The Legal Nurse Consultant is a licensed registered nurse who performs a critical analysis of health care facts and issues and their outcomes for the legal profession, health care professional, and others, as appropriate. With a strong educational and experiential background, the legal nurse consultant is qualified to assess adherence to standards of health care practice as it applies to nurses and health care professionals.
The Legal Nurse Consultant practices the art and science of his or her nursing specialty in a variety of settings, including law firms, government offices, insurance companies, hospital risk management departments, and as self-employed practitioners. The legal nurse consultant is a liaison between the legal and health care communities and provides consultation and education to legal, health care, and appropriate other professionals in areas such as personal injury, product liability, medical malpractice, workers’ compensation, toxic torts, risk management, medical professional licensure investigation, and criminal law.
Parameters of legal nurse consulting practice may include:
- Facilitating communications and thus strategizing with the legal professional for successful resolutions between parties involved in health care-related litigation or other medical-legal or health care-legal matters.
- Educating attorneys and/or others involved in the legal process regarding the health care facts and issues of a case or a claim.
- Researching and integrating health care and nursing literature as it relates to the health care facts and issues of a case or a claim.
- Reviewing, summarizing, and analyzing medical records and other pertinent health care and legal documents and comparing and correlating them to the allegations.
- Assessing issues of damages and causation relative to liability within the legal process.
- Identifying, locating, evaluating, and conferring with expert witnesses.
- Interviewing witnesses and parties pertinent to the health care issues in collaboration with legal professionals.
- Drafting legal documentations in medically related cases under the supervision of an attorney.
- Developing collaborative case strategies with those practicing within the legal system.
- Providing support during discovery, depositions, trial and other legal proceedings.
- Supporting the process of adjudication of legal claims.
Source: "Legal Nurse Consulting: Principles and Practice" (1st ed.), (1998), Boca Raton: CRC Press
Types of Cases
– The client must establish that there was a departure from the accepted Nursing Standard of Care. "Accepted" is care that would have been given by a prudent nurse practicing in the same circumstance. Occasionally there are multiple accepted Standards of Care for the same situation. A nurse is not negligent, as long as the nurse chose an approved method, even if that choice later turns out to be the incorrect method. If the defendant nurse provided care that was consistent with accepted practice, the nurse would not be negligent, regardless of the client's outcome.
Required for Nursing Negligence:
• a causal relationship between the act or omission of actions that depart from the accepted nursing standard of care and the patient's subsequent injury
• established that if the nurse had not been negligent, with high probability, the patient's damage would not have occurred
• supported by an expert witness testimony
Legal Nurse Consultants (LNCs) review all relevant documents, prepare reports, research Standards, and locate testifying experts for the plaintiff or defense. If something was outside of the acceptable guidelines, an LNC finds it. Uncovering these problems is necessary for any breakdowns in policy and procedure at the facility to be revised to prevent future occurrences, safeguarding both patients and nurses.
– A person claims he or she sustained an injury due to the negligence of another person, a defective product, or an unsafe condition. These cases include motor vehicle collisions, slip and falls, and many other injuries. The plaintiff receives money for damages from the person or company found to be legally responsible for the accident or their insurance company. The plaintiffs ask for compensatory and, or punitive damages.
Damages may include:
• emotional distress
• loss of consortium
• medical treatments
• pain and suffering
• property loss
Establishing what injuries have cost the plaintiff, monetarily, physically, and mentally, will require a vigorous review of health records. Comparative and contributory negligence requires investigation. LNCs are invaluable to legal teams during this process.
– Cases encompass catastrophic injuries involving one individual plaintiff, to significant product liability class actions involving multiple plaintiffs. These lawsuits can be costly and complicated, compared to other kinds of litigation. Lawsuit exposure poses severe threats to manufacturers, technology, and pharmaceutical companies and insurers. Defective products pose dangers to the general population. LNCs deliver exceptional consultations in product liability cases related to nursing or any healthcare products.
The main ways of proving negligence include:
• breach of warranty
• negligent acts
• strict liability
Nurses work with products and equipment in all areas of healthcare. Industry expert witnesses, of the discipline in question, are consulted to help prove if a product was defective, or if harm may have occurred from user error. LNCs serve as or find the nurse experts to assist in product liability cases.
Toxic Tort and Environment
- A toxic tort is a subset of Personal Injury law and often results in Mass Torts. Toxic tort entails claims of injuries associated with and arising from exposure to dangerous substances. These exposures may occur in the home, workplace, or any setting. The wounded often file lawsuits.
These cases involve alleged damages or injuries caused by the release of toxins into the environment, such as:
• electromagnetic fields
• environmental toxins
• hazardous chemicals in a workplace
• industrial chemicals
• lead poisoning, lead-based paint
• oil Spills
• pharmaceutical drugs
• radiation contamination
• sick building syndrome
• waste management and disposal
• waste products from manufacturing processes
It is critical to show causation in a toxic tort claim. That is difficult due to the nature of these types of injuries. Damages caused by exposure to dangerous substances may not be evident until several years after the exposure. It can be extremely challenging to prove that the element in question is the causing factor. Therefore, these types of lawsuits depend heavily on science and medical records and studies. LNCs are very competent consultants on a variety of healthcare topics related to toxic torts. Services include analyzing documents, organizing reports, and offering expert testimony.
Worker's Compensation and Workplace Injury
- Workers' Compensation is a state-run program that pays medical expenses and monetary benefits to employees injured at their job sites. These claimants must prove that they suffered an impairment or incapacity that rendered them unable to earn the wages they were paid, when the injury occurred, in the same or other employment.
Cases involving job-related injuries (injuries arising out of and during their course of work):
• aggravation or exacerbation of preexisting injuries
• auto accidents
• back injuries
• cumulative trauma and repetitive motion disorders
• damages caused by objects colliding with the workers
• equipment and machinery-related injuries
• exposure to chemicals
• hearing loss
• slip and falls
• workplace violence
The roles of an LNC are analyzing the medical records of claimants and coordinating their medical care. We can coordinate with medical providers, the injured worker, and the insurance carrier to see that the claimant receives timely, cost-effective, and appropriate medical care. We can coordinate return to work plans with claimant's healthcare providers, and simplify the injured worker's "return to work" per the treating medical provider's release.
- Cases encompass those with some action considered harmful to our society as a whole. Criminal cases may include DWIs, possession of narcotics, child abuse and neglect, dependency, physical assault, domestic violence and sexual assault, elderly abuse, violent crimes, Medicaid, and Medicare fraud.
Legal Nurse Consultants will assist attorneys with these services:
• analyze medical records to appreciate the story behind those records
• contribute to the preparation of compelling arguments for motions
• determine if the medical records corroborate the claimed injuries
• evaluate if charges support with the evidence
• getting additional or missing data with discovery demands or motions to compel
• help in preparing useful cross-examination of experts
• prepare visualizations and graphs for trials
• support with developing persuasive case theme based on the objective evidence
• utilize easily understood tactics for presenting complicated evidence to a jury or judge
–These are cases concerning the professional negligence of a healthcare worker, healthcare facility, or teaching organization. Instances involving the negligence of an individual or entity who makes decisions regarding access to care may also be subject to personal injury litigation. Neglect may also include delays of treatment, inappropriate utilization review, or negligent case management. Negligence cases require that attorneys fully understand all the case facts, as well as strengths and weaknesses of their claim to avoid litigating the non-meritorious case or conversely leaving money on that proverbial table.
We can aid attorneys by making an objective, evidence-based assessment of:
• central ideas for successful cross-examination of testifying experts
• degree or seriousness of injuries
• development of solid case themes
• foundation for punitive damages claims
• need for and type of expert witness
• the proximate cause of the injuries
• validity of claims
– Legal Nurse Consultants can investigate adverse occurrences and potential compensatory events, medical malpractice claims, patient complaints, billing disputes, and analysis for risk liability exposure. As part of the Risk Management team, we consult with clinical staff on risk management issues and conduct professional licensure investigations. We can also serve in the Claims Management Team and assist with claims management. Legal Nurse Consultants direct, lead, and coordinate the education of all staff members in the Medical Center regarding the objectives and purposes of Risk Management. We may develop and then continually supervise the planning, implementation, and maintenance of a comprehensive Clinical Risk Management assessment program designed to promote safe clinical practices and continuously improve the quality of patient care.
Legal Nurse Consultants maintain active involvement in investigations, analyses, clinical risk management processes, and follow-up actions resulting from patient occurrences. We represent the Department of Risk and Insurance Management as a liaison across the organization for inpatient and outpatient nursing, providers, directors, and other disciplines. Responsibilities of the liaison include directing and managing the implementation of clinical risk management training programs for nursing and provides content for physicians. Legal Nurse Consultants can also be responsible for ensuring internal and external customers receive proactive or responsive clinical risk management services.
Nursing Home Abuse
– The residents of nursing homes rely on staff to help them with daily needs, and take care of their physical and medical disorders. Since these residents are defenseless, abuse takes many forms. Staff may not administer the medications properly, may deny them adequate water or food, may not supply them with heating or cooling, or may not attend to their basic needs in various other ways. These actions constitute abuse, whether or not the resident is aware of abuse, or can report it.
Legal Nurse Consultants recognize when a resident has signs of mistreatment. We will review medical records to find what happened to the plaintiff or their family member.
Fraud and Abuse
– Health care fraud and abuse is a national problem that takes many forms and affects all of us either directly or indirectly. It is the deliberate falsification, dishonesty, or planned act of deception to get higher reimbursements. Health care fraud costs the country tens of billions of dollars a year. The furtherance of these schemes also harms some patients.
Some common types of fraud include:
• allowing untrained or uncertified subordinates to provide medical treatments
• billing for covered services when actual services offered were not covered
• billing for equipment and products not ordered or distributed
• billing for services not provided
• carrying out unnecessary teeth removals on adults and children
• charging for a more intricate service than those provided
• duplicate submission of claims for the same service
• misrepresentation of provided services
• ordering unnecessary lab tests
• adding someone who is not eligible for coverage to a policy
• failing to remove someone who is no longer eligible from a policy
• using a member ID card that does not belong to that person
• visiting several doctors to obtain multiple prescriptions
One of the most effective ways LNCs determine if insurance information is deceptive is to review the explanation of benefits forms sent to patients from their insurance company. These forms list the services and supplies supposedly provided to patients from medical providers. If any billings are suspect, we will immediately contact the insurance company.
Compliance and HIPPA
– HIPAA, the Health Insurance Portability and Accountability Act, sets the standard for protecting sensitive patient data. Compliance and HIPPA must document verifying patient information is private. HIPAA Compliance refers to following the proper set of rules and regulations according to the standards and requirements set forth by HHS policies or guidelines. Health records are to be secured, exchanged, and portable. Facilities and businesses must have HIPAA compliant hosting of data with physical and technical safeguards, technical policies, and network or transmission security.
• documented facility-wide employee education on the use and protection of confidential patient information
• policies and procedures in the facility manual and specific unit manuals
• signed Employee Privacy Acknowledgement statement
• written information for patients notifying them of Privacy and Confidentiality Practices
This information must be restricted to what is necessary for treatment. It is vital for all employees to understand the law regarding how it relates to their position, question/inform their employer of any issues, and monitor that patient privacy is maintained in the workplace.
Legal Nurse Consultants can analyze records to see if health care providers and facilities conducted the following compliance activities:
• create and track privacy procedures for the health care company
• direct HIPAA training to all personnel, confirming awareness of Federal and state laws, as well as the organization's privacy protocols
• employ a Privacy Official for overseeing the organization's privacy program.
• explain to patients the uses of their healthcare data
• notify patients about privacy rights
• secure patient's healthcare records and other private health information
– Elder abuse cases can include potential neglect and abuse in both nursing homes and assisted living facilities. Many elder abuse cases include witnessed or unwitnessed falls, pressure ulcers or deep tissue injuries, and possible departure from the facility. Elder abuse occurs in the senior's own home or that of a family member, in assisted living facilities and nursing homes.
There are many types of abuse, including:
• Physical - happens when someone causes bodily harm by hitting, pushing, or slapping elderly adults who are in their care.
• Emotional or psychological - includes a caregiver using hurtful language, shouting, intimidating, or continually disregarding the senior. Not allowing that person to see close friends and relatives is another form of emotional abuse.
• Neglect - occurs when the caregiver does not try to respond to the older person's needs.
• Abandonment - leaving a senior alone without planning for his or her care.
• Sexual - involves a caregiver forcing an older adult to watch or be part of sexual acts.
• Financial - associated with stealing money or personal belongings. Stealing includes forging checks, taking retirement or Social Security checks, using their credit cards or bank accounts. Also involved in financial abuse is making changes to a will, bank account, insurance policy, or home title without permission from the older person.
• Healthcare fraud - can be by doctors, hospital staff, and other healthcare workers. It includes overcharging, billing twice for the same service, falsifying Medicaid or Medicare claims, or charging for care not provided. Older adults and caregivers should keep an eye out for this type of fraud.
Any case where Health, Illness or Injury is an issue
Legal Nurse Consultants answer health-related questions from the legal team. We research all healthcare topics, helping the attorneys with health-related problems in any type of case.
• Americans with Disabilities Act
• bad faith litigation against insurance companies
• employer-employee relationships
• Family Leave Act
• healthcare professional board disciplinary actions
• insurance issues
• right to die
• school health
• sexual harassment
Other - Every time healthcare records are a part of legal action, the legal team must understand the whole picture. LNCs have experience in analyzing medical records. We confirm that attorneys are well-versed about any possible complications, so they are thoroughly equipped for trial.