May/June 2008

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LNCs more frequently a part of the judicial system

By Dan Clifford, publisher
Comments by Rosemary McGeady, JD, MD

• The Gist: LNCs are appearing in court more often than in the past, and nurses increasingly are allowed greater leeway in standard of care and even causation testimony.

Legal Nurse Consultants are involved in litigation — and mostly in a good way.

Research into readily available case law found that the term “legal nurse consultant” appears more commonly than in the past. A search for “legal nurse consultant” yielded about 20 cases where the phrase had been used in a court opinion. Half of the cases were from 2006 or later. Another five were from 2000 or later; three were from the late 90s and the earliest reference was to a case in 1993. Clearly, LNCs are making inroads into litigation and their use is mushrooming.

In the cases, no LNC had ever been sued for professional malpractice related to medical judgment, but one LNC was associated with a suit where a failure to redact a name from medical records was the basis of the action. At least another three cases involved fact patterns where an LNC could have had legal exposure.

Most of the cases involved LNCs who were testifying as experts, though the LNCs’ clinical credentials and expertise were the basis for their testimony, not their status as LNCs. This distinction is important.
Some highlights:

LNCs as witnesses

A recent case of note about LNCs working as expert witnesses is Vela v. State of Texas, 209 S.W.3d 172 (Tex. Crim. App. 2006)…

6th in a series — Universal healthcare: The best we can do?

By E. Patrick Moores, JD

OPINION: Now that the U.S. presidential election campaign is heating up, the candidates are presenting various premises of what they intend to do about healthcare. Unfortunately, most leave out the details. At best, we hear something like a model of the Canadian or a European healthcare system, in which a public health system controlled by the government is open to everyone.

I recently had lunch with a professional colleague who told me his daughter was returning from her home in Canada to temporarily live with him and his wife. The reason the daughter was having to leave her husband, a professional athlete in a major city in Canada, is that she is experiencing a difficult pregnancy, and the government-run medical system could not provide her a doctor to oversee her level of care during her last few weeks of pregnancy and delivery.
Because the situation…

CE article: Fall-related litigation growing 

By Frances W. Sills, RN, MSN, ARNP

“Humpty Dumpty sat on a wall; Humpty Dumpty had a great fall; All the Kings horses and all the Kings men couldn’t put Humpty together again.”

As the number of people 65 years and older increases, so does the number of them who fall. Falling and its resulting injuries are an important public health problem for older adults and other ages if they are at risk for falling.

The National Safety Council estimates that individuals over 65 have the highest mortality rate from injuries resulting from a fall. Among older adults, injuries cause more deaths than either pneumonia or diabetes. Falls are accounting for about one-half of the deaths due to injury in the older adult.

Approximately 30% of all community-dwelling elderly, and 50% of nursing home residents 65 and older, fall each year.

Disparate groups come together to rank doctors

Physician groups and insurance companies have formed an alliance to amicably rank doctors, according to The New York Times on April 1.

Insurance companies have been ranking doctors for some time, but critics have charged that the companies focus too much on costs and not enough on care quality.

Groups such as the AMA and the American College of Surgeons have teamed with health insurers such as Aetna, Cigna, UnitedHealth and WellPoint. The trade group America’s Health Insurance Plans has given its blessing to the pact, as have the AARP, the AFL-CIO and the Leapfrog Group. 

One goal of the ranking system is to bring uniformity to the disjunct system now in place. The project is called the Patient Charter for Physician Performance Measurement, Reporting and Tiering Programs. •

Shank case shakes up, sheds light on insurance subrogation clauses

• The Gist: This case emphasizes why record reviewers, life care planners and attorneys must thoroughly assess damages and the victim’s future financial and medical needs. 

Deborah Shank, 52, lost much of her memory, and her ability to communicate or walk, after a collision with a large truck eight years ago, but she won $700,000 against the trucking company.

After attorney fees and expenses, she netted $417,477 that went into a trust fund. The fund eventually fell to $270,000 and her former employer, Wal-Mart, wanted her to pay back the $470,000 that it paid on her behalf for her medical costs under its health plan.

In early April, after a storm of criticism from the public, Wal-Mart decided not to seek reimbursement, or subrogation, from Shank, according to the St. Louis Post-Dispatch and Newscom…

Type of consent may divide medical battery from negligence

• The Gist: Do not overlook consent forms and other preliminary paperwork in case facts. 

By Dan Clifford, publisher

A recent court ruling in California helps clear up the difference between negligence and medical battery when consent is at issue. An appeals court concluded that “no consent” will equate with battery, while lack of “informed consent” will sound in negligence.

In Saxena v. Goffney, 159 Cal. App. 4th 316 (2008), the survivors of Rajesh Saxen sued Dr. Willie Goffney for his insistence on a debridement and Apligraf procedure on an open wound in spite of Saxen’s failing health and plaintiffs’ begging of Goffney not to perform the procedure. A day after the debridement, Saxen died.The plaintiffs brought an action for wrongful death, negligence…

Compliance education is important to program success

• The Gist: Attorneys and consultants will want to look at a provider’s compliance systems when defending or litigating cases involving healthcare organization wrongdoing.

By Angela L. Tobias, RN, BSN, MSHSA, LNCC

Compliance education keeps everyone informed concerning a healthcare organization’s compliance program and its efforts to detect healthcare waste, fraud and abuse. Such education communicates key compliance policies and is a key part of a successful compliance program. It starts with…

Recent wrongs: records theft, rape, a fatal benign tumor and the FCA mis-pleaded

The Feburary issue of the Legal Eagle Eye Newsletter ( contained four cases of note.

In a Texas case a patient, who was in a rush for a second opinion from another facility, stole his medical chart and fled. He was not willing to wait a day for copies. The court noted that while patients have the right to the access and control of their data under HIPAA, the chart itself belongs to the hospital.

In a Washington state case, a male nurse raped a developmentally-challenged female patient. The patient was awarded $2.5 million by the state. The nurse manager reportedly had warned management of the nurse’s instability, and the nurse had a documented track record of unprofessional behavior.

In a case where a 64-year-old patient had a benign rectal tumor removed, a nasogastic tube was misplaced into the lungs and left there for three days. The patient developed pneumonia, which led to cough, which led to rupture of the rectal wound, which led to the need for a second surgery, which resulted in death of the patient. $2 million was awarded in this Texas case.

A nurse in Tennessee sued a hospital under the False Claims Act alleging compromised patient-care issues such as using non-licensed personnel for license-level duties. The court rejected applying the FCA in the case, reasoning that someone’s opinion that care was below a professional level is not actionable under the FCA. The court said such care was not “worthless care” as in cases where care simply was not done and then billed for. •

Physicians’ screaming at staff goes out of style

By Patricia Iyer, MSN, RN, LNCC

The physician who screams at the nurses’ station may soon be exhibiting a behavior of the past. Increasingly, healthcare facilities and staff are identifying the impact of disruptive or abusive behavior on communication, patient safety, employee morale and turnover. This behavior is called “lateral or horizontal violence.” The American Nurses Association recently released a position paper on the subject. Incidents of verbal abuse of nurses, typically by physicians, are unfortunately well known. According to a VHA (Volunteer Hospitals of America) survey, an estimated 2-3% of physicians behaved badly toward their nurse colleagues. Specific triggers often precipitated events, such as:

• nurses calling the physician during evenings or weekends to question or clarify orders;

• orders carried out incorrectly or in an untimely manner;

• unexpected delays in care;

• difficulties with procedures or process flow, and;

• changes in patient condition…

The “411” on California prison reform: Is your state next? Litigation to increase

• The Gist: The number of medical lawsuits and compliance issues in the prison system is expected to increase.

By Jane Grametbaur, RN, CCHP, CLNC

In the early 1990s a young insulin-dependant diabetic on dialysis expressed apprehension about his pending transfer to a California State Prison. His fear was justified. He died four days after his arrival in the “big house.”

The death of this young man came as no surprise to correctional medical staff practicing in the state. California prisons have long had a reputation for substandard, inadequate care. This reputation has not improved over the past decade; in fact, the situation has exploded into a crisis of unbelievable proportions. In 2005 the 33 prisons in the state were placed under control of a receiver by District Court Judge Thelton E. Henderson.

The seminal event which began the long and tortuous journey to receivership was the filing of a class action lawsuit by 10 California state prison inmates…

Patient controlled analgesia puts pain under patients’ control, may shift liability

• The Gist: In PCA cases, look for device malfunction or operator error. The latter is more often associated with serious adverse outcomes.

By Margaret Wacker, RN, PhD, CLNC
for The Medical-Legal News

Patient controlled analgesia (PCA) has become the standard of care for the treatment of postoperative pain.

This modality of opioid administration offers many advantages: 1) patients are able to administer their own analgesia and adjust the dose to achieve desired pain relief; 2) intermittent dosing by nursing staff is eliminated; and 3) PCA maintains a relatively constant plasma level of the drug. PCA can be administered by intravenous, subcutaneous or epidural routes.

Safe PCA use demands proper patient selection, education, assessment and monitoring. A number of factors need to be considered when ascertaining if a patient is an appropriate candidate for PCA.

Of primary importance is the capability of the patient…

Legal liability of LNCs is limited; attorney likely a shield

By Beth Zorn
Co-moderator, LNCExchange

OPINION: For those of us who work in-house, the law firm is vicariously liable for our conduct and work product. If one of our clients were to bring a “legal malpractice” claim (i.e. the statute of limitations expired on our watch) against our firm arising in whole or part due to the actions of one of our LNCs, our firm’s legal malpractice insurance policy would kick in.

Nurses who work independently for lawyers cannot rely on traditional “nursing malpractice” insurance policies because once a nurse gets completely outside the realm of the delivery of healthcare, we are not practicing nursing as defined by state law — we are using our medical knowledge in a business setting.

Thus, most independent LNCs seem to opt for “errors and omissions” policies just like other consultants. NSO is an example of an insurance carrier…

Better to see double: Setting up a dual monitor is easy

By Paul Martino

Seeing double could be the sign of a serious medical condition and I urge you to seek immediate medical attention, unless this only happens while you are working at your computer! In that case, you have a dual monitor computer system and this could be a sign of a serious increase in productivity.

The need to have multiple programs open…

Daubert in English for medical-legal witnesses: How courts will view you

By Marcel B. Matley
for The Medical-Legal News

I am not an attorney, nor a medical person, and do not offer legal or medical advice. The goal here is to offer a practical guide in preparing expert evidence for federal and state courts following federal rules. The illustrations offered are the inventions of a layperson and are to be taken in a forgiving spirit.


Expert testimony must be:

• from a properly qualified witness;

• relevant to a fact at issue;

• reliable;

• helpful to the jury; and

• not in violation of any rule, such as not being unnecessarily cumulative of other evidence.

The Rules of Evidence are designed to ensure that these requirements are established before a jury has to sit through an expert’s testimony. In the case Daubert vs. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court was most concerned with reliability of expert testimony. Please bear in mind that what “reliability” means in a scientific laboratory or in medical care of patients is not exactly the same as what “reliability” means in a court of law. This discussion only considers how to prove the latter.

The questions of the witness’s qualifications and the testimony’s reliability are the primary responsibility of the witness. The other three listed above are the primary responsibility of the attorney calling the witness. Thus, we will look briefly at how to establish qualifications and reliability.

Qualifications of the witness

The expert witness must be both generally qualified in the particular discipline and specifically qualified in the precise problem the jury has to decide. Suppose a family is suing a hospital’s emergency…

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