Case Evaluation

People, including my 85-year-old father, who suffer from aberrant heart rhythms received a shock (literally) last year when Medtronic, manufacturer of the Sprint Fidelis leads used to connect electronic defibrillators to their hearts, were malfunctioning at rates higher than those of other leads. The leads were later pulled from the market, but were not pulled from the recipients. Depending on who you believe, anywhere from 87.9%-94.3% of the leads are still functioning in patients. Many of the recalled electronic defibrillators cannot be changed or removed without a risk of harm to the patient.

Earlier this May, the Heart Rhythm Society, a heart-doctor group representing MDs who implant and extract defibrillators and their associated leads, issued policy statements calling for hospitals to better police the experience and training of the surgeons who extract defibrillator leads. They also issued a statement calling for companies that produce the leads to do a better job of tracking their performance once they’re on the market.

A Certified Legal Nurse Consultant participating in a case where there’s suspicion of a malfunctioning cardiac defibrillator, its leads or an injury that occurred while the leads were being removed, should look closely at the experience of the doctor who connected or extracted the leads. While the new guidelines have yet to take effect, the training and experience may be relevant to the injury. Defense Certified Legal Nurse Consultants may be able to raise the level of experience in the defense of the doctor while plaintiff-side CLNC^® consultants will raise lack of experience as evidence of negligence.

The medical-device manufacturers never fail to shock me!

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My most memorable case occurred when I testified for the very first time. I had been a Certified Legal Nurse Consultant for about a year. The case was a will contest. The client was the daughter of an elderly woman who had passed away in a skilled facility. About 72 hours prior to her death, the son (the client’s brother) had the will altered so that he would inherit most of the estate. The changes to the will were made by an attorney. The son then took the will to the facility and had his mother sign it with a notary (a friend of his) present and another witness (his sister-in-law). The estate was worth around $1,000,000.00.

My attorney-client hired me to review the medical records to search for evidence that the deceased was under undue influence when she signed the second will (based on the records and that 72-hour window). I reviewed the records and prepared my report. I found the mother was confused, too weak to hold a pen by herself, under the influence of strong sedating medications and hypoxic.

My attorney-client decided that his case depended on my assessment of the mother and her mental state during the time of the second will signing based on my findings in the medical records. I was called to testify. I was nervous so I rehearsed the night before.

There was a jury present to hear the case. The opposing attorney, of course, tried to tear me apart but I looked at the jury and relayed facts from my report in terms they could understand. He could not trip me up no matter how hard he tried. I testified that when the mother signed the second will, she had low oxygen saturations in the 70s and 80s with use of supplemental oxygen (the patient was a DNR by her choice). The impact of hypoxia on the brain, the effects of large doses of morphine and Ativan IV in regards to sensorium, the fact she had to be fed as she could not hold a fork or spoon and probably not a pen on her own, and the nursing and rehab staff repeatedly charted the patient was confused and disoriented painted a picture of her mental state. I also pointed out the doctor who testified earlier that the client was alert and oriented was not the doctor who had seen her last based on the signatures in the chart. Furthermore no physician had assessed her during the 24 hours prior to her signing the second will. Thus, the testifying physician, although he was the PCP, would not have had first hand knowledge of her mental status at the time in question as did the nursing staff and rehab staff who actually assessed her during the time frame in question.

The final question that the opposing attorney asked was, “How much does Mr. M. pay you for your services?” I answered his question and he then said, snickering with a smug look on his face, “That is a little steep, don’t you think, for a nurse?” I started to reply and he cut me off. I looked up at the judge and asked calmly if I could answer the question. The judge told me to go ahead. I proceeded to tell the attorney that I had 24 years of nursing experience and had taken care of hundreds of dying patients. I explained what a CLNC^® consultant does and how I received my training, and I offered to give the opposing attorney my contact information. The jury was smiling at me. I then left the court room.

Later that evening I received a phone call from my attorney. He said, “You were fantastic, we won. The jury said your testimony sealed the case in our favor. By the way, on my way out, I patted Rob (the opposing attorney) on the shoulder and told him that is why I pay your consulting fee. He wasn’t laughing anymore, but fuming mad.” The daughter received her half of the estate as directed in the original will and the court determined the mother was not competent and was under undue influence when she signed the second will thus it was null and void. I have since worked for the opposing attorney.

P.S. Please comment and share your most memorable CLNC^® case.

Guest Blogger Profile

Stephanie D. Stanley, RN, CLNC owns SDS Legal Nurse Consulting Services, LLC in Virginia. Stephanie consults with attorneys on a variety of medical-related cases.

The original Impressionists were considered radicals in their day as they departed from what was considered the “old-school” of artists. Time after time, impressionist painters would submit their work to juried art shows but their paintings would be rejected in favor of lesser artists who painted in the “approved” style of the times.

In order to exhibit their own works, these revolutionary artists rejected the establishment and formed their own society of painters – the Société Anonyme Coopérative des Artistes Peintres, Sculpteurs, Graveurs (Cooperative and Anonymous Association of Painters, Sculptors, and Engravers). Their first show was met with a firestorm of criticism and the term “Impressionist” was given to their artistic style as a derogatory term. The artists chose to adopt this derogatory term “Impressionist” and proceeded to make art history.

The “Impressionist” school captured the scenes they were painting without the strictures placed upon painters by the “Realism” school that was dominant at the time. They focused, or unfocused, on a new way of painting light into scenes of everyday life, rejecting the minute details of realism. When you look at an Impressionist painting up close, there is no detail – there are only short thick strokes and unmixed colors. When you stand back from the painting you see, with a realism not present in the “Realist” paintings, the diffused sunlight on a haystack, people strolling down a boulevard or partying on a Sunday afternoon in a park. The works come alive from a distance.

When an attorney-client is presenting a case to a jury, too many details can bog it down, distracting the jury and leading them down rabbit trails. Your job as a CLNC^® consultant is to help the attorney present the picture with the broad strokes and bold colors needed to show the case in its best light. Sure the underlying details will need to be there to back up your opinions and the attorney-client’s case, but sometimes it’s best to present an Impressionist view of a case to an attorney-client and then to the jury before breaking it down to the details.

They say you never get a second chance to make a first impression. What sort of Impressionist impression are you making on your attorney-clients?

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Vickie,

I am reviewing records on a case and I am summarizing them into a written chronological report for my attorney-client. I have received multiple records from different facilities and I noticed that some of the facilities’ records are duplicates of records I received from other facilities. Do I still include them in my report even though they are repeats?

Tracy Z., RN, CLNC

Hi Tracy,

First establish that the records are truly duplicate records. In your chronology, list only the original source document one time.

e.g. Martin Hope Hospital p. 35

e.g. Dr. James p. 14

Unless the duplicate record has relevance (e.g. the provider states they were not aware of something when they had records containing that information), I would suggest attaching all the duplicate records as a separate section labeled “duplicate records from other facilities and providers.” Confirm with your attorney-client that this approach works for her.

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Vickie

I doubt any of us, as CLNC^® consultants, ever forget our first case. Mine is most memorable for several different reasons. I learned so much, some of it the hard way. I had earned my CLNC^® Certification a few months earlier and used Vickie’s advice regarding marketing myself by mailing out my resume with my qualifications and a cover letter, then followed up with a phone call. One attorney had a case on his desk, which had been referred to him by another attorney. The case involved a potential client who lived out of state. The attorney drove approximately six hours one way to interview the potential client and his wife. He felt there was probable merit to the case but he needed someone to review the records. He had filed the proper notices to all the possible defendants of a medical malpractice lawsuit.

I was so excited the day the records arrived at my home. There was a large amount of records as the potential plaintiff had a five-week hospital stay with numerous complications. So I began the screening process.

The potential plaintiff, Mr. Smith, had recently been diagnosed with Hodgkin’s disease and had a mediport placed for chemotherapy treatments. However, the symptoms of a pre-existing esophageal diverticulum had become so pronounced that he decided to have an elective excision of the diverticulum with a myotomy before starting chemo treatments. Mr. Smith had an extensive medical history including a previous heart attack with placement of a stent, hypertension, hyperlipidemia, three back surgeries and diabetes.

Mr. Smith experienced several complications after the first surgery, one of which made it necessary for placement of a chest tube, which was done at the bedside by the surgeon. Mrs. Smith alleged she had not been called at home for permission so proper consent was not given for the procedure and it caused Mr. Smith excruciating pain, which resulted in a second heart attack and a transfer to ICU.

The dots just weren’t connecting. Something wasn’t right. Mr. Smith had a second heart attack which was confirmed by the medical records, but how could I prove what happened to him? How could pain from the chest tube insertion, etc., cause the second heart attack? He already had a stent resulting from the first MI, combined with the high cholesterol and diabetes.

So here I go, back to my Core Curriculum for Legal Nurse Consulting^® textbook. It almost jumped out at me, as if a light bulb had suddenly come on in my head! In Module 3, “Theories of Liability and Defenses Used in Medical-Related Cases,” it discusses the four legal elements, which must be satisfied to prove negligence: duty, breach of duty, damages and causation. The definition for causation pretty much says it all: “A reasonable connection between the acts of negligence and the alleged damages.” I felt the other three elements of duty, breach of duty, and damages were satisfied, but not the element of causation. So I read further. Under, “Factors to consider when evaluating causation,” it lists as one of the factors, “Past medical history and pre-existing conditions.” And I continued to read and in Module 5, “How to Screen Medical-Related Cases Effectively and Efficiently,” Vickie discusses defensible cases which plaintiff attorneys frequently reject because of pre-existing conditions.

So here I am feeling pretty good about myself. I am ready to type my letter to the attorney advising him that in my opinion, his case does not have merit. I used one of the samples provided in the Core Curriculum to ensure my opinion sounded professional. I relayed to the attorney that I felt Mrs. Smith had some legitimate complaints regarding Mr. Smith’s hospital stay and that while it was sad he had experienced numerous complications, it was my opinion that the element of causation could not adequately be satisfied due to Mr. Smith’s past medical history and pre-existing conditions and then I went on to list all the pre-existing conditions.

The attorney very politely informed me that he wanted me to list the deviations from the standards of care and then he would make the decision whether the case had merit.

In a much later phone conversation, the attorney stated, “Ms. Holmes you were right in the first place.” Well, needless to say, this made me feel pretty good.

There are many things I learned from my first case. One of the most important things is to communicate thoroughly upfront with your attorney-client. Don’t assume anything. If in doubt, ask questions. I think there are many attorneys, especially attorneys in small firms who have not worked with a CLNC^® consultant before and really do not know how much help we can be to them.

I have twenty-two years of nursing experience and am confident regarding my nursing skills and judgment, but I am still building confidence as a Certified Legal Nurse Consultant. Owning a legal nurse consulting business is entirely different from what I have been accustomed to doing for a paycheck. This case did boost my confidence. My first conclusion was correct and the attorney finally agreed. If we are not honest with our attorney-clients about our findings, we both will come out losers in the end.

I believe everything we need to be a successful CLNC^® consultant is included in the Core Curriculum for Legal Nurse Consulting^® textbook and the lectures that go along with it. Vickie’s CLNC^® Mentoring Program is invaluable. Each time I have used the mentoring program, my questions were answered in a very timely manner, sometimes within a couple of hours. I live in a small town and I feel isolated at times. With the mentoring program, no matter what the question is, support is readily available.

We have to make the decision to take the plunge. For me, I thought about it for approximately four years. And you know what, it’s scary. But I believe with Vickie’s help and persistence it’s possible to be a successful CLNC^® consultant.

P.S. Please comment and share your most memorable CLNC^® case.

Guest Blogger Profile

Peggy Holmes RN, ONC, CLNC owns and operates Holmes Legal Nurse Consulting in Arkansas. She has 22 years of nursing experience and currently works part time in The Women’s Center at the local hospital. She consults on medical related cases and specializes in orthopedics, pediatric and med-surg cases.

As a young baby boomer, I have to face the fact that one day I’ll be old. Not tomorrow and not the next day, but sooner than I want to admit. One good thing is – I’ll have lots of company. The bad thing is – all those Generation Waste kids that will be taking care of us (you know the ones with piercings, tattoos and bad work ethics).

What brought this up? The Center for Medicare and Medicaid Services (CMS) has released a rating system for nursing homes. What a genius idea! Now we can pick our nursing homes the way we pick our vacation hotels (no, they’re not on Priceline yet). The system goes from one to five stars based on factors including inspection records, number of patients developing pressure ulcers, complaint inspections and more (including staffing).

It seems the non-profit facilities had a higher number of five-star nursing homes (I never, ever thought I’d say “five-star” and “nursing home” in the same sentence) that was double the number of five-star for-profit facilities. Interestingly, the number of one-star for-profit nursing homes was double the number of one-star non-profit nursing homes. In other words, these owners put profit before people.

You can read more about this at Medicare’s website and while you’re there, download a handy “Nursing Home Checklist” to take with you when you start looking for your own nursing home. It’s got a fun nursing home locator with a variety of search options so you can see what’s available in your area.

On a serious note, as a Certified Legal Nurse Consultant working on cases involving nursing home residents, I’d be very interested in the rating for the defendant facility and any quality data you can drill down into about that facility. CMS has given the plaintiff’s bar another effective weapon in the fight against evil. The defense bar can use this too – if their facility is highly rated.

Check it out now – before you have to.

Vickie

P.S. If you want to spend your breaks reading an excellent, and moving, novel about nursing homes pick up “Old Friends” by Tracy Kidder. It will make you laugh and cry – sometimes at the same time.

Whether you are screening medical malpractice cases for plaintiff or defense, as a Certified Legal Nurse Consultant, you should be on the lookout for those obvious meritorious cases. When you see them, the red flags go up as long as there is significant injury or death. For example, maternal death gets everyone’s attention. The plaintiff CLNC^® consultant’s response is – this is one the plaintiff attorney should absolutely represent. The defense CLNC^® consultant’s initial response is – the defense should settle and settle fast.

Plaintiff attorneys usually want to see significant injuries, even in obvious cases of medical malpractice. They have to weigh the cost of litigation against the return. They must consider if it makes sense. They don’t want to spend $150,000 to win back $250,000.

The Centers for Medicare and Medicaid Services (CMS) recently made it so easy for plaintiff attorneys to successfully litigate 13 types of medical malpractice cases that plaintiff attorneys may be more willing to take on these 13, even if the damages do not meet their usual expected criteria.

To start at the beginning, the National Quality Forum (NQF) endorses a list of 27 serious, preventable and reportable “Never Events.” CMS, issued a ruling last year, effective October 1, 2008: CMS would no longer reimburse for 10 selected “Never Events” – events that should never happen and which are clearly caused by the hospital and/or its staff. Then, effective January 15, 2009, CMS issued another ruling adding three additional, surgery-related “Never Events.” In other words, CMS is trying to save lives by saving money.

Cases involving “Never Events” account, according to AON, for a large percentage (12.2% or more) of medical malpractice claims and will be difficult to defend and easy for the plaintiff attorney to settle fast, thus reducing their litigation costs. Insurance companies will fear taking these cases to trial and losing at great expense. They can settle out of court cheaper.

“Never Eventland” provides the perfect playground for a law firm’s new, young and inexperienced associate attorneys to practice on.

Add these 13 CMS “Never Events” to your “Plaintiff Alert Signal” list.

1. Unintentional retention of a foreign object after surgery.
2. Air embolism.
3. Blood incompatibility.
4. Pressure ulcers (Stages III and IV).
5. Hospital-acquired injuries from falls and certain traumas (fracture, dislocation, intracranial injury, crushing injury, burns and/or electric shocks).
6. Manifestations of poor glycemic control.
7. Catheter-associated urinary tract infections (UTI).
8. Vascular catheter-associated infection.
9. Deep vein thrombosis (DVT) or pulmonary embolism following total knee replacement and hip replacement procedures.
10. Surgical-site infections following certain orthopedic procedures, mediastinitis following coronary artery bypass graft (CABG) and/or following bariatric surgery for obesity.
11. Surgery on the wrong body part.
12. Surgery on the wrong patient.
13. Wrong surgery performed on a patient.

Educate your attorney-clients about “Never Events.” Offer to do a 20-minute presentation for all of the attorneys in the law firm. Even with attorneys, small wins are good.

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