risk of adverse events in the short-term compared to patients who were seen and discharged.  Researchers state in the study this could be because of slightly higher rates of follow-up doctor appointments or conditions that resolved while waiting in the ED.

Maine Law to Require MRSA and C. Diff Reporting

On June 13, Mainepassed LD 1212 (Public Law, Chapter 316), which replaces its 2009 MRSA screening legislation. The new law requires all hospitals to submit data on a monthly basis on MRSA and Clostridium difficile for all inpatients to the National Healthcare Safety Network. This replaces the 2009 provisions that focused on MRSA screening.

Ultrasound in Wound Management

Ultrasound was used successfully for years as a non-invasive diagnostic tool before its potential benefits in wound healing were first investigated. Ultrasound waves, formed when electrical energy is converted to sound waves at frequencies above the range of human hearing, are now used routinely in wound management and can be transferred to tissue though a treatment applicator. The depth of penetration is dependent on the frequency, with higher frequencies resulting in lower tissue penetration.

Both the thermal and non-thermal properties of ultrasound contribute to its therapeutic benefits. The warmth generated at relatively high intensities can be used in musculoskeletal conditions such as spasm, as well as in the remodeling phase of wound healing to improve scar/wound outcome. The non-thermal effects of ultrasound generated at lower intensities are currently attracting considerable interest as they appear to cause changes in cell membrane permeability and thus the diffusion of cellular metabolites.

Ultrasound therapy is indicated for chronic or recalcitrant wounds that are clean or infected, pressure wounds, venous insufficiency, acute trauma, and recent surgery. The technique should not be used in simple wounds or in cases of osteomyelitis, bleeding, severe arterial insufficiency, or acute DVT.

Although ultrasound therapy appears to have a number of advantages, the main evidence to support its use still comes from laboratory results, with clinical data proving somewhat disappointing. However, anecdotal reports do provide some evidence for its use in a broad range of wound types.

Wound Care Standards for Documentation

{from K. Martin Lecture Power Point program on topic for Nurses}

Per standard of care and regulation, the following is to be documented in a consistent manner: AHCPR-# 15: assessment and documentation is to be done at least weekly. If complications, more often.

• Follow a systematic  method:
• Type of wound
• Staging or classification {Stage, I, II, II, IV, or partial thickness wound}
• Correct anatomical location
• Measurements in centimeters {include depth}.Use consistent system: clock
• Wound base tissue-slough, eschar, granulation, epithelialization; doc % of tissue noted in wound bed.
• Symptoms of infection-Fever, increased white ct, hypotension, general malaise, redness, swelling, induration, streaking, purulent drainage
• Drainage-Amount, color, consistency
• Odor
• Tunneling/Undermining

Wound edges-curled {epiboly}, callused, macerated, detached

• Periwound-Intact, scaly, edema, redness, warmth, color variations, patterns, alleviating and aggravating factors, current and past pain management plan, effects of pain, pain goal, physical exam of pain.

Treatment-

• Current topical treatment-Cleansers, Dressings, Ointments
• Response- Better, no change, decline, modifications.
• Any procedure performed and response-
• What was performed?
• When was it performed?
• Who performed it?
• How well the patient tolerated it.
• Adverse reactions to any interventions.

Additional-

• Record each phone call to and form physician, and response.
• Dietary Interventions:
• Supplements, vitamins
• Lab work
• Turning schedule, support surface, heel protection, skin barriers.
• Incontinence management
• Document any discussion of questionable medical orders. Be detailed. YOU ARE RESPONSIBLE!!
• Referrals-Dietary, CNS, Wound Care Svc., Podiatrist, Therapy.

By:  Brian N. Rath, Esq. and Megan S. Mueller, Esq. 

Brian N. Rath, Esq. and Megan S. Mueller, Esq. of Buchanan Ingersoll & Rooney, P.C., presented “Legal Updates in Long Term Care” at the New Jersey Chapter meeting on June 9, 2011.  Focusing on the impact of health care reform upon the long term care industry, the presentation addressed various newly enacted compliance, reporting and transparency requirements, including, but not limited to the new requirements imposed by the enactment of the Elder Justice Act.  We are taking this opportunity to provide a brief summary of the affirmative obligations imposed upon certain licensed nursing facilities pursuant to the Elder Justice Act, which became effective on March 23, 2010, as well as provide update due to recent guidance from CMS concerning these obligations.

Enacted in connection with the Patient Protection and Affordable Care Act, the Elder Justice Act amends the Social Security Act and establishes a federal elder justice program to prevent, detect, treat, intervene in and prosecute elder abuse, neglect, and exploitation and improve long term care.  While the Elder Justice Act implements a number of measures targeting elder abuse, neglect and exploitation, the most critical for licensed nursing facilities is the mandatory reporting of suspected elder abuse crimes and employee protection from retaliation for such reporting.

Specifically, the Elder Justice Act mandates that a long-term care facility, that receives at least $10,000 in Federal funds must annually notify all covered individuals, including each individual who is an owner, operator, employee, manager, agent, or contractor of the long-term care facility (“Covered Individuals”), of the individual’s obligation to report any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility.  The mandatory report must be made to the State Agency (on behalf of Secretary of HHS) and at least one local law enforcement authority, within very strict time limits.  If the suspected crime results in serious bodily injury, the mandatory report must be made immediately and in no event later than 2 hours after forming the suspicion.  Alternatively, if the suspected crime does not result in serious bodily injury, the report must be made no later than 24 hours after forming the suspicion.

Additionally, the Elder Justice Act both: (i) prohibits long-term care facilities from retaliating against an employee who reports or causes a report to be made in accordance with the requirements of the Act, and (ii) requires the facility to conspicuously post a sign specifying the rights of employees under the Elder Justice Act, including a statement that an employee may file a complaint with the Secretary of HHS against a long-term care facility that violates the provisions of the Elder Justice Act and information with respect to the manner of filing such a complaint.

The penalties for failure to comply with these mandatory requirements include civil monetary penalties up to $200,000 (or $300,000 if the violation is deemed to exacerbate the harm to the victim), potential exclusion from participation in all Federal health care programs, and potential ineligibility for Federal funds in the event that a long-term care facility employs an excluded individual during the period of such exclusion.  Moreover, the Elder Justice Act imposes additional penalties for retaliation against a covered individual for complying with the mandatory reporting requirements, including civil monetary penalties up to $200,000 and possible exclusion from participation in Federal health care programs for a period of 2 years.

Importantly, on June 17, 2011, CMS issued guidance to the State Agencies confirming the current obligations of long-term care facilities pursuant to the Elder Justice Act and directing that all reporting must be made to at least one local law enforcement agency and the State Agency (in  fulfillment of the statutory reporting requirement to HHS).  CMS highlights the possible deficiency citations for a SNF/NF for noncompliance and further outlines certain necessary next steps towards compliance, as follows:  (1) determine whether the facility receives at least $10,000 in federal funding; (2) consider coordinating with State and local law enforcement to determine what actions are considered crimes in the facility’s jurisdiction, thus triggering the reporting requirements; (3) if applicable, review and revise existing policies, procedures and compliance plans to reflect the new mandatory reporting requirements and consider whether to designate a single individual within the facility to be responsible for such reporting, as CMS has confirmed that multiple Covered Individuals may file a single report that includes information about the suspected crime from each Covered Individual and the identification of all Covered Individuals making the report; (4) educate all Covered Individuals concerning their mandatory reporting obligation and establish a plan for implementing the annual notification to all such Covered Individuals concerning same; (5) post a sign in a conspicuous location in the facility that identifies the rights of employees pursuant to the Elder Justice Act; (6) ensure compliance with the prohibition upon retaliation.  Should you have any questions concerning these new requirements or necessary steps towards compliance, please do not hesitate to contact the authors at brian.rath@bipc.com or megan.mueller@bipc.com.