Healthcare fraud: shaking the foundations

healthcare fraud, False Claims ACt, nursing home fraud, cardiac stents fraudHealthcare fraud is big business, which costs the US Government and Americans huge dollars. There are several federal statutes that tie into making fraud a crime. These criminal statues include

  • Health care fraud
  • Theft or embezzlement in connection to health care
  • False statements relating to healthcare matters
  • Obstruction or criminal investigation of health care offense

    The False Claims Act requires the defendant to submit a claim or cause a claim to be submitted to the government that is false or fraudulent, knowing of its falsity and seeking payment from the Federal treasure. There may be damages. The penalties include a civil penalty from $5,500 to $11,000 per false claim and three times the amount of damages which the government sustained.

    Here is how nursing homes have gotten in trouble:
    The long term care provider makes payments for patient referrals. (In US ex rel Wall v. Vista Hospice Care, Inc, the court denied motion to dismiss the allegation that the hospice paid nursing home employees for patient referrals. March 2011).
    The long term care provider receives payments for referrals. (Mariner Health Care and SavaSenior Care paid $14 million to settle allegations they took kickbacks in exchange for renewing contracts with Omnicare, settled February 2010)
    Medical directors may be paid more than fair market value.

    What does the government expect of nursing homes?
    They want a partnership with Federal and State governments to detect and prevent misconduct.
    They want an ethical corporate culture.
    They expect an organization to ferret out wrongful conduct and non-compliant activity.
    They expect cooperation during investigations of an organization’s wrong doing.

    Based on handouts from Broad and Cassel, American Conference Institute, April 2011

    A few weeks ago I met a physician who told me of a fraudulent scandal at his hospital. A cardiologist was caught for performing stents on patients who were not true candidates for the procedure. He obtained a lot of money for doing the unnecessary procedures. This cardiologist was well-respected until the fraud was uncovered, and he lost his license to practice. The scandal rocked the hospital, damaged its reputation, and caused several people to leave their positions. The hospital is now for sale.

    The rippling effects of fraud and greed are far reaching. I know that as I prepare this blog post, someone is hatching a scheme to defraud or cheat or steal. If only the creativity associated with fraud was channeled into positive pathways.

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    Breaking Down the Nursing Home Chart

    nursing home chart, nursing home medical records, long term care chart, LTC chart, MDS 3.0 Nurses without long term care experience may be very hesitant to review one of these cases due to their lack of knowledge of these industry specific records. Once you understand where important information is located within these medical records you can use them to support your analysis of the matter.

    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.

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    Are you writing dangling modifiers?

    I’ve just finished writing The Manual for Writing for Fame and Fortune. Modifiers dangle if they do not seem to be related to anything in the sentence or if they are not placed near enough to the words they modify to seem attached to those words. Dangling modifiers can be adjectives, adverbs, or prepositional phrases. (1) Ensure that modifiers, particularly those expressing action, have a clear noun to modify. Ensure modifiers appear either next to or as close as possible to the word or words modified.

    Here’s something light today. These make me laugh. They are dangling and misplaced modifiers from this site:

    http://writing.wisc.edu/Handbook/CommonErrors_BestMod.html

    The best misplaced and dangling modifiers of all time
    Oozing slowly across the floor, Marvin watched the salad dressing.
    Waiting for the Moonpie, the candy machine began to hum loudly.
    Coming out of the market, the bananas fell on the pavement.
    She handed out brownies to the children stored in Tupperware.
    I smelled the oysters coming down the stairs for dinner.
    I brushed my teeth after eating with Crest Toothpaste.
    Grocery shopping at Big Star, the lettuce was fresh.
    Driving like a maniac, the deer was hit and killed.
    With his tail held high, my father led his prize poodle around the arena.
    I saw the dead dog driving down the interstate.
    Holding a bag of groceries, the roach flew out of the cabinet.
    Emitting thick black smoke from the midsection, I realized something was wrong.
    The girl was consoled by the nurse who had just taken an overdose of sleeping pills.
    I saw an accident walking down the street.
    Drinking beer at a bar, the car would not start.
    Playing pool in the living room, the radio was turned on by Jim.
    Frustrated by diagonal movement, the set was turned off.
    Mrs. Daniel sews evening gowns just for special customers with sequins stitched on them.
    Although exhausted and weary, the coach kept yelling, “Another lap!”
    She carefully studied the Picasso hanging in the art gallery with her friend.
    Having an automatic stick shift, Nancy bought the car.
    Freshly painted, Jim left the room to dry.
    He held the umbrella over Janet’s head that he got from Delta Airlines.
    He wore a straw hat on his head, which was obviously too small.
    After drinking too much, the toilet kept moving.

    (1) Franklin Covey Style Guide, Franklin Covey, 1999

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    Legal nurse consultants: How to lose a client in one report

    Polish your Writing Skills course, legal nurse consulting reports, Pat Iyer, Dana Jolly, Angie Duke Haynes
    Want repeat business? Here are some report “don’ts”.

    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.

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    Psychiatrist Beaten By Patient at Hospital

    traumatic brain injury, fracture orbit, violence against hospital staff, violent patients, Med League, Pat Iyer Damages
    Violence by patients against hospital staff is a growing concern. In a Virginia case, a psychiatrist was beaten by a patient and suffered a traumatic brain injury, a fractured eye socket, concussion and skull fracture. He is now depressed, has post traumatic stress disorder and vision impairment which prevents him from working.

    The injury
    The August 2011 Trial Magazine write up explains that the patient twice approached the doctor while he was employed at Virginia Beach Psychiatric Center. During the first encounter, the patient made statements to the physician before he was escorted away. In the second encounter, the patient formed his hand into the shape of a gun and pressed it against the doctor’s head and said “bang.”

    The patient approached the doctor at the nursing station, and beat him.

    The standard of care issues raised in this case related to the inadequate security provided. Although violent incidents occurred every few days at the facility, it retained only one part-time security guard to patrol the parking lot.

    In Shetty v. Psychiatric Solutions, Inc., the jury awarded 5.35 million. Post trial motions are pending. Case site: No. CL09-1873 (Virginia, Norfolk City Cir. Nov 22, 2010.)

    Evaluation of these kinds of cases is based on determining if an event was foreseeable. Dr. Shetty’s attorneys argued that the patient had threatening behavior, a documented history of violence and was involuntarily committed to the facility. He was placed on the lowest watch level.

    Standard of care
    Violence against staff may take place anywhere in the hospital. Emergency and psychiatric nurses are particularly sensitized to this issue, as they are more common targets. As this case shows, the facility has an obligation to protect its staff by accurately identifying the risk of violence (to the extent possible) and providing safeguards for staff.

    Med League nurses have assisted attorneys with psychiatric cases including evaluating the events in light of the standards of care, providing the relevant standards for the time frame involved, creating a chronology of events and or supplying psychiatric healthcare experts.

    Pat Iyer is president of Med League. She is very glad she does not work in a psychiatric hospital.

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    Legal Nurse Consultants: Tips for Improving Writing Skills

    writing skills, polish your writing skills, improve writingToday, people are using very different writing styles, not just what you learned in school from your English teacher. Informal writing has changed. Text messaging, in particular, has caused us to think in terms of brevity of communication. But the real risk in brevity is that you are going to miss things and you will not be able to fully convey what you want to say, particularly within a business environment.

    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.

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    Cataract Surgery – the Easy Way

    cataract surgery, cataracts, Fentanyl, VersedLast month I had cataract surgery on my left eye. I returned to the hospital this month to have the other eye operated on. It was an entirely different experience. My husband and I got up at 4:30 AM to make it to the hospital waiting room at the very early time of 6:15 AM. “You’ll be his first patient”, I was told. We immediately noticed the woman who shuffled in with a walker and her husband. Her eyelids were cherry red. We also noticed the young mother and her baby, who looked to be about 2 months old. The baby was the eye patient. The mother and grandmother of the baby anxiously watched as the child was taken away for surgery. In fact, I watched every patient taken away for surgery while I waited in the holding room.

    Marking the site
    As he did last time, my surgeon again checked the dot pasted over my eye to be operated on, and wrote his initials on my forehead to mark the spot. I noticed that he politely greeted the staff, and that they responded to him with pleasantries. (It is very important for your doctor to get along with the staff.)

    You felt pain?
    When the cheerful anesthesiologist stood at the bottom of my stretcher, he shot off a series of rapid fire questions. I could tell he asked the same questions over and over – “any medical problems, do you smoke, do you drink?” Then he said, “I promise you will feel no pain and no awareness of what is happening.” “Oh, really?” I told him. “I felt pain last time.” He looked puzzled. “You did? There is no knife or needle.” I told him I don’t know what caused the pain but I did feel pain at the end and asked the doctor for pain relievers, which he would not give to me. Then the anesthesiologist looked uncomfortable and reminded me I would not have to have cataract surgery again as both eyes would have been operated on.

    The wait
    The patient with the cherry red eyelids went off to the operating room before I did, and I suspect her surgery was more involved than mine; she had the same surgeon I did. When the nurse anesthetist and operating room nurse came to get me, the nurse anesthetist immediately gave me a full 3 cc syringe of Versed (sedation) as she was wheeling my stretcher down the hall to the operating room. That seemed to be the height of efficiency. But then we waited and waited in the operating room for my surgeon to finish up with the cherry red eyelids lady. I floated in a pleasant Versed-induced haze, dimly aware of the voices of the operating room nurse and nurse anesthetist. At one point, one of them said, “She’s asleep.” “No, I am not, I can hear everything you are saying.” It got quiet then.

    Hiccoughs
    While still waiting for the surgeon, I developed the hiccoughs. “My surgeon is not going to like this”, I told them. I imagined him trying to operate on my eye while I was hiccoughing. Ever the helpful patient, I remembered that Thorazine can be given for hiccoughs and asked the nurse anesthetist if she had any. “No, we don’t have anything like that here.” The next thing I knew, I woke up. My wrists were tied to the stretcher (me, in wrist restraints!) The surgeon said, “I’m taking the clamps and mask off. We’re done.” Wow! I got to sleep through the surgery.

    Fentanyl: my new best friend
    The nurse anesthetist told me she gave me Fentanyl, a fast acting pain reliever. Fentanyl took away awareness of surgery. I saw the first surgery taking place; I did not need to see the second one too. My curiosity was satisfied. My husband helped me walk to the car, as Fentanyl made it hard for me to walk a straight line. Fentanyl also made me see double cars on the highway headed home. Fentanyl allowed me to take a nap when I got home. Fentanyl is now my new best friend.

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    Are You Writing in Geek?

    geek, clear medical legal writing, improving medical legal writing, legal nurse consultant reportsImagine you are an attorney who has hired a legal nurse consultant to summarize and analyze complex obstetrical medical records. You don’t understand medical terminology and you know that the information in the record is crucial to understanding the case. You give the records to the nurse with the expectation that you will receive a coherent, analytical summary of the chart, a description of the standards of care, and an analysis of the deviations, if any, from the standard of care.

    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.

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    Why autopsies are on the decline

    My father, left, on my wedding day 1970

    Today I was wrapping Christmas gifts and thinking about autopsies. These two activities don’t seem to go together, do they? One reason I am thinking about death and autopsies at Christmas time because my father died on December 25, 1977. The attending physician would not release his body until we made a decision on permitting him to order an autopsy.

    Let me back up. Another reason I am thinking about autopsies is that I also read an article today about the drastic decline in autopsies. Called, “Without autopsies, hospitals bury their mistakes”, it identifies the trend of a drastic decline in autopsies, from 50% of hospital deaths 50 years ago to 5% now. Why such a drop? Lack of reimbursement for the procedure, no Joint Commission mandate to do them, and fear by hospitals and doctors that an autopsy will reveal medical malpractice are reasons that are cited.

    What are the medical consequences of not getting an autopsy? For one, the medical team does not learn from their mistakes, or even that a mistake has occurred. The feedback loop is gone. They don’t learn about the effectiveness of the treatment they ordered. They don’t learn how diseases progress.

    What are the medical legal consequences of not getting an autopsy? We in the legal world know that proving causation can be infinitely more difficult without an autopsy. Several times a year we ask attorneys, “Was there an autopsy?” And a few times a year we have discussions with attorneys about the effectiveness of digging up a body and performing an autopsy several months after death. Will an autopsy, even if done, provide the answers about the cause of death? Not always. Earlier this month a pathologist told me four causes of death that will not show up on autopsy.

    When I was a student nurse, I saw autopsies being done. When I edited chapters on autopsy medical records and forensic medical records for Medical Legal Aspects of Medical Records, I helped the authors sort through after death photographs to include as figures in the chapters. As legal nurse consultants, we routinely read autopsy reports and sometimes see photographs included with records that flow through our office. Legal nurse consultants can slip into the mask that allows us to dispassionately read these reports and look at the photographs.

    But in 1977, when I sat in a conference room at Atlantic City Medical Center with my father’s attending physician on the phone, I had only my student nursing experience watching autopsies. My 56-year-old father developed back pain around Thanksgiving, and saw a chiropractor. A week later, when the back pain was still strong, he woke up one day and could not urinate and could not move his legs. At the hospital, he was diagnosed with metastatic cancer that had metastasized to his spine and lung. The primary site was unknown. Four short weeks later, he was dead. The tumor in his lungs suffocated him. When my grandfather walked into his son’s hospital room on Christmas Day, he found him dead. We felt like we had been hit by a truck. There was no time to prepare.

    My father’s attending physician argued that we should agree to the autopsy because the primary site was unknown. My grandfather said, “No.” He passed the phone to my husband, who also said, “No autopsy.” Then I took charge of the phone call. I told the attending physician that I had seen autopsies done, and that my father would not have wanted that done to his body. The attending physician continued to argue with me, telling me that cancer was one of the leading causes of death. “There is nothing you can say that will change our minds”, I told him. In a situation in which we felt out of control, refusing the autopsy gave us some tiny sense of being in charge. The lack of the autopsy did not change of his children’s lives in terms of routine healthcare or monitoring.

    However, if someone I loved died today and I was suspicious about the cause of death, I know I would have to fight to get the autopsy done, pay for it out of my pocket, and use the knowledge to understand what occurred.

    There is one other point I want to make about my father’s death. After he and my mother got divorced, he lived with his parents. His mother died of malignant melanoma in 1976. My grandfather was a controlling man who did not want to see his son date or travel. A week before my father was diagnosed with back pain, he told me that after his father died, he would travel, date, and really enjoy his life. He never got those opportunities, and his father lived for five more years after his son’s death.

    When my father died, I learned at the age of 27 that life is short, and the only day you can count on is today. By dying at age 56, my father missed out on seeing so much of life and having family experiences – grandchildren and great grandchildren. Don’t make the mistake of thinking you have endless time. Life is now.

    Pat Iyer MSN RN LNCC is president of Med League and the mother of two sons, one of whom her father was not alive to meet. Her firstborn son was 2 years old when her father died.

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    Expert Witnesses: Supporting Your Nursing Opinion

    long term care, nursing home records, long term care expert witness, nursing home expert witness, pat iyer, angie duke haynes, dana jolly, report writing, polish your writing skillsAs an independent legal nurse consultant, with over a decade of experience who has reviewed dozens of expert cases and thousands of “behind the scenes” cases and provided deposition and trial testimony, I believe that one of the most important duties of a LNC is to provide the attorney all the evidence used to support your opinions. Communicating this evidence can be accomplished in various ways. Here are some examples of nursing home cases in which I used case specific information, other than nursing or physician notes to support my opinions.

    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.

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