by Vickie L. Milazzo, RN, MSN, JD

When an attorney takes on a medical-related lawsuit, the attorney is confronted with enormous volumes of medical records crammed with esoteric terminology, inexplicable shorthand and indecipherable handwriting. Yet his client's (plaintiff or defense) future depends on the attorney understanding those records and using them to support the case effectively. That's why being a Certified Legal Nurse Consultant^CM (CLNC^®) is the healthiest thing that will ever happen to your attorney-client's practice.

CLNC^®'s Pain and Suffering Analysis Spurs Record Settlement

On a sunny Virginia morning, meter maid Beverly Adams^* was severely burned over 50% of her body when her three-wheeled motorcycle turned over and caught fire. "She was making a slight turn on dry pavement," says her attorney, Rob Walker of Robert Walker and Associates, Richmond. "The vehicle was defectively designed with the driver sitting right on top of the gas tank." That arrangement almost proved lethal for Adams.

"Under Virginia law," continues Walker, "you can't sue an employer for an on-the-job injury that takes place in the course of employment. Instead, we took on the engineering firm and the foreign corporation that designed and distributed the vehicle."

According to Walker, his 42-year-old nonsmoking client sang in her church choir and was a 15-year veteran of the police force. Adams had a reputation for going by the book and writing more tickets than most of her peers. "She was the perfect plaintiff," he says.

The accident changed Adams' life completely and permanently. "In addition to her severe burns," says Walker, "she lost four fingers on one hand, lost her eyelids, ears, nose and most of her hair. She spent three months in the hospital, almost a year in rehab, and needed 32 reconstructive surgeries and other surgical procedures. For the rest of her life she'll have to use prosthetic devices and special creams for her damaged skin."

How does the attorney make sense of a year's worth of complicated medical records describing such devastating injuries? How does he even begin to grasp the pain and suffering Adams endured, much less make it real for a jury? Walker's answer is simple: He doesn't. He calls in an expert. His expert of choice was Sharon Scott, RN, CLNC.

The CLNC^® Is the Key to Understanding the Medical Issues – For the Adams case, Scott tapped both her 19 years of nursing experience and her extensive training as a CLNC^®. "I developed a detailed chronology of the case and explained all the medical procedures in lay terms," she says. "My services included indexing the records and explaining the difference between second and third degree burns. I also pulled out every recorded instance of Adam's pain and suffering and prepared a chart listing all the pain medications, sedatives, etc., she took."

Walker explains the value of Scott's CLNC^® services. "I had no idea what was being done to the plaintiff because much of it was in medical shorthand. Sharon indexed the records so we could find what we were looking for. Then on a daily basis she summarized Adams' condition, treatments, surgeries, medications and outcome." This detailed summary made it easier for Walker to answer defense interrogatories and to decide which witnesses to call.

"We were most concerned about Adams' pain and suffering," he continues. "We needed a handle on that. Sharon put all the procedures and surgeries into words we could understand. For example, debridement is just a medical term to me. Sharon explained that meant scrubbing off the dead skin. When you see how often they did that, you understand how much my client suffered."

Scott's next step was to make the actual amount of painkiller Adams received real for people. Walker explains, "Sharon tallied all the dosages for the first six weeks of treatment, then concluded by saying my client had received enough medicine to relieve the pain of 850 heart attacks or 1,700-3,400 hours of labor. That vivid picture of what Adams went through gave us an advantage over the defense attorney when we started talking about damages."

Although the case was pending in federal court, local rules required Walker and the defense to attempt a good-faith settlement. "Both sides chose mediation," he says, "and we settled in about a day. Sharon's summary made the damages so evident, we never had to discuss them. This made for a cleaner conference focused on the liability issues."

The result was a $14,000,000 settlement, at that time (2000) one of the largest out-of-court settlements ever reached for a personal injury case in Virginia. "One reason we got this settlement," Walker acknowledges, "was the understanding of the medical records Sharon gave us." An indirect result of this case was that the vehicle in which Adams nearly died has been redesigned to move the gas tank and its opening to the back.

CLNC^®s Save Attorneys Time and Money – I have a small office," Walker says. "I can't read 4,000 pages of medical records. Having the services of someone like Sharon allows me to take on complex cases that I could not handle otherwise."

Scott's status as an independent CLNC^® in private practice is an advantage for Walker. "I trust her judgment and her opinions more than I would a nurse working in my own office. An independent consultant doesn't have an ax to grind with you. If you get a case of questionable merit, Sharon will tell you not to pursue it."

Another benefit of working with a CLNC^® is cost savings. "You can lose a lot of money on cases with complex medical issues if you're not on firm ground," says Walker. "My out-of-pocket expenses on the Adams case were around $240,000. Sharon can quickly and economically identify whether you have a case, and she can cut down on your staff time going through medical records. If you're in a small or medium-sized firm and you need help indexing records or understanding complex medical issues, a CLNC^® is indispensable."

CLNC^® Serves as Plaintiff Attorney's Watchdog to Keep Defense Honest

One of the largest personal injury firms in the Pacific Northwest, Stritmatter Kessler Whelan Withey Coluccio (SKWWC), also uses CLNC^®s. "CLNC^®s are very professional and thorough," says SKWWC partner Michael E. Withey. "They're keenly appreciative of our clients' needs. I recommend them highly."

This Seattle-based firm has a nationwide practice limited to cases involving catastrophic injury and wrongful death. Their noteworthy victories include the Exxon Valdez oil-spill litigation and the record-breaking $15,000,000 wrongful death verdict against then-Philippine ruler Ferdinand Marcos and his wife Imelda.

In 1998, a notable personal injury case came Withey's way. Jeremy Lohr was injured in a chemical plant explosion in Moses Lake, Washington. The accident, in which two other workers died, was the subject of an "I Survived" article in Reader's Digest¹.

According to the Washington State Department of Labor and Industries L&I News, "A six-inch high-pressure pipe burst and workers were exposed to a toxic mix of silicon tetrachloride and trichlorosilane. An estimated 35,000 pounds of material was released."² Jani Gilbert, Washington State Department of Ecology, reports that both silicon tetrachloride and trichlorosilane can form hydrochloric acid when they come in contact with water vapor in the air. The release created about 14 tons of highly corrosive hydrochloric acid, which can burn human skin and lung tissues.³

Lohr collapsed while pulling another fallen worker to safety, according to the Reader's Digest account. The man Lohr was trying to rescue died of his injuries.

The CLNC^® Frees the Attorney to Focus on the Legal Issues – "Lohr sustained significant lung injuries," Withey says. "He requires constant antibiotic treatment and inhalants to aid his breathing. He will eventually need a lung transplant. He also sustained scarring of his corneas and suffered a loss of vision necessitating corneal transplants."

These kinds of injuries leave both physical and emotional scars requiring long-term rehabilitation. The defense hired medical experts in various disciplines to examine Lohr and evaluate the extent of his injuries and need for rehabilitation. Withey, in turn, hired Sue Burnham, RNC, CLNC to be present with Lohr during the defense medical examinations (DMEs).

"I accompanied Jeremy to four defense medical examinations," Burnham reports, "including psychiatric interviews by a doctor known to be very pro-defense, and appointments with a vocational rehabilitation specialist, a retinal specialist and an exercise physiologist. My role was to keep these doctors hired by the defense honest."

"Sue provided us with tapes and a status report regarding each exam," Withey adds. "Her presence let the defense know someone was there who knew how these exams should be handled and who could take care of the client in case anything inappropriate took place. This was very helpful, because it allowed me to focus on trial preparation instead of personally attending the examinations with Lohr." The case settled out of court in Lohr's favor for an undisclosed amount.

CLNC^® Spots Medical Negligence Where it's Least Expected

While the services of a CLNC^® can make a big difference in a catastrophic case, many attorneys don't wait for such cases to come along before engaging the services of a CLNC^®. Kenneth Phillips, a Los Angeles-based attorney known nationally as the "dog bite king," uses the services of Dale Barnes, RN, CLNC on all his cases.

After Phillips' office orders the medical records, Barnes receives and tracks them, and keeps him apprised of the status. "Because Dale has so much nursing experience," says Phillips, "she's invaluable at simply gathering the necessary records and documenting the injuries. I never worked in a hospital, so I could miss something, but she doesn't."

Dale's alertness was crucial to a complex case that Phillips describes as "everyone's worst nightmare." A woman was walking her three chow dogs, when one animal broke free and grabbed 18-month-old Ted Ferrell^* by the face as his mother was getting him out of the car. Mrs. Ferrell picked up her son and ran to the garage with the dog chasing her. She fell with Ted in her arms and shielded him with her own body against the continued attacks. Her husband heard the screaming, came out and and chased the dog away.

"Ted's injuries were quite extensive," says Barnes. "He sustained multiple puncture wounds to his face and around his eyes. Two of his upper teeth were knocked out, and his lip and mouth were injured. Most dog bite cases don't involve negligent medical care, but this one raised some red flags. In addition to explaining the injuries in detail, I was able to point out that some of the medical care was below the standard of care."

"This is a good reason for involving somebody like Dale," says Phillips. "I need someone with medical training to review my client's care. I cannot assume it's correct. And using Dale's services is less expensive than hiring a physician to review every case."

After Ted was discharged from the hospital, he was readmitted with wound infection around his right eye. A new antibiotic was prescribed, but Mr. Ferrell wasn't happy with his son's lack of improvement, so the boy was transferred to another hospital for IV antibiotic therapy. The staff at the second hospital noted that the wound was abscessed and performed surgery immediately to drain the abscess. Cultures taken during surgery showed bacteria and explained why Ted had not responded to the previous antibiotics. "The first hospital never took any bacterial cultures," says Phillips, "so the physicians were only guessing at which antibiotics might be successful."

Dale also noticed a number of other discrepancies in the records:

1. There were no home health notes in the records. This would have been helpful in assessing when the infection started.
   
2. Even though Ted's white blood cell count was still slightly elevated, there was no record of lab work on the day he was discharged from the first hospital.
   
3. No nursing notes were included from either hospital, and no speech or occupational therapy (OT) notes from one facility. Such assessments are necessary in cases involving injuries to the mouth.
   

CLNC^® Uncovers the Significant Extent of the Injuries – Phillips continues, "Dale's expertise as a CLNC^® enabled her to help me sort out all the nursing, physician and home health issues and present a clear case. I could understand the injuries, procedures and prognosis, and see where the physicians were negligent. Dale also assisted in identifying additional records I needed to obtain for a more complete review of the case."

"Ted had significant nerve damage," Barnes reports. "You could tell that by watching him try to smile. A nerve conduction study should have been ordered to confirm this observation."

"The doctor assumed the condition would resolve itself," Phillips adds, "but he should have ordered the study to guide the boy's treatment. Dale's knowledge of medical testing is so extensive that she suggested we order the study to document the existence and extent of nerve damage and to help demonstrate Ted's suffering. We could do that with subjective evidence, but the objective evidence provided by the nerve conduction study was more persuasive, and we wouldn't have had that without Dale."

Barnes' CLNC^® services are essential in Phillips' type of practice. "Most of my clients are children who have been bitten in the face and disfigured," he explains. "The parents may downplay their child's suffering to encourage the child through this horrible event and to allay their own guilt. In addition, because 75% of attacking dogs belong to a family member or friend, parents don't want to hurt the defendant in the case. The doctor may also optimistically downplay the severity of the injuries because he believes he can handle the problem. Under these circumstances, I may never learn the devastating effect on a child without an experienced, word-by-word examination of the medical record for clues such as bed-wetting, hives, stuttering, muteness, violent behavior or other signs of post-traumatic stress. Dale picks up on these clues, sometimes by talking to the plaintiff, but usually just from examining the record."

Likewise, some injuries can appear more significant than they really are. Phillips states, "A medical term may suggest something awful to me, but Dale knows enough to tell me the finding is not significant."

In Ted's case, "Dale realized the injury was more extensive than we originally thought. She saw that the doctors were focusing on one issue, but they were neglecting other serious problems. We had the opportunity to correct the situation and get the child the help he needed. The patient received better medical treatment because of what Dale observed."

Phillips notes several additional benefits of using Dale's CLNC^® services on all his cases:

1. "My case is stronger and cleaner, and my presentation is more efficient and effective because of Dale's great summary of the medical information."
   
2. "From the outset the full nature and extent of the injury is on the table, enabling us to put our best foot forward with the insurance company."
   
3. "My demand letter appears more objective because it's backed by a medical person, and frankly, Dale is more objective because she has so much experience."
   

The total settlement in Ted's case came to more than $6,000,000, including costs of past and future medical care. As in other cases, the cost of Dale's services was rightly passed through to the client. "It's not like she's a secretary or paralegal," Phillips notes. "She's an outside professional who provides additional expertise and an invaluable medical perspective on the case."

He concludes, "Attorneys have neither the time nor the experience nor the medical knowledge to thoroughly review the records. We can't rely on the treating physician. If he doesn't know us, he may not be open with us. I think every attorney needs someone like Dale, someone medically trained, on his team."

CLNC^®s Turns Thousands of Pages of Records into "A Picture Worth a 1,000 Words"

Total confidence in the services and support provided by a CLNC^® is especially important when taking on a formidable opponent, such as a major international corporation. Bob Young, an attorney with English, Lucas, Priest and Owsley, a major personal injury firm in south central Kentucky, faced this challenge when he accepted the case of Heather Norman.^*

In 2001, the 12-year-old was severely burned in a motor vehicle accident that killed her mother and brother. "The truck's side-saddle gasoline tanks exploded upon impact," Young says, "leaving Heather with second and third degree burns over 25% of her body, including her back, chest, arms, hands and face. She had three surgeries to receive skin grafts and underwent numerous other medical procedures. She spent three weeks in the hospital, plus more than a month as an out patient receiving daily wound care and occupational therapy." Young filed a products liability suit against the truck manufacturer on Heather's behalf.

Medical cases like this can generate thousands of pages of records. "If I try to sift through the records and put together a summary," says Young, "it might or might not be accurate. I'm not trained in the medical field. It makes sense to have someone with medical training go through the records and decipher the important information."

Young uses the services of Gina Rogers, RN, CLNC for cases like Heather's. "My assignment," says Rogers, "was to document this child's pain and suffering. In addition to summarizing the records, I decided 'a picture is worth a thousand words.' I created a detailed graph of her body indicating all the burns and skin grafts. My completed graph showed that there was hardly an undamaged place on her body."

"Two major factors in this case," says Young, "were the enormous pain and suffering Heather had to deal with and the problems she would face in the future. Gina set forth all the pain medications my client received during the three weeks she was in the hospital. Gina also prepared a detailed list of Heather's potential future health problems."

Instead of sending the defendant thousands of pages of medical records, Young sent them Gina's report, including the dramatic graph of the plaintiff's injuries. "Gina's work was a significant part of the settlement brochure," he says. The case settled for an undisclosed amount.

Consulting an Independent CLNC^® Is Like Having a Nurse on Staff Without the Full-time Expense – For the last three years Young has used Rogers' services on almost every medical-related case. "It's like having a nurse on staff without the full-time expense," he says. "The most important thing Gina does is help me screen each case to see if it's worth taking. In every medical malpractice case you have to retain a medical doctor to testify to the standards of care. After Gina reviews the case, we discuss whether to retain a very expensive MD. Often we decide not to take that next step. If we do take the case, Gina has a network of doctors so she helps me find the expert, too."

CLNC^®s Improve the Health of Attorneys' Cases

Your training and experience as an RN has prepared you to understand the medical and nursing issues and the potential failings of the healthcare system. With CLNC^® training you can easily spot gaps and inconsistencies in the medical record, deviations from standards of care and numerous other health-related issues an attorney might easily overlook.

As a CLNC^® you are invaluable to both the attorney and the clients being represented. As Houston attorney Andrew L. Todesco asserts about what services a CLNC^® can perform for a legal practice, "Any attorney is foolish not to take advantage of the skills and talent available from RNs like Vickie Milazzo and those who have mastered her CLNC^® Success System. Vickie has helped to make me a better lawyer and played a big role in my success."

Your CLNC^® Certification is the prescription for the attorney's healthy, winning cases. Start prescribing today.

Vickie L. Milazzo, RN, MSN, JD is the founder and president of the Vickie Milazzo Institute. She was credited by The New York Times with creating the legal nurse consulting profession in 1982. Vickie has revolutionized the careers of thousands of RNs.

Notes

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1	Michael Tennesen. "Into the Toxic Cloud." Reader's Digest, July 2000, p. 134-142.
2	Washington State Department of Labor and Industries. "Violations alleged in fatal Moses Lake silicon plant explosion." L&I News, April 14, 1999. http://www.lni.wa.gov/news/1999/pr990414a.htm
3	Jani Gilbert. "Moses Lake company fined $10,000 for releasing toxic chemicals." Washington State Department of Ecology news release, Feb. 22, 1999. http://www.ecy.wa.gov/news/1999news/99-036.html
*	Names have been changed.