Nurse Accepted by NJ Judge to Explain Medical Records

A New Jersey Superior Court Judge ruled that a plaintiff’s attorney could present the testimony of a nurse as one who could summarize and explain extensive and highly technical records which were apt to cause serious confusion in the jury room. (See Heinzerling, 359 NJ Super 1 Appellate Division.) The judge denied a defense in limine motion to exclude the testimony of the registered nurse, Audrey Berry, to testify about the information she extracted from the medical records of the patient and to explain it to the jury in more understandable terms.¹ The plaintiff attorney was Gerald Stockman of Stockman and Mikulski in Lawrenceville, NJ. This role is the use of the nursing expert as an expert witness who summarizes medical records and explains the symptoms, diagnoses, and treatment rendered to the plaintiff. The expert fact witness can testify about the pain and suffering documented in the medical records of an individual injured as a result of personal injury, medical malpractice, products liability, toxic torts, workers’ compensation and so on.

Why use a nurse?
In addition to a nurse testifying about liability or to prepare a life care plan, a nursing expert is also useful for preparing a summary of the plaintiff’s medical records. Instead of bringing in a parade of treating physicians or other experts, the attorney can retain a nursing expert fact witness who can review and summarize the medical records and present them in their entirety. The attorney’s purpose is to provide the jury with a clear, concise, understandable accounting of the events in the medical records in order to persuade the jury to accept the attorney’s depiction of the damages. This same type of analysis can be performed for a defense attorney to refute claims of excessive pain and suffering not supported by the medical records.

In the New Jersey case, the judge found that the nurse’s singular presentation was an efficient and less costly alternative and was “also apt to be more cogent than piecemeal accounts from each doctor.”1 Physicians tend to concentrate on explanations of specific medical treatments and procedures and minimize pain and suffering. Unlike a nurse, a physician makes brief periodic visits to a patient’s bedside. They are rarely at the bedside for an extended amount of time, do not perform all of the painful procedures that nurses do, and do not share the same holistic perspective of nurses. A nursing expert fact witness, who is a legal nurse consultant, is more likely to visualize and present a broader, more comprehensive, and a more empathetic view of the events described in the medical records. Legal nurse consultants have expertise in both the legal and medical/nursing fields. This dual expertise makes them excellent choices to fulfill this testifying role.

Legal basis
Rule 1006 of the Federal Rules of Evidence permits the use of summaries. The rule provides that when there are voluminous writings, recordings or photographs which cannot be conveniently examined in court, that a chart, summary or calculation may be presented. The originals must be made available for examination or copying by the opposing party and the judge may order their production in court.²

Use of Federal Rule 1006 summaries
The assessment of pain and suffering sustained as a result of negligence is important in initially evaluating a potential new case and for presenting these damages to a jury. Both plaintiff and defense attorneys need to understand the injured person’s damages in order to evaluate the worth of the case. Medical records generated both before and after the injury may be analyzed to determine if the results of the alleged negligence produced a demonstrable change in the patient’s life and if the patient experienced pain and suffering prior to death. Careful analysis of medical documentation can establish whether an individual had a level of awareness of pain or “conscious pain and suffering“.

Read about the effectiveness of Jane Heron’s presentation to an Ohio jury. Download the article from the Cleveland Academy of Trial Attorneys here. 1006 Summary Witness

The summary provides the attorney with a comprehensive overview of the contents of the medical record, with a specific focus on the problems the patient experienced. The report of the expert fact witness is also useful for the liability witnesses in the case, who may use it to refresh their recollection of the medical events when preparing for deposition or trial. The summary may reduce the need and cost of the liability experts to perform a complete review of all the medical records.

Format for the report
The summary of the medical record can follow several formats. The content, format and length of the report should be based on the amount of medical documentation available and the seriousness of the injuries. Lengthy, detailed reports may be warranted in a case in which the plaintiff dies after a lingering illness lasting months, but not necessary in a case with minimal, nonpermanent injuries.

The expert witness’s assignment is to summarize the records and explain details of medical treatment that would not ordinarily be understood by laypeople. The expert fact witness should refrain from speculating about what the plaintiff would have been thinking. Drawing on medical training and experience, the expert is able to make conclusions about sensations associated with medical procedures. For example, nursing expert fact witnesses know that certain procedures cause pain, such as injections and debridements, wet to dry dressing changes, and that other procedures cause noxious sensations. The expert fact witness uses this information in analyzing records. When selecting such an expert, look for the person who has excellent oral and written communication skills, the ability to be analytical and well organized, and to convey complex material in a clear manner.

References

Portions of this article were extracted from the chapter, “The Expert Fact Witness,” in Medical Legal Aspects of Pain and Suffering, Tucson: Lawyers and Judges Publishing Company, 2003.

Med League offers analysis of medical records for pain and suffering. Contact us to obtain a sample report and more information.

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