By Timothy D. Lange, JD
© 2007 Kentucky Academy of Trial Attorneys
Medicine is a vast field. The practice of injury law requires a significant understanding of medicine relating to the injuries and health of the client. The reality can be, however, that the medicine involved in some cases fills textbooks. This can present a formidable challenge for us as attorneys. Three years of law school may seem like barely enough preparation for a bar exam. Meaningful instruction in medicine, as case specific as it often is, is generally not within our legal education. This highly specialized knowledge must be gained elsewhere. When complex medical and legal issues mesh, expert assistance is available. A legal nurse consultant may be an excellent addition to the injury legal team.
The LNC is a licensed, registered nurse who performs a critical analysis of clinical and administrative nursing practice, healthcare facts and issues and their outcomes for the legal profession, healthcare professions, consumers of healthcare and legal services, and others. This person is a nurse who essentially attains additional education in law as it relates to medicine. This education can be attained on the job, or with formal training and certification (see related story in this issue).
Credentialing LNCs varies. Many private and public technical schools, colleges and universities offer coursework and credentialing in the field of legal nurse consulting. The American Bar Association (ABA) may provide an endorsement that can help counsel in the decision of whether to engage a particular expert in this field: the ABA ’s Standing Committee on Paralegals provides approval of LNC educational programs. The ABAnotes that the admission requirements, length of time to complete, and other course requirements can vary greatly among programs. All credentials may not be created equally.
Many LNCs work in nursing until something sparks their interest and involvement with the legal field. This practical experience in healthcare is brought with them to their role in law.
The particular nursing experience of the expert is highly relevant to decisions relating to the function this expert may play. If the nurse is to be used as an expert witness in a nursing malpractice case, experience in the relevant field of nursing is a very important consideration.
Getting the expert’s testimony to a jury is only one hurdle. Having the jury understand and accept that testimony is the next and higher hurdle. No LNC can reasonably be expected to be the proper witness to testify as to standards of care in all nursing or breach of duty issues, or be familiar with the intricacies of every medical matter. Experience counts.
How can an LNC help?
We need to understand and teach both the law and the medicine of the case to our audience, whether that be the client, insurance adjustor, opposing counsel, judge or ultimately, jury. An LNC can serve as an affordable and helpful bridge between the legal and medical fields.
Recent jury verdicts against counsel unsuccessfully prosecuting medical negligence cases, and subsequently found to have claimed negligence against a healthcare provider without a proper medical-legal foundation, serve as a reminder that lawyers who think they can know and do everything may not always be correct. The LNC can help to avoid this exposure.
Good case screening is invaluable — no one wants to lose the resources associated with bringing a case based on bad science. The LNC should be able to identify issues for counsel, competently conduct medical research, suggest further specialized research or consultation and also assist in the location and selection of any expert witnesses.
While this list is in no way exhaustive, nurse consultants can also assist with:
• Medical record reviews and
• Medical billing documentation and summaries
•Medical literature research and summaries
• Record tampering, screening
• Identification of standard of care practices
• Monitoring an IME
• Drafting questions for deposition or other examination
• Drafting of technical medical discovery
• Deposition and discovery review
• Identification of evidence of breach of duty
• Witness preparation
• Preparation of exhibits
• Identification of pertinent medical fact witnesses
• Medical records management
• Assessment of damage and causation issues.
As always when engaging an expert, be advised to seek references from colleagues.
The practical experience of an LNC, coupled with whatever other credentials the expert may present specific to the legal world, should weigh in the selection of the right person for the case.
Request references and background information on any expert. Find out if the expert under consideration has testimony that has ever been excluded.
Confirm the pertinent schedule of fees and document terms concerning payment before engagement.
Clearly convey your case timetables with respect to discovery and trial and leave ample time for the preparation of this expert for his or her discovery and trial depositions.
Experts can make or break your case. Choose wisely! •
Timothy D. Lange is a personal injury lawyer in Louisville, Ky., firstname.lastname@example.org. This article first appeared in The Advocate, the magazine of the Kentucky Academy of Trial Attorneys.
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