Why Attorneys Use Legal Nurse Consultants/Experts - Part 2
APRIL 18, 2022 | BY KATHLEEN MARTIN, RN, MSN, WCC
Elder Abuse Case Process and the LNC
The first step is to secure as much information from the potential client as possible prior to ordering any medical records. Medical records for elderly patients are usually voluminous, simply because the geriatric patient generally has a multitude of medical issues directly related to the process of aging and chronic illness. When speaking with the potential client, the attorney will be faced with someone who has a story to tell. The attorney can speak with the potential client or have the LNC contact the potential client. Being able to manage the conversation to secure the pertinent information required necessitates a pre-written list of questions to ask, which may include: type of injury, date of injury, name, address and phone number of the facility, name of the person to whom the injury occurred, relationship to the caller and the length of stay in the facility. This list is not inclusive, but offers the basics. In the majority of cases, the attorney does this preliminary part.
If the information provided suggests further investigation, then the next step is to secure the medical records from the facility where the alleged injury occurred. The facility may be an acute care hospital, a skilled nursing facility or a community care facility.
Oftentimes the potential client already has some records, usually incomplete, but a start. Once the LNC has reviewed the records for merit, he or she will notify the attorney of the findings. The findings should address whether or not the allegations of elder abuse meet the requirements of the specific state Department of Health Administrative Code. If the review indicates merit to the allegations, then the LNC should provide the attorney with a request for any other necessary and additional records for review, which can include previous admissions to other facilities, physician office visits, death certificates and/or autopsy reports, if applicable, prior to generation of the complaint. Once those records have been reviewed, the LNC should be able to provide the attorney with specific failures of the standard of care and those failures unique to the elder abuse statutes. It is from these failures that the attorney should have the foundation for the complaint.
The LNC reviews the medical records looking for breaches in the nursing standard of care. The LNC utilizes a number of resources to determine failures of the nursing standard of care, which can include, but are not limited to: the Nursing Practice Act, standards of practice specific to the facility and type of nursing area involved, state and federal laws and regulations applicable to the facility where the alleged injury occurred, and professional journals. The LNC analyzes the nursing care provided to determine whether or not the allegations rise to the level of elder abuse, and if not, whether nursing negligence or gross negligence exists. To accomplish this task, the LNC scrutinizes the following sections of the resident's or patient's medical record: medical history and physical, MD orders, nurse aide notes, MDS, care plan, nurses' notes, vital/ weight records, intake and output records and ancillary service records.
After the complaint is filed, the LNC can continue to assist the attorney, either as an expert witness or consultant. As an expert witness, the LNC opines regarding the nursing standard of care; thus, the LNC may generate a declaration, be deposed and testify at trial. As a consultant, the LNC can generate written reports listing the strengths and weaknesses of the case, identify other experts who may be necessary to address the standard of care for other healthcare professions, assist in requests for production, assist with deposition questions and may attend mediation sessions and arbitration hearings.
Similarly, the LNC can be brought on by the defense attorney even prior to a complaint being filed by the plaintiff, but generally comes on board after the complaint has been filed. The LNC can be utilized as an expert witness or a consultant. The LNC compares the medical records with the complaint to determine whether or not the complaint is accurate in its allegations of elder abuse. The defense LNC utilizes the same resources as the plaintiff LNC to determine the validity of the elder abuse allegations and to formulate opinions.
Other Critical Areas are falls, wound care-pressure ulcers/injuries, IVs, and medications to name a few areas that LNCs are well versed in and can provide case direction.
Nurses working in wound care, for example, or on a hospital med-surg floor, or any other clinical area, as well as teaching, can easily become an LNC and learn how to assist attorneys nationally with their cases. Your first step is to go to www.6figurelegalnurse.com to learn more and register.
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