One of the most mystifying parts of the nursing home chart is the Minimum Data Set (MDS). The MDS is a standardized instrument used to assess all nursing home patients. It is a comprehensive assessment of the resident’s physical and functional abilities and cognitive status and includes indicators of delirium, fall history, diagnoses, wounds, nutritional status, restraint use, continence status, and more. The nursing and therapy notes and other documentation should be reviewed to ensure the information in the MDS is accurate.

Depending on the timeframe for the care being reviewed, the chart may contain an MDS that may be either version 2.0 or 3.0. After extensive review, the Federal government released the 3.0 version on October 1, 2010. The Resident Assessment Instrument (RAI) now consists of the Minimum Data Set (MDS) 3.0, the Care Area Assessment (CAA) Process, and the RAI Utilization Guidelines. The MDS 3.0 was refined to include many changes including, but not limited to, a focus on pain assessment and discharge planning, when assessments should occur, some changes in coding, and the use of Care Area Triggers (CATs) rather than Resident Assessment Protocol (RAPs). The MDS 3.0 focuses on resident participation through multiple interviews. The “look back period”, the time frame the MDS assessment is based upon, is seven (7) days for all areas unless otherwise noted on the assessment.

There are 20 CAA’s that can be triggered by the MDS responses. The identified triggers are used as a guideline for development of the individualized plan of care. The staff may override the trigger or decide to proceed and create a plan of care. For example, nutritional status may be triggered due to recent weight loss. However, the staff may override the trigger by indicating a recent history of bilateral above the knee amputations, thus justifying the recent weight loss or less than ideal body weight status. The CAA’s should be reviewed to ensure that all potential risks have been appropriately triggered and addressed in the plan of care.

While the Plan of Care (POC) is not paperwork specific to long term care, it is a very critical document and must be closely reviewed to ensure every risk unique to that resident has been addressed and that the POC is individualized to the specific needs of that resident. The care plan is a dynamic tool that should be updated as the needs of the resident change. For example, if the resident is at risk for falls and the goal indicates the resident will have no falls with injury within the next 90 days and that resident does indeed fall and sustained injury, the plan of care must be updated. You should expect to see new interventions to prevent falls.

Therapy documentation is critical to long term care cases. When a resident is involved in PT, OT or ST you will find frequent documentation which can be crucial, especially when there are few nursing and physician notes. Therapy notes will usually describe the resident’s functional ability, level of pain, subjective statements, cognitive status, and safety recommendations. Always be sure to review the therapy records thoroughly and compare these assessments to the nursing notes, physician notes, MDS, and care plan. Likewise, important information may be found in the social services notes as documentation regarding discharge plans, family concerns, and social history is likely recorded in this section.

Don’t allow your lack of familiarity with long term care records hold you back from an interesting case review. Your knowledge of the records outlined above will provide you the ability to thoroughly understand the residents’ needs and determine whether they were met. This information is just a brief overview of a few of the records. However, part of being successful is self educating and knowing how to find the information you need. Identifying a long term care nurse that you can call with questions as needed might just provide you with the added confidence needed to say “Yes” when asked to review a nursing home case. To learn more about record reviews and how to WOW your clients check out this information on how to polish your writing skills.

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.

1. Striking the wrong key
Relying on the computer to function as the only proof reader of your LNC report is sure to miss a few common typographical or grammatical errors. An example I frequently see is the wrong word being typed, i.e. “form” when “from” should appear. A lack of attention to detail is guaranteed to have your client second guessing his request to have you review the critical evidence in his case.

2. Blind side your client
Do not include any references: source document, Bates numbers, literature citations. You don’t want your client to easily find the critical document or the article that supports the case theory. Attorneys really do want to search through all those medical records themselves.

3. One and done
Just provide the facts and your conclusion. Don’t include recommendations for the next steps the client should take. After all, the report speaks for itself. Attorneys, being familiar with the provision of health care, can easily identify just the specialty needed for an expert review. All attorneys understand the difference between a diagnostic radiologist and an interventional radiologist, for example.

4. Missing the point
Make your conclusion hard to find. Place it anywhere but the beginning of your report. Attorneys love to read the whole report before they learn what your conclusions are. Placing your conclusion at the beginning of your report with emphasis formatting would make the attorney less inclined to read your entire report, something to be avoided at all times.

5. TMI*
When in doubt, include it. It is important the attorney is made aware of all potential breaches in the nursing standard of care regardless of the relevance to the allegations.

* too much information

Dana Jolly, BSN, RN, LNCC is president of Jolly Consulting, LLC, a national legal nurse consultancy. She is a published author and frequent lecturer on legal nurse and clinical topics. To learn more about what you can do to present a polished, accurate report, join Angie Duke-Haynes, Pat Iyer, and Dana Jolly on February 1 and 8, 2012 for a webinar course, Polish Your Writing Skills.

Getting exposed to poor writing is a big source of frustration for many people who work in professional fields. And there are errors and risks to people and to systems if we can’t communicate well in terms of what we know or instructions that we need to give other people.

The ability to write fluently in an easily understood manner is not going to go out of style. There are people who see typos and get focused on the typos and say, “Oh wait a minute, let me look at that word, it doesn’t look right. Oh, she spelled that wrong.” Poor writing makes us take a few seconds away what we are reading in order to filter that through the editor in our minds. When writing is done beautifully, you don’t notice it; when it’s done poorly it jumps out and it distracts you from the message.

Tips for Improving Your Writing Skills
1. Do a lot of reading. Sit with a book either in paper form or on an electronic reader like a Kindle or Ipad. Notice how the author forms sentences. Do the words flow? Exposure to good writing of people who are fluent in the language improves your skills. Conversely, reading poorly written material is painful.
2. Write a report or essay. Set your material aside for a day and then proofread and edit it. Look for places where you can compress the sentences, improve word flow, and improve clarity.
3. Ask someone with good writing skills to be a copyeditor to help you improve. A copyeditor improves word flow, in addition to proofreading. A copyeditor will take your material and rearrange it so that it flows better. This person improves the language, grammar, and word usage.
4. Study how the copyeditor changed your material. Incorporate those changes into your writing style.
5. Take a writing course or an English writing composition course at a local community college or local college, or audit the course if you don’t want to take it as a matriculated student.
6. It is important to remember you can always improve. Learn from others’ writing or critiques of your writing. Develop a thick skin and graciously accept criticism so you can learn from it.
7. Read books on writing. One of my favorites is Eats Shoots and Leaves by Lynne Truss, a truly funny book about grammar. Also read The Language of Success by Tom Sant or Plain Style: Techniques for Simple, Concise, Emphatic Business Writing by Richard Lauchman.

Patricia Iyer MSN RN LNCC has been a legal nurse consultant for 24 years. She is president of Med League Support Services, Inc. and Patricia Iyer Associates. She is the author or editor of over 125 books, chapters, articles case studies, and online courses. Along with Dana Jolly and Angela Duke Haynes, she is presenting a webinar course called Polish Your Writing Skills on February 1 and 8, 2012. See www.patiyer.com for details.

The legal nurse consultant submits his report, and you read this:

Assess fetus in distress via continuous electronic fetal monitoring (EFM). Evaluate FMR tracing noting:
a. Uterine activity
1. Tachystole – hyperstimulation (>5 UCs in 10 minutes or closer than q 2 minutes)
2. Polysystole – coupling, ineffective labor pattern
3. Hypertonia – palpate for uterine relaxation following contraction
4. Absence of uterine tone – uterine rupture
5. Tetanic contractions >90 seconds long or >70 mmHg in strength (IVPC)
Huh?

Geek, better known as medicalese or nurse talk, is highly technical language. It is too obscure for the intended reader, in this case, an attorney. It ignores the knowledge base of the attorney and assumes a level of understanding of medical terms and abbreviations. It can result in frustration for the attorney and loss of future work for the legal nurse consultant.

This wording comes from the website of a legal nurse consultant as a sample of work product. In this example, only one abbreviation is spelled out. The terms describing abnormal labor are not all defined, and the non-obstetrical reader is left in the dark – not what you want.

How to avoid geek
1. Write for the reader. Remember that attorneys are not healthcare personnel.
2. Avoid overestimating the knowledge of your reader. Few people are offended by simple language.
3. Spell out abbreviations the first time you use them.
4. Explain medical terms the first time you use them. Consider adding a glossary at the end of your report.
5. Simplify.
6. Do not write as if you are charting. Use full sentences.
7. Ask a non-medical person to read your redacted report before you submit it. Is the material comprehensible? If not, rewrite and edit your work until it is simplified.

Gain more valuable tips on how to improve your writing by joining Pat Iyer, Angie Duke Haynes, and Dana Jolly, three experienced legal nurse consultants, for an online course taught on February 1 and 8, 2012. You’ll learn how to improve your writing and have the chance to put your skills to the test by analyzing a long term case. Get details about Polish Your Writing Skills here.

Pat Iyer MSN RN LNCC is president of Med League Support Services, Inc, an independent consulting firm serving attorneys since 1987. She has written or proofread thousands of reports written for attorneys. She is one of the editors of Nursing Malpractice, Fourth Edition, and the chief editor of Principles and Practices of Legal Nurse Consulting, Second Edition and the editor, coeditor or author of more than 125 chapters, books, articles, online courses, or case studies. She works hard to avoid writing in geek.

1. Physical and Occupational Therapy Notes: My first trial testimony involved a nursing home patient who became trapped in the side rails and was strangulated. As a plaintiff expert, I opined that the patient was not an appropriate candidate for side rails from the very beginning. The nursing staff documented that she used the side rails to assist in turning and positioning. The nursing and nursing assistant documentation was inconsistent about the resident’s ability to turn in the bed. The nurses and aides described her on a continuum from completely independent to requiring extensive assistance to being totally dependent.

In this case, I relied heavily on the physical and occupational therapy notes as they treated the resident five times weekly for a period of months prior to her death. This documentation consistently showed the resident was unable to use the side rails to her benefit; she required total assistance to turn and position in bed. After reviewing page after page of therapy notes in the courtroom, the judge asked how many more examples were left. When I indicated we were just getting started, the judge stated he had seen enough evidence. This case resulted in a plaintiff verdict.

2. Flow Sheets: In one case, I heavily relied on the ADL Flow Sheets as they consistently showed the resident was eating less than 50% of most meals and refusing supplements without appropriate nutritional intervention. In another case, a neurological assessment flow sheet clearly documented a resident’s change in condition over a 12-hour period after a fall including unequal pupils, left-sided weakness, and a severe headache. Yet, despite these obvious changes, there were no nursing interventions until the patient was found obtunded early the next morning. He expired soon after arriving to the hospital.

3. Facility Policies: Sometimes supporting evidence is not found within the medical record itself. The information needed to support your opinion may be found in the facility’s policies and procedures or other internal documentation tools. I once had a choking case in which a patient who was prescribed a mechanical soft diet choked on cooked carrots and asphyxiated. The autopsy report was very specific; it described the size of each piece of food removed from the pharynx. Each piece measured approximately ¾ inch x ¾ inch. The facility’s policy for mechanical soft diets was equally specific, noting foods must be cooked and chopped no larger than ½ inch x ½ inch. Bingo! That case quickly setttled out of court.

4. 24 Hour Reports: Likewise, defense cases have been quickly put to rest due to good nursing documentation. In one case the nursing staff was cleared of negligence by their documentation of specific information communicated to the physician on the 24 hour report.

5. Incident Reports: Incident reports can be obtained by the plaintiff attorney in certain cases. When the incident report is referenced in the medical records it opens the door to retrieving the document. In a frequent fall case, my review of the incident reports revealed the batteries in the chair/bed alarm were dead on one occasion; twice the unit was turned off; and in yet another fall the alarm was not in use. This helped to prove negligence of the nursing staff.

The above described examples are from nursing home cases. The upcoming webinar, Polishing Your Writing Skills, involves an actual nursing home case study. During this webinar, participants will review this interesting case which involves a young gentleman who aspirated and died. We will discuss the critical and supporting information found with in the medical record and will show you how to document the evidence to support your opinion(s) so that the attorney receives a concise report that clearly shows where the supporting evidence can be found in the chart and why that evidence is important to the case. A well written report that includes supporting evidence will be used by the attorney throughout the litigation process.

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.

Modified from Patrica Iyer and Deborah D’Andrea, “Working with LNCs” in Patricia Iyer, Barbara Levin, Kathleen Ashton and Victoria Powell (Editors), Nursing Malpractice, 4th edition, 2011

* Was the LNC able to provide the desired services?
* Were the services provided in a timely manner?
* Was the quality of the work product what I expected it would be or was it better?
* Did the LNC identify something in the case I would have completely missed?
* Did the LNC provide me with something extra I did not expect to receive?
* Was the LNC able to readily communicate opinions and provide material that made it easier for me to understand the case?
* Did the LNC adhere to the opinions expressed and explain the rationale behind them?
* Was the LNC able to anticipate the strategies raised by the other side of the case?
* Was the LNC knowledgeable about national, federal, and state nursing regulations?
* Did the LNC tell me the strengths as well as the weaknesses of the case?
* If the LNC was asked to provide literature, did it address the applicable standards of care at the time of the incident? Was the literature complete? If I asked the LNC to summarize the literature, was the summary easy to follow?
* Does the LNC have a good understanding of the legal system?
* Is the LNC easy to work with?
* Are the invoices prepared by the LNC well documented with explanations of the services provided?
* Have there been any surprises in the invoices?
* Have the invoices fairly represented the services provided and the hours spent on the file?
* Has the LNC asked me for comments on the work product and made changes to suit my needs?
* Would I use this LNC again?
* Would I recommend this LNC to others?

Do you have another question to add to this list? Send us a question and join the conversation.

From Patricia Iyer and Deborah D’Andrea, “Working with Legal Nurse Consultants”, in Patricia Iyer, Barbara Levin, Kathleen Ashton and Victoria Powell, Nursing Malpractice, 4th edition, 2011

The 27 LNCs had 0-9 years of experience. The perceptions of 16 attorneys who had 1-29 years of experience were also elicited.

Each person was asked to review a list of functions and indicate if each function was an activity which a paralegal or LNC (or both) could perform.

Despite wide differences in experience and perspectives, a consensus emerged among all of the groups. The most commonly identified legal nurse consultant activities were:
1. Identify medical management issues
2. Identify medical issues not addressed or explained in the records
3. Identify malingerers
4. Point out potential medical complications of injuries
5. Identify medical malpractice

The most common activities attributed to the role of the paralegal were:
1. Obtain medical records
2. Identify costs causally related to the accident
3. Organize medical records
4. Summarize medical records
5. Identify missing records

Paralegals were more easily able to identify functions of their own profession than they were able to define the role of the legal nurse consultant, and vice versa. Experienced paralegals and the attorneys identified more functions of the LNC than did less experienced paralegals. One of the conclusions of this data was that rather than being in competition with each other, LNC and paralegals perform important functions that complement each other. For example, analysis of key medical issues by a LNC cannot occur without the appropriate retrieval and organization of medical records by a paralegal. The identification of costs associated with an injury can be competently performed by a paralegal, allowing the legal nurse consultant to use medical expertise to focus on the clinical issues in the case.

LNCs and paralegals complement each other’s skills. As part of the legal team, they can work effectively together. The paralegal is best used for job responsibilities that draw on his or her legal background as an adjunct for the attorney. The LNC is best used for responsibilities that draw on the nurse’s expertise with medical issues.

Extracted from Pat Iyer and Deborah D’Andrea, “Working with Legal Nurse Consultants”, in Iyer, Levin, Ashton and Powell, Nursing Malpractice, Fourth Edition, 2011. Get your copy here.

The LNC is a licensed registered nurse. He or she performs a critical analysis of clinical and administrative practice, healthcare facts and issues, and their outcomes. Services are provided to the legal profession, healthcare professions, consumers of healthcare and legal services, and others as appropriate. The LNC’s services are rooted in his or her expertise as a nurse. The American Association of Legal Nurse Consultants (AALNC) has defined legal nurse consulting as a specialty practice of the nursing profession, a position endorsed by the American Nurses Association in 2006.

Nurses providing legal nurse consulting can be found as employees in many settings, including in the plaintiff or defense firm, the risk manager’s office, federal and state agencies, and the insurance companies. An equal number of LNCs are self-employed (called “independents”) and provide services to clients on both sides of the bar.

LNCs are not paralegals
Some role confusion exists regarding the differences in preparation and functions of a paralegal versus a LNC. By definition, paralegals and legal assistants are qualified by education, training, or work experience to perform specifically delegated substantive legal work for which a lawyer is responsible. Some legal education is typically a requirement for paralegals. Paralegals learn about general law, legal research, torts, legal writing, civil litigation, and technical litigation support. A simple explanation is that the paralegal has some education about law, and the LNC is a nurse who has developed expertise in assisting attorneys with medical issues.

Although many LNCs have acquired knowledge of the legal system through such experiences as consulting with attorneys and attending seminars, legal education is not a prerequisite for the independent practice of legal nurse consulting. Professional nursing education and healthcare experience make LNCs unique and valuable partners in legal processes.

LNCs are not usually nurse paralegals
Many attorneys, unfamiliar with the term legal nurse consultant or its abbreviation, LNC, may refer to the nurse as a “nurse paralegal”. Unless the nurse has taken a paralegal program, this term is incorrect. The correct use of the term refers to a nurse paralegal is a paralegal who is also a nurse. In contrast, a legal nurse consultant is a registered nurse who consults on healthcare issues within the legal arena. Confusion about roles arises also because in some settings legal nurse consultants perform some of the same work that legal assistants and paralegals do, particularly in small law offices.

While LNCs may acquire knowledge about legal documents, such as complaints, interrogatories, requests for production, and the like, most LNCs have no legal training and are not frequently used to draft legal documents. Their focus does not include wills, real estate transactions, and other areas of non-healthcare-related law which is a typical part of paralegal education. These tasks do not make the best use of the legal nurse consultant’s skills.

Legal education programs offered for nurses by legal assistant or paralegal education programs also cause confusion about roles. To the extent that legal education is provided to nurses by legal assistant or paralegal education programs, it should be considered separate from the education of paralegals and legal assistants because of the differences in their practice in the legal arena. AALNC’s position, therefore, is that LNC education should be developed and presented as specialty nursing curricula by nurse educators in partnership with legal educators.

Extracted from Pat Iyer and Deborah D’Andrea, “Working with Legal Nurse Consultants”, in Iyer, Levin, Ashton and Powell, Nursing Malpractice, Fourth Edition, 2011. Get your copy here.