“This case did boost my confidence. My first conclusion was correct and the attorney finally agreed.”
I Taught My First Attorney-Client to Trust My Legal Nurse Consulting Opinions
by Peggy Holmes, RN, ONC, CLNC
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.
Click here for Memorable Case guidelines and thought starters.