By Dorajane Apuna, BSN, MA, RN, CCM, CNLCP
© 2007 The Medical-Legal News
When a nurse first starts into the litigation field, it is often difficult for a him or her to understand the importance of the written document to the practice.
The nurse practice, overall, has emphasized the necessity of writing brief entries in the medical document, not volumes of material. Often a chart entry is shortened to the point of only three of four words that describe the event. The medical records are full of abbreviations and symbols.
So how is the transition made from the medical field to giving the attorneys (customers) what they need in their cases?
When one is first asked to complete or compile a report (a report should never be written unless specifically asked for), the first clarification should be what the attorney actually is wanting in the report. The expert’s report is a crucial part of any litigation and the expert should remember that an expert report “lives forever.”
If you are stating opinions, then it is important that you submit your opinions with clarity, exactness and confidence. Now is not the time to expound with words such as “I think,” or “I believe.” Remember, even though you are assured that the opposing side will never see your report, it is important to assume that anything you write in a report can be discovered.
When an attorney retains your services as an expert, it is very important to ask the following questions:
1. What is the case about?
2. Am I the right fit, or have the right expertise to give an opinion in this case?
3. Is a report required?
4. What type of report is needed and what issues should be covered in the report?
5. What type of formatting is expected?
6. What are the factual assumptions for a baseline?
7. Is this report to be a work product or a document for the legal procedings?
8. Do I have any other questions concerning the case now that I have heard the summary?
Is this report meant for the attorney’s personal use in formulating trial tactics or is it meant to be shared with the jury or judge?
There are no clear cut laws governing discoverability. There are some guidelines presented in the Federal Rules of Civil Prodedure, Rule 26. This generally states that if a report is prepared, then it must be shared with the opposing party. It can be discovered through depositions, interrogatories, etc.
A specific issue that highlights the problems with discoverability was presented in a recent case concerning an attorney in Southern California, who “accidentally” obtained an opposing lawyer’s pretrial notes and used them for his own tactical advantage. The attorney to whom the notes belonged stated that he had them in a briefcase that was left in a room for a few minutes following a deposition. The notes were clearly marked “confidential work product.” Included in the notes were the attorney’s trial tactics and notes on several expert reports that he was relying on to prove his case. Then the opposing attorney used the “procured” notes to dispute some of the expert’s testimony.
He defended his actions by citing Aerojet-General Corp. v. Transport Indemnity Insurance Co., 18 Cal. App. 4th 996, wherein the 1st District of San Francisco ruled that when an attorney “accidentally” gets his hands on an opposing lawyer’s nonprivileged documents, he is duty-bound to use that information to help his client.
The attorney who “found” the notes, and his entire legal team, were disqualified from the case for having used a confidential work product, thus breaching ethical duties. The California Supreme Court justice, Ronald George, asked, “So the surprise factor is more important than the integrity of the court? Why not invoke the assistance of the court to determine whether such notes are confidential work product that can’t be used or if they’re nonprivileged material that the lucky attorney has the duty to use on his client’s behalf?”
What is legally expected in an expert report? (Based on Rule 26)
In the expert report it is important to establish your credentials and training in order to be able to give an expert opinion. This can be done through a written summary of your credentials and skills in the body of the report. Your resume should be included for more details at the end or in the appendix, as should a complete statement(s) of all opinions to be expressed, the basis and reasons for the opinions and any data or lists of research that assisted you in formulating your opinions.
If you plan on submitting exhibits or a presentation during litigation procedings, the handouts, notes or actual presentation should be included (and could be in the appendix). Also in the appendix should be a list of the expert’s publications authored and a log of previous testimony on other cases. A fee schedule also should be attached.
When the report is prepared it needs to be reviewed to ensure that the report actually properly addresses the key factual issues in the dispute, signed under penalites of perjury, and completed within the time frame that is allowed.
Checklist for writing
• Keep the sentences short. You should not have more than 15-20 words in the sentences. When reading the report out loud, do the sentences flow? Stay away from long or choppy sentences.
• Each paragraph should start with an idea, then be supported by five or six sentences. Split long paragraphs. Search for clarity and brevity.
• Headings and subheadings keep the report organized. They emphasize the particular points and make it easier for the reader to find the points in the report. These also make it easier to set up the table of contents and referred index.
• Use the magical phases when formulating your opinions such as “based upon a reasonable degree of certainty,” “based upon a reasonable degree of probability,” or “it is more likely than not.”
• In bullet form, support or justify your opinions in concise format.
• Do not use conclusions without supporting justification.
• Footnote any resources you use when formulating your opinions. In an appendix, give the supportive documentation.
• Be sure that your opinions are the opinions that you will state at the trial or hearing. If they change, give an amended report.
• Most importantly, do not give opinions outside your area of expertise. The report should use reliable and detailed methodology to keep from having a “Daubert” challenge.
References for your library
Stephen Wilbers, Keys to Great Writing, Writers Digest Books. Cincinnati, Ohio, 2000.
Donald Hall and Sven Birkerts, Writing Well, 9th ed., Addison Wessley Longman, Inc. 1997.
Richard Wydick, Plain English for Lawyers, 4th ed. Carolina Academic Press, 1998.
Steven Babitsky and James J. Mangraviti, Jr., Writing and Defending your Expert Report. Seak Inc. 2002. •
Dorajane Apuna, BSN, MA, RN, CCM, CNLCP is a nurse consultant and life care planner based in Sacramento, Calif.; firstname.lastname@example.org.
• “So, you want to know” is an ongoing column to answer your questions about crucial things important to legal nurses, life care planners, physicians and attorneys in their everyday practice. Please do not hesitate to send your questions or information needs to Case_strategies@comcast.net.