Court: Caution advised if billing paralegal work as nurse consultant work;

Here, nurse consultants $150; paralegals $85; lawyers $340

By Rose Clifford, editor

© 2009 The Medical-Legal News

• This case gives an interesting peek into what courts consider reasonable fees, and the importance of accurate billing.
— RC

Be careful how you bill, and document. A nurse consultant doing “paralegal” work may come up short.
In a court-cost recovery case, where a mother was seeking reimbursement from the government for her costs associated with a claim under the National Childhood Vaccine Injury Act, the court took issue with a nurse consultant doing too much work (and thus billing more money) that otherwise was paralegal in nature.
The court concluded that a nurse consultant should be paid $150 per hour, a paralegal $85 per hour and an attorney anywhere from $275 to $350 per hour in a Vaccine Act case. The court noted that Vaccine Act cases should be “more simple,” at least for the lawyer, and would not allow a higher rate for attorney fees.
In the case, plaintiff and mother Dana Imlay was seeking a reimbursement of court costs associated with an action she brought over aplastic anemia her daughter allegedly contracted from a hepatitis B vaccination. The mother’s lawyer used Wendy Jenvey, a nurse consultant, for some work.
The court and the parties had no issue with paying Jenvey $150 per hour, but disputed that all the work she did on the case was nurse consultant work. The court said: “Rather, the parties dispute whether Ms. Jenvey should be paid as a nurse consultant at $150 per hour or as a paralegal at $85 per hour.”
The court concluded: “A detailed review of Jenvey’s time entries indicates that 23.3 hours required a nursing background. For the remaining 42.7 hours, Jenvey functioned as a paralegal.”
Therefore, about two-thirds of Jenvey’s hours were reduced in price.
To give a guideline as to what is paralegal versus nurse consultant in nature, the court said: “Some examples of paralegal functions include conducting an inventory of medical records and filing medical records with the court, printing, scanning and binding medical records and articles, e-mailing various staff members to generate checks, obtaining medical records from various providers, reviewing the legal docket for court deadlines, and other clerical and administrative tasks.”
As to what a nurse consultant should do the court said: “Some entries could have required Jenvey’s nurse consultant background, such as a conference with [the lawyer] on the status of the case, but without any information provided indicating that Jenvey was using her nursing background, Jenvey’s nurse consultant rate cannot be justified for these particular entries.”
Thus, good documentation is important, too.
Of Jenvey’s total billed 66 hours, she was only paid $150 for 23.3 of them. The rest were reduced to $85 per hour.
As a footnote, the court found the attorneys representing the mother to be compensable at $340 per hour. The court used the following attorney fee spread in evidence:
• Medical malpractice defense work, $170-$230 per hour (retained by insurance company).
• Medical malpractice defense work, $250-$350 (retained by doctor, individually).
• Professional discipline $275-$350, (referred to other attorneys).
• FTCA (Federal Torts Claims Act) work $500, (calculated).
The case was Barber v. Secretary of HHS, WL 4145653 (Fed.Cl., 2008).

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