Articles: Pain and Suffering
Nurse Accepted by NJ Judge to Explain Medical Records
 Portions
of this article were extracted from Pat Iyer's chapter,
"The Expert Fact Witness," in:
Patricia Iyer (Editor)
Medical
Legal Aspects of Pain and Suffering,
Tucson: Lawyers and Judges Publishing Company, 2003.
A New Jersey Superior Court
Judge recently ruled that a plaintiff’s attorney could
present the testimony of a nurse as one who could summarize
and explain extensive and highly technical records which
were apt to cause serious confusion in the jury room. (See
Heinzerling, 359 NJ Super 1 Appellate Division.) The judge
denied a defense in limine motion to exclude the testimony
of the registered nurse, Audrey Berry, to testify about
the information she extracted from the medical records of
the patient and to explain it to the jury in more understandable
terms.1 The plaintiff attorney was Gerald
Stockman of Stockman and Mikulski in Lawrenceville,
NJ. This role, which Patricia Iyer has provided in over 100
cases since 1990, is the use of the nursing expert as an
expert fact witness who summarizes medical records and explains
the symptoms, diagnoses and treatment rendered to the plaintiff.
The expert fact witness can testify about the pain and suffering
documented in the medical records of an individual injured
as a result of personal injury, medical malpractice, products
liability, toxic torts, workers’ compensation and so
on. Patricia Iyer has testified in courtrooms in New Jersey
and Pennsylvania in this capacity.
In a case recently tried in
Philadelphia, Patricia Iyer was the expert fact witness
who explained the voluminous medical records to the jury.
The case revolved around a man who suffered a bladder laceration
during a prostatectomy operation. His subsequent complications
included a bowel perforation which required a colostomy,
sacral bedsores, kidney failure, need for a feeding tube,
extensive hospitalizations and nursing home admissions for
the next 16 months prior to his death. The jury awarded
$1.1 million. The case was tried by Jacob Snyder
of Philadelphia and Alan Zibelman of Zibelman and
Nerenberg in Philadelphia. Alan Zibelman commented about
the effectiveness of this role: "Your demeanor and
professionalism surely came through to the jury to such
an extent that I do not believe defense counsel had any
basis to challenge the testimony you were there to offer.
The exhibits you prepared were most useful during your trial
testimony and we were able to refer to these exhibits at
various other times during the trial through other witnesses.
When you arrived with eight loose leaf binders indexed and
coded, it became clear that the fees we paid for your preparation
of this case were well justified by all the time it obviously
ase were well justified by all the time it obviously took
to organize and review these materials."
Why use a nurse?
In addition
to a nurse testifying about liability or to prepare a life
care plan, a nursing expert is also useful for preparing
a summary of the plaintiff’s medical records. Instead
of bringing in a parade of treating physicians or other
experts, the attorney can retain a nursing expert fact witness
who can review and summarize the medical records and present
them in their entirety. The attorney’s purpose is to
provide the jury with a clear, concise, understandable accounting
of the events in the medical records in order to persuade
the jury to accept the attorney’s depiction of the
damages. This same type of analysis can be performed for
a defense attorney to refute claims of excessive pain and
suffering not supported by the medical records.
In the New Jersey case, the
judge found that the nurse’s singular presentation
was an efficient and less costly alternative and was "also
apt to be more cogent than piecemeal accounts from each
doctor."1 Physicians tend to concentrate on explanations
of specific medical treatments and procedures and minimize
pain and suffering. Unlike a nurse, a physician makes brief
periodic visits to a patient’s bedside. They are rarely
at the bedside for an extended amount of time, do not perform
all of the painful procedures that nurses do, and do not
share the same holistic perspective of nurses. A nursing
expert fact witness, who is a legal nurse consultant, is
more likely to visualize and present a broader, more
comprehensive, and a more empathetic view of the events
described in the medical records. Legal nurse consultants
have expertise in both the legal and medical/nursing fields.
This dual expertise makes them excellent choices to fulfill
this testifying role.
Legal basis
Rule 1006
of the Federal Rules of Evidence permits the use of summaries.
The rule provides that when there are voluminous writings,
recordings or photographs which cannot be conveniently examined
in court, that a chart, summary or calculation may be presented.
The originals must be made available for examination or
copying by the opposing party and the judge may order their
production in court.2
Use of pain and suffering
summaries
The assessment of
pain and suffering sustained as a result of negligence is
important in initially evaluating a potential new case and
for presenting these damages to a jury. Both plaintiff and
defense attorneys need to understand the injured person’s
damages in order to evaluate the worth of the case. Medical
records generated both before and after the injury may be
analyzed to determine if the results of the alleged negligence
produced a demonstrable change in the patient’s life
and if the patient experienced pain and suffering prior
to death. Careful analysis of medical documentation can
establish whether an individual had a level of awareness
of pain or "conscious pain and suffering".
The summary provides the attorney
with a comprehensive overview of the contents of the medical
record, with a specific focus on the problems the patient
experienced. The report of the expert fact witness is also
useful for the liability witnesses in the case, who may
use it to refresh their recollection about the medical events
when preparing for deposition or trial. The summary may
reduce the need and cost of the liability experts to perform
a complete review of all the medical records.
Format for the pain and
suffering report
The summary
of the medical record can follow several formats. The content,
format and length of the report should be based on the amount
of medical documentation available and the seriousness of
the injuries. Lengthy, detailed reports may be warranted
in a case in which the plaintiff dies after a lingering
illness lasting months, but not necessary in a case with
minimal, nonpermanent injuries.
The expert fact witness’s
assignment is to summarize the records and explain details
of medical treatment that would not ordinarily be understood
by laypeople. The expert fact witness should refrain from
speculating about what the plaintiff would have been thinking.
Drawing on medical training and experience, the expert is
able to make conclusions about sensations associated with
medical procedures. For example, nursing expert fact witnesses
know that certain procedures cause pain, such as injections
and debridements, wet to dry dressing changes, and that
other procedures cause noxious sensations. The expert fact
witness uses this information in analyzing records. When
selecting such an expert, look for the person who has excellent
oral and written communication skills, the ability to be
analytical and well organized, and to convey complex material
in a clear manner.
Portions of this article
were extracted from Patricia Iyer's chapter,"The Expert
Fact Witness," in Patricia Iyer (Editor) Medical
Legal Aspects of Pain and Suffering,
Tucson: Lawyers and Judges Publishing Company, 2003.
- Gallagher, M. Nurse’s
summary testimony allowed as explanatory evidence at trial,
New Jersey Law Journal, 5/20/02, p. 5
- Federal Rule of Evidence
1006, Federal Rules of Evidence 12/1/01, accessed on www.findlaw.com
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