When I was a young girl, my father didn’t eat leftovers (still doesn’t). That caused my mom to be very careful about how much food she would prepare for meals. My sister, Karen, still jokes with me that mom would prepare only five pork chops (one of our favorite dishes) and not one more (despite our pleas). I hadn’t really thought about pork since my letter to President Obama or pork chops since the last time Karen and I talked about Mom’s pork chops.

That all changed this week when I was having a skylight repaired in my bathroom. The ceiling is pretty high so it required a long ladder and two repairmen – one to do the work and one to steady the ladder. Naturally the guy holding the ladder got bored quickly and became quite chatty. At one point, apropos of nothing, he mentioned that he couldn’t wait for lunch. I overheard him and asked him if he’d had breakfast (healthy green tea and a healthy breakfast is an important way to start your day). He told me he’d had a small one – his wife didn’t cook him any bacon to go with his eggs. I replied that he was lucky on two fronts: (1) his wife cooked him breakfast (I was glad Tom didn’t hear him say that) and (2) she’s helping him watch his diet.

He replied that it wasn’t his diet she was worried about, it was catching swine flu from the bacon. I laughed and told him he could safely tell his wife that you can’t get the swine flu from eating bacon or other pork products. In fact, I went on to tell him that unless she was sleeping with an infected pig or had a sick pig running around the house she was safe. Just as I was getting started on a lecture regarding the facts surrounding swine flu, I noticed his eyes began glazing over (just like an attorney’s do when a legal nurse consultant goes on too long about their services without engaging in their positioning strategies). I cut to the chase and said, “Tell your wife that the best way to beat the H1N1 Influenza A virus (we can’t call it swine flu anymore because we’re apparently offending pigs) and just about any superbug, is to follow the hygiene practices championed by that 19th Century nurse, Florence Nightingale. Her practices are still valid today: vigilantly wash your hands and stay clear of anyone who is ill.”

For attorneys who are reading this blog, before you call our office, any Certified Legal Nurse Consultant can tell you there is no product liability suit against a pork producer for an H1N1-infected piggy. Those same Certified Legal Nurse Consultants also know that there might be a medical malpractice case for failure to diagnose, since the symptoms of H1N1 Influenza A are so close to those of “normal” flu.

As RNs we can and should contribute to this public health issue by reminding everyone around us (not just our spouses and children) to wash their hands. We should also remember that nursing and medical personnel can be a source of infection.

I’ll be washing all the way up to the elbows for a long time to come. Stay clean and healthy!

Success Is Inside!

P.S. When I walked over to Starbucks this morning for my “free” coffee, the staff must have read my blog about them because they had my tall “red-eye” (bold coffee with a shot of expresso) on the counter by the time I got to the register (darn)!

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.

How do you start your day? Does your breakfast contain a line of pills (and I don’t mean vitamins) longer than your middle finger? If you open your medicine cabinet too quickly is there an “orange avalanche” of pill bottles? Have you succumbed to the slick marketing of pharmaceutical companies like many of my baby boomer friends who daily whip out an array of drugs for restless leg syndrome, elevated cholesterol, reduced bone density and sleep deprivation?

If you read any magazine and look at the ads, you’ll see that the pharmaceutical companies have medicalized just about every illness, condition and quirk. Not only are drugs shamelessly marketed directly to potential “patients” but to the physicians who would and do prescribe them. My 27 years of experience consulting on products liability and medical malpractice cases as a legal nurse consultant have caused me to be very suspicious of pharmaceutical companies and the diseases they create, and of course, very agitating to my personal doctors.

My Italian grandmother lived a long life and never took a single prescription drug. In Italy, food is the drug, and she proved to me first hand that what I shove into my mouth directly impacts my energy level and the state of my health. Relax, this isn’t a blog on diet. I don’t advocate any particular diet but I try and stick to a Mediterranean diet (mainly for the spaghetti), it’s what keeps me a healthy size 4 (I wish).

I’m a small woman at 5′ 2½”. When I was diagnosed with osteopenia my physician immediately recommended Fosamax^®. Considering all the side effects of Fosamax, which I’m intimately familiar with because of products liability litigation, I rejected it outright, but I know others who haven’t and others who won’t when their time comes (good luck chewing your steak).

Instead I increased my vitamin D, calcium and vitamin K intake; hit the weights in the gym a lot harder and added a little jump roping; all without the help of estrogen (natural, artificial or otherwise). It took some serious discipline but in one year I had gained significant bone mass – at a time and at an age at which the vast majority of women lose bone mass.

My physician couldn’t believe it and in fact, seemed almost upset that I did it without her help (or her meds). Surely I was an anomaly. No matter the evidence, there was no way she was a believer. She continues to practice medicine like the typical pill-pushing physician who’s been brainwashed by the pharmaceutical companies. Thank God I’m a nurse and can think for myself.

But most consumers can’t, so that’s why the book Our Daily Meds: How the Pharmaceutical Companies Transformed Themselves into Slick Marketing Machines and Hooked the Nation on Prescription Drugs by Melody Petersen is one of my favorites on the pharmaceutical industry. Not a day goes by that I don’t read about a new drug’s serious side effects and the products liability cases generating from them. This book focuses on the institutional deception of pharmaceutical companies and is a must read for all Certified Legal Nurse Consultants who consult on pharmaceutical products liability cases, and even medical malpractice cases. The author discusses physicians’ less-than-appropriate relationships with the pharmaceutical industry and how it’s marketing, not science that drives these companies.

You won’t need this book to tell you what you probably already know, but it will help you think differently about your legal nurse consulting business and the CLNC^® services you provide to your attorney-clients in this drug-dependent age.

Add this book to your “must reads.” And be careful what you put in your mouth – remember doctors used to endorse cigarettes once upon a time.

Success Is Inside!

P.S. If you want a truly eye-opening book on food and diet, try this one: Good Calories, Bad Calories by Gary Taubes – it’s not a diet book and not a light read but will change your thinking (it got Tom off beer).

Really, I mean that. Tom says that being around so many nurses has taught him one thing (well, two if you count never turn your back on a proctologist). Hospitals are great places to visit loved ones when you’re well, but they’re a horrible place to be when you’re sick. Studies have shown the longer you’re in a hospital recovering, the more likely you are to develop an infection, iatrogenic injury or even die.

Tom usually blogs about technology, but this one was too good for me to pass up. ECRI has come up with a list of the Top 10 Health Technology Hazards! That just sounded like fun. For your legal nurse consulting business, this is an eye-opening list of just what can (and will probably) go wrong with healthcare technology. ECRI even ran the list in order of importance. Here we go:

1. Alarm Hazards. You know you ignore them or worse – turn them off.
2. Needlesticks and other Sharps Injuries. This is really low-tech. We’ve been maliciously sticking unsuspecting patients with needles for years.
3. Air Embolism from Contrast Media Injectors. This I read AFTER my MRI?
4. Retained Devices and Unretrieved Fragments. Suddenly patients find themselves setting off the metal detectors at the airport or they are billed for a missing forceps.
5. Surgical Fires. Another reason why CRNAs shouldn’t smoke at work.
6. Anesthesia Hazards Due to Inadequate Pre-Use Inspection. More likely due to pre-use use by the CRNA and/or the anesthesiologist.
7. Misleading Displays. Especially the one showing brain activity.
8. CT Radiation Dose. Everyone else leaves the room during the x-ray, why shouldn’t the patient?
9. MR Imaging Burns. You stick a damaged headset and goggles on the patient, then ram him into the magnetic bore and wonder why he comes out with his hair on fire?
10. Fiber-Optic Light-Source Burns. Another way to set a patient on fire is by resting a hot “cold light source” on him during surgery.

The ECRI report also lists five of last year’s hazards that didn’t cause enough harm to make this year’s Top 10. They are still described as “significant” concerns. ECRI has taken the time to identify problems that any Certified Legal Nurse Consultant realizes are avoidable. I’d get a copy of this list and keep it handy when screening your medical malpractice cases. For a limited time, you can use the link above to visit ECRI and download a free copy of the report.

It’s like Tom always tells me “Technology is fun – in the right hands.”

Success Is Inside!

P.S. Have you seen any med-mal or products liability cases in your legal nurse consulting business related to these topics? What, in your opinion, is the biggest health technology hazard? Comment here.

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.

Success Is Inside!

Having just been in the ED for 6 hours with a friend, I witnessed firsthand the secondhand, substandard grade the American College of Emergency Physicians (ACEP) has given to the state of emergency care in the U.S.

The care I witnessed wasn’t deplorable, but it wasn’t inspiring either. The staff’s empathy for a grieving family was hit and miss. The orthopedic resident’s technical ability as well as her interpersonal skills and judgment left a lot to be desired. And the hygiene of the department – well what can I say? It was as much of a hygiene risk as my 4-year-old godson’s preschool playground full of little Ebola viruses.

ACEP reported in a Report Card on the State of Emergency Medicine that the “Economic woes and a failing health care system mean more people than ever before are relying on emergency care at a time when the nation is receiving a substandard C- grade for its support of emergency patients.” Dr. Nicholas Jouriles, president of ACEP said, “Policymakers can no longer remain oblivious to what is happening in emergency departments.” He called on President-elect Obama to make emergency care a top priority in health care reform proposals.

Dr. Angela Gardner, ACEP’s president-elect, said “The emergency care system is a ticking time bomb… a failing health care system means more people than ever before will be relying on emergency care meanwhile, every minute of every day in this country people need emergency medical care, and that need is growing as our population ages and lives longer.”

Emergency care is becoming primary care – it’s the frontline of medicine, and America’s losing the battle. This substandard care will increase the number of medical malpractice emergency cases and increase the demand for Certified Legal Nurse Consultants on emergency care issues.

Success Is Inside!