You may have asked yourself, “What is a Legal Nurse Consultant (LNC) and why would I want to utilize one?” The legal nurse consultant is a registered nurse who assists attorneys in navigating smoothly through the convoluted and confusing health care system. Whether the settings are acute care hospitals, outpatient settings/clinics, extended care skilled nursing centers, residential care centers, or physician offices, the LNC can accurately and thoroughly review, interpret and analyze the information as to the standard of care, omissions, errors and the appropriateness of care provided and can impart an opinion to the attorney. This article will highlight certain aspects of the role of the LNC, provide a basic overview of the LNC in elder abuse cases.
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.