Long term care is a highly litigated area of health care. As a legal nurse consultant (LNC) without a clinical background in long term care, I had to educate myself on this specialty. The nursing tasks were familiar but the chart was not. As I worked on more of these cases, I came to rely upon a uniform set of documents that provided a good starting point for LTC case analysis: Minimum Data Set (MDS), Resident Assessment Protocols (RAPs) and the Care Plan. Starting my analysis with these documents gave me information on baseline function, skin condition, cognition and more. From there, I could wade through the piles of nurses’ notes, nursing assistant checklists and medication administration records looking for the details I needed to provide my clients with the meaningful tool they required to litigate the case.

History

In 1987, Congress passed the Omnibus Budget Reconciliation Act (OBRA). This legislation set specific standards for all Medicare certified skilled nursing facilities including a detailed assessment of the patient that was linked to their plan of care. What came out of this legislation was the Resident Assessment Instrument (RAI). Don’t let all the acronyms confuse you. The RAI standardizes communication regarding the person’s medical problems and conditions both within the LTC facility and to outside healthcare providers. The RAI enables the nursing home to track changes in a patient’s status and evaluate their individualized plan of care. So, you can see how the RAI is a great place to start a medicolegal analysis.

Specific Documents of the RAI

•     Minimum Data Set (MDS) provides a detailed assessment of the patient that is linked to that person’s individualized plan of care. The MDS includes information on people’s cognitive and functional abilities along with their physical condition. The MDS is a goldmine for a LNC. One of the best things about the MDS is consistency throughout all facilities in the United States. Of course, there is a twist to this. A revision of MDS – MDS 3.0 – was rolled out in late 2010 with an expanded section on skin conditions. It is critical to analyze cases according to the standard of care in place at the time of the alleged negligence. If the events took place in 2010, the new MDS 3.0 would not be applicable. Please refer to Angie Duke Haynes’ article devoted specifically to this new version of MDS.

•     Resident Assessment Protocols (RAP) is the next step in the RAI. Based on the MDS, certain protocols are triggered. Think of these as “problems”. Included in these protocols are risk factors that prompt care planning. A RAP summary is part of the MDS. It is a checklist and includes which RAPs are triggered, date of assessment documentation and where that document is located in the record, i.e. speech therapy note. Again, this form is consistent among all facilities in the U.S.

•     Care Plan – There is nothing new or different about a LTC care plan. Nurses in all specialty areas assess, plan, implement and evaluate based on the individual patient’s needs. The key in long term care is to review the care plan to ensure it is consistent with the MDS and RAP. As with all case analysis, the care plan is reviewed to ensure the nursing staff identified issues and appropriately provided interventions and evaluated those interventions.

Practice Pearls

•     Educate yourself if this is a new area of nursing for you. Utilize resources such as National Pressure Ulcer Advisory Panel (NPUAP), Agency for Healthcare Research and Quality (AHRQ) Clinical Practice Guidelines, RAI User’s Manual and The Long Term Care Survey. Be careful to use resources during the time for which the alleged negligence took place.

•     Compare the MDS to the RAPs and the care plan. Is the information consistent? Then compare the clinician progress notes including therapy notes. Note relevant inconsistencies in your analysis.

•     Were changes in function or cognitive status identified appropriately? Was the plan of care adjusted based on the change in status? Where is the evidence to support or refute the standard of care being met?

Written by Dana Jolly, BSN, RN, LNCC, is Principal of Jolly Consulting, LLC.

To learn more about these specialty documents and to create your own long term care case analysis, please join Angie Duke Haynes, Pat Iyer and Dana for a multimedia course on writing skills and long term care case analysis on February 1 and 8, 2012.

Check out details for the Polish Your Writing Skills Multimedia Course and other helpful resources here.

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As an independent legal nurse consultant, with over a decade of experience who has reviewed dozens of expert cases and thousands of “behind the scenes” cases and provided deposition and trial testimony, I believe that one of the most important duties of a LNC is to provide the attorney all the evidence used to support your opinions.

Communicating this evidence can be accomplished in various ways. Here are some examples of nursing home cases in which I used case specific information, other than nursing or physician notes to support my opinions.

1. Physical and Occupational Therapy Notes:
My first trial testimony involved a nursing home patient who became trapped in the side rails and was strangulated. As a plaintiff expert, I opined that the patient was not an appropriate candidate for side rails from the very beginning. The nursing staff
documented that she used the side rails to assist in turning and positioning. The nursing and nursing assistant documentation was inconsistent about the resident’s ability to turn in the bed. The nurses and aides described her on a continuum from completely independent to requiring extensive assistance to being totally dependent.

In this case, I relied heavily on the physical and occupational therapy notes as they treated the resident five times weekly for a period of months prior to her death. This documentation consistently showed the resident was unable to use the side rails to her benefit; she required total assistance to turn and position in bed. After reviewing page after page of therapy notes in the courtroom, the judge asked how many more examples were left. When I indicated we were just getting started, the judge stated he had seen enough evidence. This case resulted in a plaintiff verdict.

2. Flow Sheets: In one case, I heavily relied on the ADL Flow Sheets as they consistently showed the resident was eating less than 50% of most meals and refusing supplements without appropriate nutritional intervention. In another case, a neurological assessment flow sheet clearly documented a resident’s change in condition over a 12-hour period after a fall including unequal pupils, left-sided
weakness, and a severe headache. Yet, despite these obvious changes, there were no nursing interventions until the patient was found obtunded early the next morning. He expired soon after arriving to the hospital.

3. Facility Policies: Sometimes supporting evidence is not found within the medical record itself. The information needed to support your opinion may be found in the facility’s policies and procedures or other internal documentation tools. I once had a choking case in which a patient who was prescribed a mechanical soft diet choked on cooked carrots and asphyxiated. The autopsy report was very specific; it described the size of each piece of food removed from the pharynx. Each piece measured approximately ¾ inch x ¾ inch. The facility’s policy for mechanical soft diets was equally specific, noting foods must be cooked and chopped no larger than ½ inch x ½ inch. Bingo! That case quickly settled out of court.

4. 24 Hour Reports: Likewise, defense cases have been quickly put to rest due to good nursing documentation. In one case the nursing staff was cleared of negligence by their documentation of specific information communicated to the physician on the 24 hour report.

5. Incident Reports: Incident reports can be obtained by the plaintiff attorney in certain cases. When the incident report is referenced in the medical records it opens the door to retrieving the document. In a frequent fall case, my review of the incident reports revealed the batteries in the chair/bed alarm were dead on one occasion; twice the unit was turned off; and in yet another fall the alarm was not in use. This helped to prove negligence of the nursing staff.

The above described examples are from nursing home cases. The upcoming webinar, Polishing Your Writing Skills, involves an actual nursing home case study. During this webinar, participants will review this interesting case which involves a young gentleman who aspirated and died. We will discuss the critical and supporting information found within the medical record and will show you how to document the evidence to support your opinion(s) so that the attorney receives a concise
report that clearly shows where the supporting evidence can be found in the chart and why that evidence is important to the case. A well written report that includes supporting evidence will be used by the attorney throughout the litigation process.

Authored by: Angie Duke-Haynes
Ms. Haynes is a registered nurse and President of Premier Medical Legal Consulting, LLC, as well as the co-owner of Legal Nurse Consulting Institute, LLC. She is one of the presenter for the all new multimedia webinar course on polishing your writing skills.

For details on the Polish Your Writing Skills multimedia course, check out the website.

The National Nurse Act of 2011 proposes an amendment to the Public Health Service Act for the purpose of establishing a National Nurse for Public Health. If the Act is passed, the current Chief Nurse Officer (CNO) of the Public Health Service will become the National Nurse for Public Health, promoting the former CNO position to a rank and grade equivalent to that of the Deputy Surgeon General.

Under this Bill, the National Nurse for Public Health will be responsible for identifying and coordinating public health priorities within the Office of the Surgeon General. The National Nurse will be responsible for bringing initiatives such as Healthy People 2020 to the attention of communities, organizations, and the public as a whole. As a leader in the Public Health Service division, the National Nurse will serve as a guiding force to advance the nursing profession in areas including research, recruitment, and career development.

One of the ways you can help to make the National Nurse become a reality is to contact your legislators and ask for their support to help pass H.R.3679.IH. Please remember, the National Nurse Act is non-partisan. 

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Who’s to Blame for IV Start That Caused Patient’s Nerve Injury?

Technicality spares hospital and nurse who inserted the needle.

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Tips for Improving Your Writing Skills
1. Do a lot of reading. Sit with a book either in paper form or on an electronic reader like a Kindle or Ipad. Notice how the author forms sentences. Do the words flow? Exposure to good writing of people who are fluent in the language improves your skills. Conversely, reading poorly written material is painful.

2. Write a report or essay. Set your material aside for a day and then proofread and edit it. Look for places where you can compress the sentences, improve word flow, and improve clarity.

3. Ask someone with good writing skills to be a copyeditor to help you improve. A copyeditor improves word flow, in addition to proofreading. A copyeditor will take your material and rearrange it so that it flows better. This person improves the language, grammar, and word usage.

4. Study how the copyeditor changed your material. Incorporate those changes into your writing style.

5. Take a writing course or an English writing composition course at a local community college or local college, or audit the course if you don’t want to take it as a matriculated student.

6. It is important to remember you can always improve. Learn from others’ writing or critiques of your writing. Develop a thick skin and graciously accept criticism so you can learn from it.

7. Read books on writing. One of my favorites is Eats Shoots and Leaves by Lynne Truss, a truly funny book about grammar. Also read The Language of Success by Tom Sant or Plain Style: Techniques for Simple, Concise, Emphatic Business Writing by Richard Lauchman.

Patricia Iyer MSN RN LNCC has been a legal nurse consultant for 24 years. She i

s president of Med League Support Services, Inc. and Patricia Iyer Associates. She is the author or editor of over 125 books, chapters, articles case studies, and online courses. Along with Dana Jolly and Angela Duke Haynes, she is presenting a webinar multimedia course called Polish Your Writing Skills on February 1 and 8, 2012.

You can fulfill tip number 5 by signing up here.

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Mr. Gerry Schulze, local Little Rock attorney, represented Ms. Teresa Broussard in a challenge to a section of the Civil Justice Reform Act of 2003 last week.  The Supreme Court has not yet given their ruling in this most interesting case.

Ms. Broussard developed severe burns to her neck and upper chest after undergoing a surgical procedure in 2006.  The cause of the burns is unknown.  The case involves the treatment for the burns once they were identified.  Broussard alleges that her physicians; a nephrologist and surgeon were negligent in failing to care for the burns or to seek a burn specialist.  The attorney’s for the physicians asked the judge to dismiss the case on summary judgment. Their argument was that Dr. Baker was not qualified under Arkansas’ Civil Justice Reform Act because he was not of the “same specialty.”  The expert witness, Dr. Terrence Baker, is certified in family practice, geriatrics, emergency medicine and forensics.

The Civil Justice Reform Act of 2003 requires that an expert witness practice in the same specialty as the defendant in a medical malpractice case. The Sebastian County Circuit Judge ruled that this requirement had not been met and therefore dismissed the suit. Mr. Gerry Schulze argued that several portions of the 2003 law have been ruled unconstitutional and that the same specialty requirement for expert witnesses should also be struck down.

I am no attorney, but the part I was most interested in seeing was Mr. Schulze’s argument that the specialty of Mr. Baker was irrelevant in this case because “anybody in a hospital with ‘M.D.’ after his name … ought to know that if he sees a patient with a burn like this, his obligation is to find a burn specialist.”  Not only any physician, but a nurse should have also recognized the need for burn treatment and sought orders for the same.

You can read more about this case and the particulars on Mr. Schulze’s blog in the Times Record,or Arkansas News.

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“A rule allowing only MDs and DOs to serve as independent medical examiners in workers’ compensation cases has been declared unconstitutional by the Supreme Court of Oklahoma.

The provision, enacted as part of an August 2011 workers’ compensation law, prevented chiropractors, dentists, optometrists and others from acting as qualified examiners in such cases. It also prohibited them from testifying as experts in workers’ comp cases.”

To read more about this Oklahoma Supreme Court ruling, check out the American Medical News.

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Legal Nurse Consultants bring value through their work product. Will an attorney judge you by your ability to write? You better believe it! You will not be able to get your foot in the door unless you can present yourself in a professional manner. You won’t get chosen over your competitors if you don’t shine in the one chance to show your value to your clients. Making a lasting impression can turn a one time client into a customer for the lifetime of your business.

One of my pet peeves is hiring subcontractors who can’t write professionally. I hire nurses to help me with the work load, but then I end up rewriting their reports because they are so poorly composed that I refuse to allow it to go out from this office. If I am constantly rewriting the reports, what help was the nurse contractor?

Check out this interactive multimedia course, Polish Your Writing Skills,scheduled for Feb. 1 and 8, 2012. There will be three sessions between 11 AM and 5 PM on Feb. 1 with a follow up session from 8 to 9 PM on Feb. 8. Experienced LNCs Dana Jolly, Angie Duke Haynes and Pat Iyer will present the course.  The attendee will review records of a medical malpractice case and be guided by experts through the process of case analysis to develop your own detailed comprehensive report. You will learn how to avoid common mistakes and hone your analytical skills to produce a report that your client will depend on throughout the litigation process. Never leave your home or office. All you need is a computer.

All course participants receive access to the multimedia course, digital downloads of medical records and course recordings, transcripts of each session, and 10 bonus articles.
The early bird price for the course is just $127.   In addition to the course itself, an optional critique can be added plus bonuses to make any legal nurse consultant more confident when writing reports. Visit this website for all the details. The early bird registration expires on Monday, January 16 so hurry and register s

This year’s update, from a Nov. 28-Dec. 1 Gallup poll, finds Americans rating the honesty and ethical standards of 3 medical professions — nurses, pharmacists, and doctors — the highest of the 21 professions tested. Americans are as positive as they have ever been about those in medical professions, though the public has always held doctors, nurses, and pharmacists in high esteem.

At the other end of the spectrum, Americans give the least positive honesty and ethics ratings to members of Congress, lobbyists, car salespeople, and telemarketers.  Sixty-four percent of Americans rate the honesty and ethical standards of members of Congress as “low” or “very low,” tying the record “low”/”very low” rating Gallup has measured for any profession historically.

Congress is the only profession that established a new low rating for the profession this year. In contrast, the 84% of Americans who rate the honesty and ethics of nurses as very high or high this year is tied for the highest rating nurses have received.

See the poll and read additional information at Gallup.com

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