Interview: Surviving caps —Texas nurse consultant shares strategies, move from med mal

by • May 1, 2007 • UncategorizedComments Off on Interview: Surviving caps —Texas nurse consultant shares strategies, move from med mal1624

© The Medical-Legal News 2007

By Dan Clifford, publisher

Jennifer Fougerousse is a legal nurse consultant in League City, Texas. Texas is a tort caps state, and Fougerousse shared her experiences of working and landing cases in that environment.

Q.: What clinical nursing background do you have?

A.: I have a BSN, and worked in a hospital for four years before going into LNC work.

Q.: How long did you work as an LNC before Texas adopted caps?

A.: Four years.

Q.: Were you doing pretty well as an LNC during that time?

A.: Yes, I was so busy that I had two nurses working for me.

Q.: And then what happened?

A.: Proposition 12 passed, which put caps on noneconomic damages in med mal cases, limiting awards to $250,000. The number of new cases filed dropped drastically, though I worked on cases filed through late 2004 — cases had to be filed before the caps deadline. So I was super-busy through 2005. Then business dropped off.

In addition to Proposition 12, car insurance companies limited the amount they would pay out for reviews. I was doing defense work, and this was a large part of my business. The attorneys [now] would only get a flat fee, so they had to be really choosy about the cases they sent out for review, and then let their paralegals handle the others. This development was just a thing the companies did, but not a law. I worked for State Farm and Allstate, and both started “caps.” I used to see tons of that stuff, but it fell off the radar. But about 80 percent of my business was med mal. I had to do like the attorneys did, and shift my focus.

Q.: So what did you do?

A.: I decided to go back to a hospital part-time, because I had certain bills I had to pay. I went back to the hospital two days a week, and then work started coming back in.

Q.: Why did work start coming back in?

A.: Because that’s just Murphy’s law, I guess.

Q.: What was the new work?

A.: The attorneys had to refocus, too. A lot of chemical exposure cases came in — against chemical plants. There also was a lot of workers’ compensation work in the railroad industry. And I did merit reviews for wrongful death cases.

Q.: What are the chemical cases?

A.: They are lawsuits — patients get cancer and die or become very ill. In these cases I look for lung issues, and previous social habits. The plaintiffs may have worked for several different chemical plants, so you are looking for causation. They are not class action suits.

Q.: Are you as busy as before?

A.: No, but I am not sure I want to be that busy, as I would have to quit the hospital again. But I am definitely busy enough.

Q.: Are you busy enough that you could quit the hospital?

A.: Because business goes up and down so much, I am not sure that I would want to risk that.

Q.: Any other cases?

A.: I am doing product cases such as seatbelt failure and car defects. It’s amazing —these attorneys are pretty resourceful. Somebody takes something away from them and they will go find something else.

Q.: Do you think Texas will find the caps unconstitutional? Several states have.

A.: There is a lot of debate about it. I think the caps do keep a lot of frivolous cases out of court, but at the same time they keep cases that truly have merit from ever being filed. Attorneys — you can’t blame them — want to make money. I think attorneys who do bring frivolous cases should be fined. I think there are cases that should be taken, but attorneys are not willing to risk their time and money for little payout.

Q.: What do you miss?

A.: I reviewed a lot of cases for merit. It was an education thing. I was there to help attorneys realize that just because there was a problem with something, it was not always malpractice.

Q.: So what are other LNCs doing in Texas?

A.: I don’t know. I am not a part of any of the organizations because I don’t have time. I have had nurses criticize me because of my fees. They tell me I can get $125 per hour, but they are helping me, because when I walk into a law firm behind them, with a lot of experience and references, and I am charging $85 per hour, who do you think they are going to choose?

Q.: So how do you get cases?

A.: I have tried marketing and newsletters and all sorts of things, but the best way is word of mouth. That is the only thing that has truly worked for me. My daughter dances and I met an attorney through a dance class, for instance.

Q.: How did you first get cases?

A.: Through my husband. He was born and raised in Galveston and knew the attorneys in Galveston. Those were my huge clients for years. It was very easy for me. • 

Jennifer Fougerousse is a legal nurse consultant in Texas,

Many chemical plants are located in the Houston area, such as BASF, Phillips, Chevron, Valero and Motiva. Port Arthur, near Houston, is considered one of the U.S’s dirtiest areas. The Veolia company recently was awarded a contract to burn wastewater from nerve gas VX.

— AP

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