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Can You Use a Legal Nurse Consultant?

February 1, 2003
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The nurse who is trained to help minimize facilities' exposure to liability suits By Mardy Chizek, RN, FNP, BSN, MBA, AAS, CLNC
Can You Use a Legal Nurse Consultant? These specially trained and experienced nurses can be frontline protectors against liability suits

BY MARDY CHIZEK, RN, FNP, BSN, MBA, AAS, CLNC Legal nurse consultants are specially trained registered nurses who review and analyze clinical outcomes for compliance with standards of care. The legal nurse consultant is used by both plaintiff and defense counsels. Although the way in which a professional nurse interprets standard-of-care questions depends on the facts of the case, the timing of the case, and who is paying for the review-plaintiff or defense-professional judgment is a critical element of interpretation. The legal nurse consultant can be used in a number of roles:
  • Consulting expert
  • Testifying expert
  • Facility-based investigator
  • Trainer and in-service presenter
  • Peer reviewer
  • Quality improvement, risk management, claims management
  • Liability insurance marketer and clinical resource

Standards of care change constantly, and the medical and nursing staff must know the current standard to develop or modify policies and procedures. Policies and procedures that are modified, as well as those that are outdated and replaced, must be maintained and secured indefinitely. They will be used if or when the facility is sued to establish what the current standard of care was at the time of the occurrence. They also provide the legal nurse consultant with the basis from which facility documentation will be judged for compliance.

The minimum length of time the modified policies and procedures should be kept is the time frame of the statute of limitations in the individual jurisdiction. In most jurisdictions, the statute of limitations is two to three years.

Training is essential for all healthcare providers, to ensure that they are familiar with the current standard of care. If the management team does not allow staff to attend continuing education programs; does not provide economic incentives for professional growth, development, and training; or does not provide adequate orientation, the facility is at significant risk. If sued, the facility is in an indefensible position.

As noted, the legal nurse consultant can be used as either a consulting expert or a testifying expert. As a consulting expert, the legal nurse consultant is the clinical expert who reviews the medical record, provides clinical interpretation, and assists counsel by recommending and selecting other medical and/or nursing experts. When the legal nurse consultant is used as a testifying expert, legal counsel will rely on this professional nurse's testimony to establish the standard of care for the judge and/or jury.

Nursing facilities and other organizations can use the legal nurse consultant's expertise more proactively. In situations in which a resident has experienced an adverse outcome, the legal nurse consultant can be used for clinical record review, to identify areas of risk, and need-ed clinical modification. These recommendations can be executed by the facility's Quality Improvement or Safety Committee, and policies, procedures, and systems modified to be consistent with existing standards of practice.

The legal nurse consultant can also function in the role of investigator. Investigation of resident adverse outcomes is typically not in-depth or comprehensive in most organizations. It is also often difficult to protect the investigation from discovery. If the investigations are done by the nurse consultant in collaboration with and under the direction of defense counsel, the investigation is protected as attorney-client work product.

The investigation will often include "statements" by staff members, which are used by both plaintiff and defense counsel during the litigation process. Often these statements are poorly written, inconclusive, or damaging for the defense. The legal nurse consultant can interview staff and provide directed questioning to ascertain the facts of the case, after which the employee signs and dates the statement or document to verify its authenticity. Working with defense counsel, the legal nurse consultant can help protect this critical information and ensure that it is comprehensive, integrated, and consistent.

The legal nurse consultant can work as a peer reviewer, providing on-site training to help the nursing facility document in a legally and clinically sound manner. The review of the legal nurse consultant is then incorporated in the facility-wide quality-improvement program.

Depending on the skills of the legal nurse consultant, these professionals can also be a resource for claims management. Working on behalf of the facility, they can coordinate and facilitate activity between the insurance company claims staff and the defense counsel. Often the facility believes that it is in a helpless position, with no one involved in the claims process actively fighting for its rights and position. The legal nurse consultant can be a primary asset for the facility in its discussions with liability insurance carriers. In today's dwindling insurance marketplace, the nurse consultant who knows the organization can independently communicate to the insurer his/her findings and professional opinion concerning the quality, risk, and safety status of the organization.

Legal nurse consultants, used effectively, can be a tremendous asset to a nursing facility attempting to survive in these challenging times. NH