The Patient Protection and Affordable Care Act of 29010, also known as healthcare reform, will extend medical coverage of millions of Americans. This presents an expanded opportunity for physicians to collaborate with nurse practitioners in offices and hospitals. Nurse practitioners work in many settings, including offices, nursing homes, clinics, and hospitals. Study after study shows that patients enjoy interacting with nurse practitioners and have a high level of satisfaction with their services.

The National Practitioner Data bank reports increasing numbers of claims against nurse practitioners, and we have seen that trend in our firm as well. Med League receives an increasing number of calls from attorneys requesting expert witness nurse practitioners for cases involving office-based nurse practitioners. It is common for our clients to tell us that they assumed the patient was seen by a physician, but when they examined the medical records in detail, they determined that the critical office visit was handled by a nurse practitioner.

Nurse practitioners are qualified to diagnose and treat most common illnesses either independently or under the supervision of a physician. Although nurse practitioners work under the supervision of the physicians in the practice, the degree of supervision is loosely defined and varies from setting to setting. They are held to the standard of care of the reasonably prudent nurse practitioner.

The issues that arise, in our experience, and result in liability center around failure to diagnose. The usual allegation is that the nurse practitioner missed some critical symptom that resulted in a delay in diagnosis. For example, we’ve supplied nurse practitioner expert witnesses for cases involving alleged failure to detect signs of an impending MI or stroke, or misdiagnosing a lesion.

The advanced practice role of the nurse practitioner brings increased liability. In a medical practice with a rapid throughput (large number of patients seen per hour), the risks are high.

Obtain more information about the liability of nurse practitioners by reading Patricia Goode RN, ANP/FNP’s chapter, “Nurse Practitioner Liability Issues”, in the fourth edition of Nursing Malpractice, edited by Patricia Iyer, Barbara Levin, Kathleen Ashton and Victoria Powell and published this year in 2011.

Patricia Iyer MSN RN LNCC is president of Med League Support Services, Inc.

It is common for nurses to approach us wanting to be expert witnesses for Med League. This is what we look for in an expert.

Knowledge: We look for a person with a deep knowledge or the subject matter. Someone with hands-on knowledge will understand the nuances of care. Recently, we called an expert to ask about her knowledge of a particular drug. She said, “I have not given it, but I could become familiar with it.” We did not refer her to the attorney for this case, but we found a person who had conducted research about the drug, written about it and given it to patients.

Skill: The demanding role of being an expert witness requires highly attuned communication skills. We reject people who have typos on their CVs. Typos on CVs grate on us like chalk on chalkboards. That attention to details is so crucial in analyzing a medical malpractice case. One word on one page of a medical record can change the entire complexion of a case. The ability to think on your feet, to be persuasive, and to be analytical can make all the difference in a case. The ability to master writing, as evidenced by being published and crafting effective reports, is also essential.

Experience: It takes more than book knowledge to understand how the healthcare system runs. We look for people with years of experience in a clinical specialty. Recently, one of our experts turned down taking a case but said she had a colleague who had similar background. When we looked at her CV, she had less than 9 months of experience in her role and clinical area. She may become a great expert in the future, but she is too green to function as an expert witness now.

Training and education: College courses teach nurses to think in a different way than do associate and diploma programs. The exposure to liberal arts courses and the emphasis on writing papers stimulates the thought processes of a college student. We prefer an expert with an advanced degree, but a person with a masters fresh out of college with no hands on experience is not going to be as credible as an expert with an bachelors degree in nursing and 20 years of experience in the field. Ongoing on the job education sharpens the expert witness’s knowledge. Certification in a specialty area adds credibility. The studying that is needed to become board certified deepens an expert’s knowledge base.

“Both education and experience are necessary in life, though formal education gives one a head start that is necessary to succeed in future endeavors.” Vicki Lachman PhD, APRN, FAAN

Finally, the ideal expert is a lifelong learner. Health care changes rapidly. Experts slip behind without ongoing education. Your case demands a highly qualified person. Contact us for your expert witness needs.

1. Failing to include a medical analysis and recommendations in your report. The inexperienced legal nurse consulting may be so focused on the chronology that he/she may forget to include the analysis of the findings. Yes, this has actually happened! Providing the attorney with the chronology without an analysis and recommendations will not result in a repeat customer. Do not lose focus on the purpose of the report. What is your client asking you to do? A paralegal skilled at reading medical records may be able to create a chronology, but a legal nurse consultant uses medical knowledge to see beyond the facts of the case and to help the attorney understand the implications of the details.
2. Not asking enough questions. Who is your client: an attorney, risk management department, or insurance carrier? Is this a plaintiff or defense case? Is this a personal injury or a medical malpractice claim? I have seen beautifully written reports making a great case for the plaintiff when the client is actually representing the defendant. If you aren’t sure who your client is representing you need to ask. The plaintiff attorney represents the patient but there are many attorneys working on the defense side. These attorneys may represent the physician, nurses, pharmacists, or equipment manufacturing company, for example. If a plaintiff’s case has progressed into the discovery phase it is helpful to ask how the opposing counsel is defending the case. You can then assist the attorney to build a stronger plaintiff case. Always keep your client’s needs in mind.
3. Focusing on the wrong issues. When in doubt, go back to the basics. Clinical nurses know to focus on the ABC (airway, breathing, and circulation) in the event of an emergency. Legal nurse consultants must always be sure that the four basic elements of negligence are present when performing a case review. For example, newer LNCs (aka ‘newbies’) may so fixed on the blatant breaches in standards of care in a fall case that they fail to recognize there are minimal damages representing no real dollar amount. Always ensure there are breaches in the standards of care as well as damages. In cases with limited damages you may want to have a conversation with the attorney to determine whether there are enough damages to justify moving forward with litigation.
4. Failing to thoroughly review and edit your report. This is your work product and therefore it is representative of you. If your report contains misspelled words, inaccurate information, does not follow a reasonable sequence of events, or it does not look or sound professional it is not likely that the attorney will use your services in the future. Take a step back away from your report once you are finished before coming back to proofread and edit the report. Do not rely on solely on spell check to catch your errors.
5. Failing to interpret critical medical issues and define medical terms. Referencing laboratory data and medical terminology without defining the terms or explaining the significance is not helpful to the attorney. If the patient died from cardiac arrest in the presence of severe hyperkalemia you must explain the correlation between these two findings. Too often inexperienced legal nurse consultants write their material as if the reader was a medical professional, not a legal professional. Worse yet, they may write a report as if they were charting in a medical record. Be sure your client can understand your report and utilize it throughout litigation.

Angie Duke-Haynes, RN is President of Premier Medical Legal Consulting, LLC, co-owner of Legal Nurse Consulting Institute, LLC and co-presenter of an all new webinar on polishing your writing skills

To learn more about record reviews and how to WOW your clients check out this information about an all new webinar on how to polish your writing skills.

By Pat Iyer
Learn more about report writing by signing up for Polish Your Writing Skills Webinar for Legal Nurse Consultants on May 5 and May 12. Details at www.patiyer.com.

• When you don’t hold a degree, attorneys from the opposing camp are definitely going to bring out the fact that you didn’t go to college and because of this, your “expertise” is questionable.
• A formal degree trains you to think critically, understand research, and have exposure to a wide variety of patients. You will use this knowledge to be credible on the witness stand, to stand up under tough questioning and cross examination from attorneys, and stick to your guns and avoid getting confused no matter how much the opposing attorney tries to throw you off track.
• Registered Nurses who hold a BSN or MSN degree are perceived to know more about nursing and so perceived as credible witnesses who are knowledgeable in their field of expertise.
• Four years of college (or more) provide you with an experience that is irreplaceable in terms of boosting your skills and enhancing your knowledge; you’re more confident and sure about yourself when you’re a graduate, and this attitude comes across as credibility and positivity on the witness stand.
Many RNs go back to school to earn their BSN or Masters Degree in order to further their careers, so if you’re considering a jump to the legal nurse consulting field, a degree bolsters your chances of professional success. If you cannot take time off work to go back to school on a full time basis, consider online options that are accredited and reputable. They’re good alternatives when traditional degrees are not possible and when you’re a working professional.

By-line:
This guest post is contributed by Bobbie Walker, she writes on the topic of BSN Degrees. She welcomes your comments at her email id: bobbiew862[@]gmail[.]com.

Wrong site wrong patient surgery-inexcusable medical error

“Everyone was under the assumption that when the so-called universal protocol was implemented in 2004, it would lead to a decrease in these ‘never events,’ ” said study lead author Philip F. Stahel, MD, PhD, director of the Dept. of Orthopedic Surgery at the Denver Health Medical Center. “Not only did they not decrease, they increased. In the first few years, the universal protocol did not prevent these never events from happening.” Read more

Who are the surgeons at biggest risk for performing wrong patient or wrong site surgery? Orthopedic/pediatric, general surgery and neurosurgeons. Not surprisingly, they are a bit defensive about the results of this study.

How do you prevent wrong patient and wrong site surgery? Simple: follow the protocol step by step.

How does this happen, you ask? The Joint Commission looked at the risk factors in its Sentinel Event Alert in August 1998. One factor is production pressure. Move the patient in, operate, move her out, clean the room, move in the next patient. Emergency surgeries are high risk, as well patients with unusual physical characteristic, including morbid obesity or physical deformity. Staff working with unusual equipment or patients having multiple surgeons and procedures are at increased risk.

What can operating room staff do to stop this inexcusable medical error?
1. Correctly identify the patient. One of Med League’s operating room nursing experts worked on a case of a childless woman who got someone else’s tubal ligation. It is notoriously difficult to reverse a tubal ligation. No one identified her before starting surgery.
2. Ask an awake and alert patient to identify the surgical site. My mother carried a sign into the operating room before her right lung wedge resection. Her sign said, “It is my right lung.” One of the OR nurses told her she was cute. She retorted, “No, cautious.” A teenager who needed a left knee surgery wrote on her right knee, “Doctor, if you are looking at this knee, don’t.”
3. Create and use a verification checklist that includes the operative consent and any imaging studies.
4. Obtain oral verification of the patient, surgical site, and procedure in the operating room. Involve everyone, including the surgeon, in the verification. One of Med League’s operating room nursing experts worked on a case which involved a failure to correct identify the site. The patient came into the operating room at change of shift. The incoming staff assumed the outgoing staff had performed the verification process. She received surgery on her right knee instead of her left.
5. Expect to not get paid for surgery performed on the wrong patient or site. CMS and private payors will no longer pay for these errors.
6. Administrators, do not tolerate surgeons who want to rush people through the last and most important safety check in the OR. Leadership is top down. There can be no tolerance for shortcuts.
7. Get out your checkbook. These cases are inexcusable and will not happen if people follow the protocols designed to protect the patient.
Read more about why healthcare providers do not follow the rules part one and part two.
This is an overview of a recent article in New England Journal of Medicine about the factors that led a hand surgeon to operate on the wrong site.
Pat Iyer is president of Med League.

In the past, nurse practitioners’ liability was limited because they functioned under the direct authority of a physician. Thus, their involvement in a liability claim was typically secondary to the primary claim against the physician. The view of the advanced nurse practitioner as a primary target of litigation shifted as federal, state, and regulatory agencies legislated increasing levels of autonomy for the NP as an independent healthcare provider. All levels of regulatory, judicial, and credentialing agencies continue to struggle with identifying areas of overlapping responsibilities between advanced practice nursing and medicine.

The types of claims that bring attorneys to our office in search of a nurse practitioner nursing expert witness usually relate to failure to diagnose, failure to treat, or improper treatment. We have heard of physicians dropping their professional liability insurance in favor of allowing the nurse practitioner to carry coverage, which is usually much less expensive than the policies physicians carry. We see a strong trend towards bringing NPs into suits. The discovery process includes review of practice guidelines, job descriptions, and other documents related to the functioning of the nurse practitioner. The advanced practice nurse is increasingly being held accountable for following the standards of care.

Modified from Patricia Goode, MSN RN CRNP, “Nurse Practitioner Liability Issues” in Patricia Iyer, Barbara Levin, Kathleen Ashton, and Victoria Powell, Nursing Malpractice, Fourth Edition, Lawyers and Judges Publishing Company

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

Films are crucial in failure to diagnose cases

The liability of a failure to diagnose or delay in diagnosis medical malpractice case often rests on the information revealed by a diagnostic test. Both defense and plaintiff attorneys and their experts will be interested in what the test showed. Computerized axial tomography (CT) scans and magnetic resonance imaging (MRI) are usually stored in digital form. Obtaining those scans on a CD-ROM disk provides significant flexibility, especially when more than one expert will be reviewing the images. Plain radiographs (x-ray films) are becoming more commonly available in digital form. Where diagnostic images can be obtained on disk, they should be. It is more efficient to copy and mail a CD-ROM than to package and send large and ungainly packages of films, much less to send those films from one expert to another. Such files are usually provided with an integrated viewing program, such as those based on the Digital Imaging and Communications in Medicine (DICOM [TM]) standard. If not, a number of viewers are available as “freeware” for download from the internet.

Mammograms are most often available only on film, and copies are usually not suitable for expert review due to degradation in image quality. Original mammogram films should be obtained early in the evaluation and handled carefully, as they are often key to claims of delayed diagnosis of breast cancer.

Obtaining diagnostic fetal ultrasound images may present a challenge. Copies are not likely to be of suitable quality for expert review, and providers will sometimes vigorously resist attempts to obtain the original paper images, including opposing motions for pretrial discovery to require their production. It is sometimes possible to obtain digital copies of the original images. Although this can be costly, it is probably less so than engaging in extended motion practice, or paying an expert to go to the potential defendant’s facility to examine the original documents. Cases have been won and lost on the quality and interpretation of diagnostic tests. Be sure to make every effort to safeguard original films. Experts must be instructed on methods of returning films to the appropriate location. Sadly, cases have been won and lost on misplaced films.

Modified from Peter Berge, JD, MPA, PA “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, March 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

Medical records on CD- a mixed blessing

Records are obtained by plaintiff’s counsel prior to filing a medical malpractice suit. Ordering an extract of the medical record (typically containing information such as the admitting history and physical examination, discharge summary and laboratory results) is rarely appropriate in medical malpractice cases. Normally, complete records should be requested.

I was recently asked by a client why I prefer to read paper records over records that have been scanned. The attorney’s perception was that he would save money if he supplied a disk with medical records. He did save money- on the shipping costs. The decision of whether or not to request records in digital format, such as scanned records on CD-ROM (if available), is based in part on the degree of sophistication of the records. Typically, medical records are simply optically scanned and stored in a portable document format (PDF) image file. As such, the reviewer cannot search for text, and must page through each screen to find the desired parts of the chart. If the file is large, and is not numbered and indexed as to content and location, it can be cumbersome to work with and review. Some reviewers find it easier to print out and work with a paper copy, which allows flagging and annotation; this results in a standard paper record. This is particularly true when records are voluminous. Everyone’s definition of voluminous may be slightly different, but to me, voluminous records fill a copy paper box.

Of course, charts scanned on disk require very little storage space (until they are printed), are easily reproduced by copying the disk, and may provide individual files that can be sent by e-mail or transported using a memory stick.

If the scanned records happen to be indexed, allowing the reviewer to jump from section to section (e.g., progress notes to laboratory results, medication records to operative reports), then the digital format is extremely convenient for review. But scanning a batch of unorganized records is often a waste of time. Remember, it is more economical to present the reviewer, whether that person is an expert, a consultant, or an attorney, with information that is organized in a logical way.

Modified from Peter Berge, JD, MPA, PA. “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.