Medical-Legal Topics

Writing Tips

February 8th, 2010

These are additional entries from my writing tips contest.

Store perfected phrases and language in the autotext feature of your word processing program. That way, you can just click on a key word and immediately produce the desired text at the correct position within your document. This is a big, big time saver.
Sue Kelly Paralegal, Red Bank, NJ

Keeping current includes newer uses of language, descriptors, etc. It also means your work product. Use current styles of paper, fonts, format, display folders, marketing tools, business cards, letterhead, etc. I find that after being in business since the 80’s, it is essential to update and upgrade all that we do from fashion to products.
Lorraine A. Shoaf RN, BSN, LNCC Legal Nurse Consultant

One of my final checks is to make sure my tense is consistent rather than moving from past tense to present tense and back and forth. Sometimes a tense change is necessary, but it should not occur at random throughout the document.
Kathy Clark, MS, RN Oklahoma City, OK

My writing tip is in a word, organization. Did I organize my facts? Is there a flow to the report? The organization of thoughts and facts should start with a beginning, middle and end and make it easy for the editor/ reader to follow the story line. It also makes reading the report a pleasure. Understanding that you are writing for a non-medical professional whose forte happens to be verbiage is limitless in value too.

It takes time to write a good report. I find that casual emails are not written with the same intensity that a report or a story is composed with.
Claire Hull, RN, CCM, CLNC

Remember this: Know your audience and gear your writing accordingly. If you don’t, your writing could be too technical, not technical enough, or you could miss the mark entirely, writing something for the wrong person or group of people. If you’re writing for business, you also risk disappointing your client.

For instance, I recently became a staff writer for two local medical magazines, each with a totally different audience. One is geared towards physicians and office managers; the other has an audience of lay people–”patients”– interested in health and wellness. I initially struggled with my articles, trying to figure out what the “angle” would be and how to write something that would be of interest. It then occurred to me that I just needed to remember my audience: those who are health providers, those that manage their offices, and everyday people (albeit with their own set of demographics) who are interested in improving their health. Knowing my audience helps me focus on what’s important to each group.
Karen Devin, RN, BSN, Lexington, Kentucky

Join us for a free class on how to stand out as a Legal Nurse Consultant, February 25. See http://www.patiyer.com/lncstandout/index.html

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Tags: communication skills, writing skills
Posted in Communication skills, Legal nurse consulting, Trial lawyer skills | No Comments »

Tips for Writing by Joan Pate

February 3rd, 2010

I ran a contest asking for suggestions for writing. This was the winning entry by Joan Pate.

I often have a “writer’s block” of sorts when I sit down to write a report on a case and have used a couple of techniques I used in a previous life as a Navy Public Affairs Officer. These suggestions helped me enormously when writing news releases, articles for publication, particularly on sensitive issues. They may be helpful to others who experience a similar situation.

Before writing a report, I follow the steps listed below and find my reports are succinct, precise and to the point.

1. Read similar material to the issue(s) in the case. This may be articles from the AAALNC Journal, medical legal references, medical references or clinical journals or research. There’s no prescribed period of time to read, but I find that after reading several articles or chapters, the words I need, flow quickly from my head to paper.

2. Using a 5X8 card, I jot down every thought about the report that comes into my head, placed in random fashion on the card. Such words in a ambulatory clinic case might be: clinic SOC, who’s the supervisor, assess/re-assess, verify med dose/action, fall risk, serial vital signs, old injuries? If what I wrote doesn’t seem to cover the issue, I go back to reading another article and then add more thoughts to the 5X8 card. These thoughts are collated into similar or like topics or headers.

3. Prepare a general outline for the report, just the way we were taught in school with sections like, I. A. B. C., II. A. B. C. D, etc

4. On a separate piece of paper, list all the players in the report, (with full name, position, title) and important dates/times/locations. Double check this information before proceeding. This list is critical to ensuring accuracy in the report.

5. I generally write my opinion first on whatever issue, I was asked to review, and then fill in the sections of the outline with appropriate data and information.

6. I review the written report at least twice before submitting it, with one review after a good night’s rest.

I hope this is the gist of what you were looking for; it was very helpful to me to write the thoughts down this way, because I realized that I was using tools that were very successful in the past.

Joan M. Pate’, MS, RN, Rio Rancho, New Mexico

Join us for a free class on how to stand out as a Legal Nurse Consultant, February 25. See http://www.patiyer.com/lncstandout/index.html

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Tags: communication skills, writing skills
Posted in Business skills, Communication skills, Legal nurse consulting, Trial lawyer skills | No Comments »

The Language Patrol by Pat Iyer

February 1st, 2010

I grew up in a household where proper use of English was crucial. The dictionary often joined us at meals as we argued over the correct use of a word or phrase. It was common to gleefully pounce on a slip of the tongue. When I was 10-years-old and riding in a car with my family, I saw a sign and announced to my family that we should watch out for Presbyterians. They howled as they passed the sign that said to watch out for pedestrians. No doubt this story would still make them howl. I choose not to remind them. It took too many years for them to forget.

Many of you grew up with your version of a language patrol. The language patrol helped me develop a fine ear for correct word usage, and that has served me well over the years. I have learned a lot of tips by spending 20 years editing other people’s reports, 22 years writing reports and 30 years writing for publication.

Tips for Checking Your Work Product

Attorneys, paralegals, and legal nurse consultants spend a lot of time writing. Consider these tips as you review your work product:

What is the point of my report? Did I make it?

Is my point credible? Did I supply enough information to establish it?

Did I start with the most important points?

Have I been careful not to assume that the reader knows everything I know about the subject? Have I provided sufficient education to the reader?

If I were the reader, what would be going through my mind right now and after I finish the report? What conclusions would I reach?

Have I mastered the facts? Did I omit or overlook any important points?

Was I clear? Is there any way I can improve the flow or organization of the report?

Did I avoid using passive voice?

Was I too wordy?

Did I ramble?

Did I spell the recipient’s name correctly?

Did I spell other names correctly?

Are my dates correct?

Did I use headers and autonumber each page except the first?

Did I correctly use either block, indented or modified block style in a letter?

Have I been consistent? For example, did I use all numbers for dates or spell out all months?

Is the format of my document consistent in terms of headers, justification, and spacing?

Did I use only one space after an ending punctuation mark and eliminate extra spaces with search and replace?

Did I correctly use singular and plural and possessive words?

Do the sentences flow smoothly, or are they disjointed, run-on, and unorganized?

Are all of my sentences set up with parallel structure?

Are all my sentences complete or did I leave out a subject or verb?

Did I vary sentence structure?

Was I repetitive?

Can I be more precise?

Can I eliminate any words without losing substance?

Are my paragraphs varying in length?

Did I spell and grammar check my document?

Did I read my work product out loud? Did I have to stop to take a breath as I read a long sentence? If so, did I edit the sentence or divide it into two?

Did I include both pairs of items, such as parentheses and quotation marks?

Have I proofread the report, noting my habitual mistakes and words that have been skipped over by the spell checker?

Have I checked my punctuation? Has someone else with a good grasp of writing reviewed my report?

Do you have any tips to share? Send us a comment. Learn more about how to improve writing skills by attending a free teleseminar on 2/25/10. http://www.patiyer.com/lncstandout/index.html for details.

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Tags: communication skills, proper English
Posted in Business skills, Communication skills, Legal nurse consulting, Trial lawyer skills | No Comments »

Why Doctors Should Not Testify to Nursing Standards of Care by Pat Iyer

January 28th, 2010

Nurses are the appropriate expert witnesses in nursing malpractice cases

The Illinois case called Sullivan V. Edward Hospital, 806 NE 645 (Ill. 2004) involved a man who climbed over side rails and was found on the floor with a head injury. The plaintiff attorney supplied a physician as the liability expert. He was critical of the nursing care by stating the nurse should have restrained the patient. He also testified the nurse “missed the diagnosis of delirium completely.”

Until the early 1980s, it was commonplace for physicians to testify about the nursing standard of care. Although this still occurs in some venues, it is becoming much less common. The status of nursing has changed. Not only do physicians no longer have the special knowledge required to testify in all cases of nursing malpractice, but their use as experts may create problems that could be avoided by using nurses as experts in nursing malpractice cases. Nursing and medicine are two distinct professions albeit with some overlapping functions.

The plaintiff won the Sullivan case; the defense appealed. The Sullivan case was appealed to the Illinois Supreme Court. The Illinois Trial Lawyers supported the position of the plaintiff, and the American Association of Nurse Attorneys also submitted an amicus curiae brief in support of the dense. The Illinois Supreme Court held the plaintiff’s physician expert was not competent to testify about the standard of care of a nurse.

In many venues, affidavits of merit and expert witness reports should be prepared by a person in the same specialty as the defendant. An affidavit signed by a physician who is critical of a nurse could be challenged on the grounds that the physician is not in the same specialty. Even though nurses and physicians closely interact with each other, and have a few areas of overlapping responsibilities, they function in two distinct specialties. Woe be it to the nursing expert who utters anything in a deposition or trial that sounds critical of a doctor. The predictable flow of questions follows:

Q: Nurse, you did not go to medical school, right? You did not complete a residency in (name of specialty), right?

Legal nurse consultants may assist an attorney develop questions to challenge the qualifications of a physician who is offered as a liability expert witness in a nursing malpractice case:

Are you eligible to sit for the nursing exam?
Are you are a member of any nursing professional association?
Have you ever worked as a nurse?
Do you have any firsthand knowledge of nursing practice other than for observations made in patient care settings?
Do you teach in a school of nursing?
Do you hold any nursing certification?
Have you written any nursing texts?

A series of “no” answers helps to establish that the archaic practice of allowing physicians to testify about nursing standards of care should be laid to rest.

Part of this post was based on Butler, K. Nursing: Qualifications for Testifying on Standard of Care, Journal of Legal Nurse Consulting, Fall 2004

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Tags: nursing expert witness, Nursing malpractice, Sullivan v. Edward Hospital, TAANA
Posted in Expert witness, Legal nurse consulting, Medical malpractice, Uncategorized, medical errors | No Comments »

Why inexperienced people make mistakes

January 26th, 2010

A group of residents eagerly perform complex surgery in the middle of the night while the attending surgeons who are supposed to supervise them are happily sleeping at home. Why is this very real scenario a bad idea? Why do interns, residents, nurses, and others make errors that injure patients? The answer lies in learning theory.

The Dreyfus Model of Skill Acquisition used by Pat Benner, a nursing theorist, breaks knowledge into two components: “techne” and “phronesis”. Techne knowledge is book knowledge: the information that is captured from procedural or scientific knowledge. The student must be given safe and clear directions on how to proceed, as there is no previous experience on which to draw. For example, a student nurse I supervised discovered her patient was short of breath. She attributed the symptom to anxiety, talked to the patient about her concerns, and held her hand. A more experienced person would have applied oxygen.

The second kind of knowledge is phronesis, which is acquired through learning in the practice setting. A nurse who makes a series of rapid decisions during an emergency draws on phronesis. The rapid response team members in hospitals are made up of experts who use this kind of knowledge.

The evolution of the expert practitioner passes through stages

Benner’s model of expertise, which is based on the Dreyfus model, describes how an individual may pass through five stages in developing expertise. Not everyone reaches the proficient or expert stage.

The novice rigidly adheres to rules or plans, has little situational perception and can’t make judgments. This individual is learning skills in clinical settings and must be closely supervised when delivering patient care.

The advanced beginner is a new graduate. The person functions with limited situational perception (the ability to put clues together to make decisions) and has difficulty discriminating between what is important.

The competent practitioner can see his or her actions within a broader context, and is capable of making sounder judgments. Conscious deliberate planning takes place along with standardized and routine procedures.

The proficient individual sees the situation holistically rather than in terms of its component parts. This individual more readily makes decisions, perceives differences from the normal pattern of a patient, and functions better with ambiguity. The proficient person has learned from experience and has an easier time making decisions.

The expert practitioner no longer relies on rules, guidelines or maxims, and intuitively grasps what is important in a situation. A registered nurse with expert knowledge may well exceed the knowledge of inexperienced physicians and may save a patient’s life by insisting on evaluation, diagnostic testing, change in medication, or another needed course.

A clinically experienced person enters a new healthcare setting as a new employee without knowledge of the politics, procedures, and policies. It takes time to learn “how we do it here.”

And thus we face the dilemma in health care: an inexperienced person will not learn without the opportunity to do so. He or she has to start somewhere. Yet, we don’t want that person to learn on us, our mother or father or child. When my husband had a triple bypass three months ago, the cardiac surgeon at Johns Hopkins proactively told us that he performed surgery. He said he had people in the operating room helping him, but he did the surgery. We were relieved to hear that.

A fair number of medical or nursing malpractice cases that come into Med League involve errors made by inexperienced people, whether they are new employees or new healthcare practitioners. Here are my suggestions:

Attorneys handling medical or nursing malpractice cases should be careful to determine the level of experience of the defendant. Determine the degree of supervision that should have been provided versus what was actually provided.
Ask about the orientation program the new employee should have received. Determine how much orientation staff agency employees received.
Ask the defendant if he or she sought help. Some of us, whether because of age, culture, or personality, would rather try to solve problems without help. This can be a recipe for disaster.
If you or a loved one needs care, seek the most experienced practitioner or hospital you can find.
If you or a loved one detects the person assigned to your care seems unfamiliar with your needs or medical equipment, insist that individual seek help from a more experienced person. Be an advocate for safety.
If you or a loved one needs surgery in a teaching hospital, insist that the attending physician be present. You may even cross off the consent form that allows residents and interns to perform parts of the surgery.

What do you think? How should inexperienced people learn? Send us a comment.

Parts of this blog post came from Moniaree Parker Jones, “Nursing Expertise: A Look at Theory and the LNCC certification Exam”, Journal of Legal Nurse Consulting, Spring 2007. Other parts came from the School of Hard Knocks.

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Tags: making mistakes, medical errors, Medical malpractice, personal effectiveness
Posted in Healthcare Risk Management, Legal nurse consulting, Medical malpractice, Nursing malpractice, Patient safety, medical errors | No Comments »

Managing Change and Uncertainty supplied by Natalie Gahrmann

January 20th, 2010

Change is inevitable – after all, nothing really stays the same. But in today’s challenging times, it seems like we’re on “uncertainty” overload, never knowing what will happen from one moment to the next. Here today, gone tomorrow – or, at the least, very different tomorrow. Uncertainty bring stress and confusion, and while most of us would be quick to say that we want less stress and more certainty in our lives, what we really want is less of a stress reaction to what life is throwing our way.

We can’t choose what happens to us – but we can choose our responses to the situations we encounter. Let’s take a look at five different responses that people have to stressful situations. As you read through these five responses, you may want to think of a recent stressful event or news that you may have received, and see what your reaction to that event can teach you about how you habitually respond. You may have one type of response at work, and another at home, or you may react differently depending on who else is involved.

The first, and unfortunately all too common response to stressful events is to suffer and be a victim to it. People who respond this way don’t take action. Things happen TO them – and though they may complain and be generally miserable about it, they don’t take any steps to do anything. They allow life to control them, instead of the other way around. This way of responding is certainly not recommended, and eventually, it will take its toll on one’s physical and mental health.

The second type of response is to accept it the situation, and to get some perspective on it. Someone with this response may say “so what,” or perhaps get some perspective on the situation by asking if it will it matter in a year – or a week – or even in a day.

The third way to respond is to actually take steps to change the situation – taking action to bring it to resolution (or at least move toward resolution). This is a very powerful response, and one that many effective leaders employ.

The fourth way to respond is to avoid the situation. People responding this way make a decision not to get involved in a situation that they don’t see as concerning them, or upon which they can’t make an impact. For example, someone may choose not to get involved in a dispute going on within their office if it doesn’t directly involve them.

The fifth and final way that people generally respond to stress is to alter the experience of the situation. When we look at a situation differently, the experience itself changes. Changing perceptions is probably the most challenging of the responses, because we tend to be stuck in our own interpretations and assumptions about what’s happening, but it is also perhaps the most powerful of all.

It’s your world, and you can create it as you wish. Remember, what one person sees as stressful, another person barely notices, or sees as exciting and full of opportunity. How are you going to choose today?

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Tags: change theory, Productivity, stress
Posted in Business skills | No Comments »

First Impressions by Pat Iyer

January 18th, 2010

One of my friends (Sara*) told me she ran into trouble on a substitute teaching job. It seemed the teacher disliked Sara based on her initial impression, and requested that Sara not return to the school. Sara was devastated and showed me a letter she wrote expressing concern about this comment. She asked my advice on what she should do.

negative first impressions sow seeds of discontent

The expression, “You never get a second chance to make a first impression” applies to all aspects of life. It applies to the patient who approaches the crowded check in desk of the busy emergency department. Is he greeted warmly, or is he seen as an intrusion? Do healthcare providers remember the patient may be scared, in pain, hungry or confused?

Have you had the experience of approaching a receptionist desk in a doctor’s office and having difficulty getting attention? Have you felt like you were an intrusion on the conversations going on behind the desk?

Have you ever felt like a diagnosis instead of a patient? In August 1996, my husband had a colonoscopy that revealed a large colon cancer. He was sent with a requisition form directly to the x-ray department to have a barium enema. The requisition form’s diagnosis stated “colon CA”. I sat next to my stunned husband; we had only a few minutes to absorb the news of his diagnosis. There was a technician responsible for getting him into the waiting area of the radiology department. One of her colleague asked her if she was ready to go to lunch. She called out, “No, I have to do a CA patient now.” I felt like someone had punched me in the stomach as I now realized my husband was branded as a CA patient.

None of these first impressions are cause for a medical malpractice suit but they set up a climate. An opportunity for establishing a caring environment is lost. If any mistake is made that causes harm, there are no credits in the bank- no kindly feelings towards the healthcare provider.

I advised Sara to make two copies of her letter and go to the school to express her concern about what had happened with the teacher. She learned, to her gratitude, that there were many positive comments in her file. She had made positive first impressions on lots of other teachers. What started as a negative experience turned into an opportunity for her to become of aware of how highly others regarded her.

* name changed

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Tags: customer service, first impressions, seeds of malpractice suits
Posted in Communication skills, Emergency Medicine, Medical malpractice, Personal observations, medical errors | No Comments »

A Model for Understanding Product Development by Pat Iyer

January 13th, 2010

What is the risky way to expand a business?

How do you determine if you should expand the services of your company? Should your law firm branch into another area? Should your legal nurse consulting firm start offering a new service? Which expansions are high risk? When should you make the change?

Norman Levy, a consultant, presented a model at the National Speakers Association Convention in August 2009 that made a lot of sense to me. These are four choices:

1. Provide more products and services to your existing customers.
2. Provide your existing products and services to a new market.
3. Develop new products and services for an existing market.
4. Provide new products and services to a new market.

Generally the lowest risk choice is #1, and the highest risk choice is #4. Conventional wisdom states that #1 is least risky because of the relationship you have with your current clients, who know and trust you. Med League started 21 years ago by supplying nursing expert witnesses, and added medical summaries, screening for medical malpractice, literature searches, attendance at IMEs, preparing of demonstrative evidence, and so on to our existing clients. These are #1 activities: more products and services to our existing clients.

Occasionally I teach (existing service) nurses who are being disciplined by the Board of Nursing, an example of a new market, a #2 activity.

When we started providing teleseminars for attorneys and legal nurse consultants in the fall of 2008, we branched into a #3 activity: new services for an existing market. We are about to launch a new service of a different nature to our existing market.

Although providing more services to existing client should be least risky, sometimes radical changes in the market place require businesses to shift the focus. For example, we used to have a lot more motor vehicle accident lawsuits before changes in the law toughened the criteria for filing suit. Many attorneys shifted their focus to new areas of law to compensate for the changes.

What’s clear if that you can’t stand still and be complacent. Look at where you are, what the market needs and what you need to change to move ahead.

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Tags: change, new products, new services, product development
Posted in Business skills, National Speakers Association, Personal injury, Trial lawyer skills | No Comments »

Emergency Medicine On Board

January 11th, 2010

I was sleeping on a flight to Brazil when my husband woke me up and told me a passenger needed medical attention. I walked to the back of the plane where a middle age Brazilian man was holding his chest. Through an interpreter, I found out he had chest pain. He looked pale and frightened; his pulse was rapid.

Giving medical care on an airplane

I asked the flight attendant if she could give him oxygen. She produced an oxygen tank and mask; there was nothing else I could do. The ambulance met the plane in Sao Paulo and he vanished from my life.

Be sure to fly with any medication you might need on a an emergency basis- nitroglycerin, inhalers, and so on. The story below made me think of my Brazilian experience. She discusses the medical and legal aspects of rendering care on a plane.

One physician learns firsthand that you are never really off-duty: An emergency on a flight teaches a young doctor that she’s never off duty by Laura Syndman MD

I met Brent after he was dead.

Neighboring passengers later told me that he took one bite of his sandwich and then his head dropped back. It wasn’t until 10 minutes later, when his wife tried unsuccessfully to wake him, that anybody realized anything was wrong.

I was sitting in Business Class with my parents – a trip to France to celebrate my near-completion of my Intern year in Internal Medicine (just 2 weeks of night float still to go). About 15 minutes after passengers were allowed to unbuckle their seatbelts, a flight attendant ran to the front of the plane, grabbed an AED and raced back down the aisle to Coach.

I was sitting across the aisle from my father, who had 30+ years of medical experience under his belt in comparison to my 11.5 months. “Should we go back there?” I asked, but my father said they would call for a doctor if they needed one.

I decided to check it out anyway.

Behind the curtain was a scene I will never forget: a man lying in the aisle with his feet towards the front of the plane, one flight attendant doing mouth-to-mouth, one doing chest compressions and a third attaching the AED pads. I tapped the last flight attendant on the shoulder, “Do you need help? I’m a doctor.”

“We’re fine,” he said, which surprised me. I wasn’t expecting that. Granted, I was in baggy pants, sneakers and a hooded sweatshirt, but was it protocol to decline help from a physician in a medical emergency aboard an aircraft?

Is the Government Interested in Medical Error? by Carol Armenti JD MA

January 6th, 2010

There is little question that government interest in medical error is economic rather than benevolent for even the legislative language of medical malpractice speaks, not to the injuries caused to the patient, but to the government’s budget. When the New Jersey Legislature enacted “The Patients First Act,” ironically, it spoke not to the rights of the patients, but to medical malpractice insurance. “The State’s healthcare system and its residents’ access to healthcare providers are threatened by a dramatic escalation in medical malpractice liability insurance premiums, which is creating a crisis of affordability in the purchase of necessary liability for our healthcare providers. . .” 1

Apparently the New Jersey Legislature found the appropriate response to escalating premiums was not to prevent harm but to reform tort liability. The Legislature took the position that tort reform ensures “that healthcare services continue to be available and accessible to residents of the State and to enhance patient safety at healthcare facilities.” 2

New Jersey is not alone in passage of tort reform legislation, which responds to patients suffering medical harm by increasing the burden on plaintiffs’ bar, thereby protecting physicians from suit. While obvious financial self-preservation motivates much of the tort reform rhetoric instigated by healthcare providers and insurers, patient advocates who sometimes speak the language of tort reform may be motivated by other self-interests.

With a myopia driven by the personal pain of the patient, or the patient’s family members, patient advocates lobby for reforms which will promote emotional healing. Advocates may attempt to teach physicians to feign sympathy in exchange for release-exacted transparency by assuaging their hearts. Transparency rarely requires additional quid pro quo. In such scenarios medical error may be admitted and specious regrets conveyed, but no commitment to prevent further occurrence of the medical error results. See how a medical malpractice suit can make a difference at http://t8mzr.th8.us

What do you think? Is the government really interested in saving lives?

1. N.J.S.A. 2A:53A-38(b).
2. 13. N.J.S.A. 2A:53A-38(f).

Taken from “Preventing Healthcare-Acquired Conditions Means Never Having to Say You’re Sorry” by Carol Ann Armenti, MA, JD in Patricia Iyer and Barbara Levin, (Editors), Medical Legal Aspects of Medical Records, Second Edition, in press. The second edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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Tags: CMS never events, healthcare acquired conditions, medical errors
Posted in CMS never events, Tort reform, Trial lawyer skills, medical errors | No Comments »

Medical-Legal Topics

Writing Tips

Tips for Writing by Joan Pate

The Language Patrol by Pat Iyer

Why Doctors Should Not Testify to Nursing Standards of Care by Pat Iyer

Why inexperienced people make mistakes

Managing Change and Uncertainty supplied by Natalie Gahrmann

First Impressions by Pat Iyer

A Model for Understanding Product Development by Pat Iyer

Emergency Medicine On Board

Is the Government Interested in Medical Error? by Carol Armenti JD MA

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