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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As a college student we have all spent many hours laboring over term.  Hours of research were followed by many more hours of writing, and rewriting, and rewriting again.  Then more hours might be spent stretching the material into the minimum number of pages required.  Then to finish up the paper by citing the references appropriately would cause a sick feeling in the pit of my stomach and a panic as time was running out.

A legal nurse consultant one will be required to write regularly for their attorney clients.  That writing could be a report, a chronology, a timeline, letters, or even emails.  The writing style for the college professor is quite different that writing for an attorney.  The table below gives a quick summary of some of the differences between the two.

Both your professor and your attorney client are interested in clear writing that conveys information in a meaningful way.

Learn more about how to WOW your client by checking out this information about an all new webinar on how to polish your writing skills.

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When I am looking for a nurse expert or even a subcontractor, I am often amazed at how many nurses do not know the difference in a C.V. and a resume.  When it comes to locating a professional nurse, a curriculum vitae is expected.  My friend, Pat will go over the details of the CV as part of a new writing skills workshop along with many other tips, hints, tricks of the trade and things that make the attorneys say “Wow!”  Here is a few tips to whet your appetite.

1.      Choose between a resume and a curriculum vitae (C.V.). A resume is a brief (no more than 1-2 pages) summary of your educational and employment history. A C.V. is a longer and more detailed description of education, employment, awards, honors, publications, membership in professional associations, and offices held. To properly demonstrate expertise, legal nurse consultants and expert witnesses are more likely going to prepare a C.V.

2.      In your C.V., include the important and basic information. Don’t overlook adding your phone number and email, as well as an address.  Avoid adding extraneous details such as religious affiliation, names and ages of children, hobbies and interests.

3.      List each of your jobs in reverse order, starting with the most current job. Include the starting and ending years, the name of the employer, your title, and a brief description of your job responsibilities and accomplishments.

4.      Look at your background through the eyes of the attorney who is reviewing your credentials. Stress your clinical experience if you are seeking work as an expert witness. Avoid stating you serve as an expert, as this makes you look like a hired gun.  Avoid including education you completed to become a legal nurse consultant if you are seeking expert witness work, as this may make you look like a “legal nurse” rather than a “clinical nurse”.

5.      Design your C.V. to make good use of white space, bold, and serif fonts. For example, don’t crowd your C.V. by using a small font. Allow one inch margins all around. Place bold on the names of the places where you worked, and then unbold your job description and accomplishments. Use a serif font (with little feet) rather than a sans serif font. Serif fonts are perceived as friendlier. Avoid difficult to read fonts.

6.      Thoroughly proofread your C.V. and ask another person to check it as well. Typos on a C.V. can be enough to take you out of consideration for being hired. Check dates carefully. If you worked in more than one place during the same time frame, place (part time) after your position to help someone who is reviewing your C.V. understand the overlap. Otherwise, your overlapping dates may be seen as typos.

7.      Keep your C.V. current on an ongoing basis. It is far easier to produce an updated C.V. in a hurry than it is to have to make changes under pressure.

The one thing I would add is to always date your CV. This way if an attorney asks you something under oath about an item on your CV that is no longer relevant you can ask what date that CV has on it and compare with the current version. This is a tip also recommended by SEAK.

For more tips on writing resumes and C.V.s, and to learn how to WOW attorneys, check out this information about an all new webinar on how to polish your writing skills.  See this link for more details.

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My friend and legal nurse consultant buddy, Harry Breece is the owner of The Medical-Legal News.  This subscription based newspaper is chocked full of good information concerning the mediolegal industry.

The publication was begun by Dan Clifford.  He and his wife Rose established the publication to inform medical professionals about legal trends and attorneys about medical trends, and focus on where the two intertwine among the professionals.

Harry is offering a FREE TRIAL ISSUE! To get your free issue, email him and give your name and address and he will mail you a copy free of charge.  The newspaper is geared toward legal nurse consultants, healthcare professionals, and attorneys.  You can read about the latest interesting news on healthcare and legal-related issues and how they can impact your practice.

The newspaper offers research links to topics such as anatomy, clinical trials, chiropractic care, information on doctors, emergency services, expert witnesses, infectious disease, nursing home litigation, medical terminology, surgery, and even veterinary medicine!  The interviews and news of the day are my favorite parts.

Mr. Breece welcomes your ideas for topics or authors.  He also truly welcomes your feedback and suggestions as he strives to make this a better newspaper for every reader. If you have an event or meeting, email Harry and he will include it in the paper.

The paper has a website where you can review some examples of the excellent articles, interviews and columns you can find in every issues.  You can also subscribe via the web.  The subscription is for six bi-monthly issues.

Hurry before this offer runs out and be sure to tell Harry, I sent you!

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Legal nurse consultants often have questions about billable time. Billable time is generally considered work that is done to review or generate reports on a file. This includes organizing records, indexing, and reviewing records. It includes research on a medical issue and preparing a report. Phone calls to the client/attorney are billable. The time you spend creating an invoice is not billable time, as that is part of your overhead.

Billable time may be calculated in 6 minute, 10 minute or 15 minute increments. LNCs typically round up the time. For example, if you bill in 15 minute increments and start work on the file at 2:05 PM and stop at 2:17 PM, you’d round up to 15 minutes. The rounding up applies to the beginning and the end times, not each subsection of what you do. We had one subcontractor expert witness who misconstrued this concept, and rounded up every time for every segment of review. In other words, if it took her 4 minutes to review a document, she rounded up to 15. She picked up the next document, reviewed it for 7 minutes, and rounded up to 15. This resulted in huge and unreasonable invoices, and an angry expert who thought she should be paid for all of this padded time. We no longer work with this expert.

We use color coded billing sheets in our office. Our nurses record time on green sheets and support staff record time on pink sheets. The color coding helps with invoicing and locating billing sheets in a file filled with white paper.

It is easy to overlook 15 minutes here and there unless you are diligent in recording your time. The more meticulous you are in recording starting and ending time for billable work, the more money you will make.

These are just some of the tips that were covered in a webinar entitled, Negotiating Successfully to Collect Your Cash. Details on how to purchase this webinar can be found here.  If you want even more business tips on how to negotiate successfully to collect your cash, check out this new value kit offer.

Driven by the expense of health care and the media coverage of the dollar amounts of medical malpractice insurance paid by physicians and other health care practitioners, the environment for individuals who have legitimate cases is getting tougher.  This combined with highly publicized cases that paint the picture of plaintiffs as “con artists” can mean that patients who are fully within their rights to receive damages that will cover their costs of living as functional a life as possible, increasingly may not be awarded.

These facts make consultation with a Nurse Life Care Planner more important than ever when filing a suit for medical malpractice.  Below is an excerpt from “Kelly on Malpractice” which drives this point home:

The medical records of your client are always a potential great source for documented pain and suffering, both mental and physical. Another example is when the defendant calls a Life Care Planner to defend against your damages. These professionals are very ripe for demonstrating the significance of your client’s injuries. These professionals have seen first-hand the devastation caused by catastrophic injuries such as those experienced by your client. Rather than focusing on refuting their testimony minimizing the cost of your client’s future care, use them to educate the jury about the lifelong hardships your client must endure daily. Have them acknowledge and agree that catastrophic injuries have a major impact on the entire family and not just on the one that has been physically injured.

This is not meant to indicate that anyone who files suit is entitled to damages, but for those cases that truly have merit, the NLCP’s testimony can be a major tool for the client to get what he/she realistically deserves.

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Have you been involved in the litigation of a personal injury or medical malpractice case?  Are you pursuing compensation through our legal system for an injury you sustained?  If the answer is yes, this post is for you.  

So, what exactly is a deposition?  A deposition is a process of interviews that allows both sides of the case to “discover” what will likely affect the case based on the testimony of the witnesses, including potential experts.  Depositions will usually take place in an attorney’s office, in the conference room with a court reporter that will dictate the proceedings.  As an expert witness I have been involved in several depositions.  Most take place in a conference or other meeting room and are attended by both plaintiff and defense attorneys as well as the court reporter.

Instructions will be given to speak clearly and to avoid ‘umms’, ‘uh’s’, and ‘huh’s’ due to the fact that it makes reading the deposition difficult and distracting.   Instructions will also be given to avoid answering questions with nonverbal means, like nodding of the head or shrugging of the shoulders.  The court reporter has a difficult time translating the information if it is nonverbal in nature.  Be careful to wait until the complete question was asked before answering or the court reporter will have to interject your answer in mid question. 

The following are additional recommendations to keep in mind when you are in the deposition position:

1.  Listen to the instructions carefully.  If there is something you don’t understand, ask!
2. Take your time to answer the question.
3. Answer the question only.  Do not elaborate.  Keep it short!
4. If your attorney objects to a question, stop talking immediately.  Your attorney knows what is best for your case.
5. Don’t make jokes, use sarcasim or try to be cute!  That only implies that you are nervous and uncertain of your case.
6. Silence is golden!  Don’t fill the air with rambling or jokes….make them sweat it out for you.
7. Maintain eye contact.  It will show you are confident and that you cannot be intimidated.
8. Avoid getting angry!  If a question upsets you, don’t react from your gut.  Take a break!
9. Take a break!  This cannot be said enough.  You have a right to request a break at any point during the deposition.
10.  Attorney-client privilege.  What you say to your attorney stays with your attorney.  Don’t volunteer information.

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In an article by attorney Robert Ambrogi, featured at IMS ExpertServices, he asks, “Litigation is recession proof-but are experts?”  As any good attorney would, he states that the answer depends on whom you ask.  Ambrogi says that attorneys generally say that the economy has no real bearing on whether they hire an expert or not.  However, they may be watching the costs associated with experts more closely.

The Litigation Trends Survey (Published in October by Fulbright & Jaworski) finds confirmation that litigation is indeed recession proof.  The most recent survey indicated that 42 percent of American companies actually anticipate an increase in the number of legal disputes they will face during the coming year.  This is up from 34 percent for 2008.  More than one-third of these companies sited the economy as the number one reason for the surge in litigation.

When it comes to retaining experts, the attorneys are constrained by the need to meet the burden of proof and to advocate for their clients.  If a case requires expert testimony, an attorney should never skimp or else it could result in disservice to the client and could result in malpractice, according to attorney, Scott I. Fegley.  The economy does not change the burden of proof.

In my work as an expert in the field of Life Care Planning, I have found that the down economy has not decreased my work load at all.  In fact, it is quite the opposite at the present.  I have noticed a few requests for estimates on the time required to write a care plan, but the requests for services have not diminished.

How is the economy affecting your consulting business?  If you are seeing less work, please share your location as well.

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What a busy, busy season we are having.  It seems like all of the conference travel comes at once.  I have just completed an exhibit for the ATLA Personal Injury legal education committee.  Next is some exciting travel to places I have not yet visited.

July brings the 29th Annual SEAK National Workers’ Compensation and Occupation Medicine Conference in Cape Cod, Massachusetts.  I am especially excited about this conference because I never never been to New England and because I have never been able to attend this national conference.  I have heard wonderful things about the conference as well as SEAK.  I am planning a stop over in Martha’s Vineyard while I am there and recently downloaded a travel guide to the area for my Kindle.  I hope to have time to read all about the area before I leave.  Clam chowder anyone?

I just found out that the SEAK Expert Witness Conference is the two days following the Workers Compensation Conference.  I hope that I can stay and attend these two days as well.  Brandie…are you working on travel arrangements yet??

Since my son bought his Yamaha V-Star he and my husband have been taking an annual motorcycle trip.  Last year they visited the Grand Canyon, parts of Texas, Colorado, Kansas, Arizona and more.  This year they are inviting me to join a leg of their trip.  They plan to sight see along the southern coast taking in military tourism such as the naval museum in Pensacola as well as some submarine or something in Mobil, Alabama.  Not my idea of fun, however they have invited me to join them in Panama City Beach, Florida for their final destination.  I plan to fly in and visit with them for a short weekend “vacation”.  My husband lived in PCB for many years where he worked as an airbrush artist on the beach.  I am looking forward to seeing his old stomping grounds.  Doing so on the motorcycles makes it even more fun.

Then it is back to the grindstone for awhile.  Work must be fast and furious because October will soon be here.  October is a very busy month. The American Association of Nurse Life Care Planners will hold their annual conference in Denver, Colorado on October 9-12th.  I will be attending the conference and will also be hosting a poster presentation on social media marketing for the Nurse life Care Planner.

October is also the time for our Arkansas Workers’ Compensation Fall Forum.  This annual meeting is held in Hot Springs National Park at the historic Arlington Hotel.  The two day meeting, held on October 19th and 20th covers issues such as Medicare Set Aside allocations, ADA issues, FMLA, cost containment and more.  There are several panels discussions which are always popular.

October 24th is the date for the NNBA Annual Conference.  This conference of nurse business owners is so much fun and chock full of great information.  Yours truly will be a guest speaker at this year’s event in beautiful Daytona Beach, Florida.

October 30th brings another speaking engagement.  I have been asked to present to the Greater Orlando Chapter of the American Association of Legal Nurse Consultants at their annual meeting.  They have graciously asked that I speak to them about taking their business outside of the box.  I love seeing legal nurse consultants grow and prosper!

If you would like for me to speak to your group, please contact my assistant; Heather, and let her know what your needs are and how we can assist you.  What are your conference travel plans this year?  Are you headed to an exciting destination?  Are you staying on top of the changes in your area of expertise?

A state ban on allowing registered nurses to provide expert testimony has been overturned by the Pennsylvania Supreme Court. The impact of the decision may be limited because of 2002 legislation known as the MCARE Act which requires expert witnesses in medical professional liability cases to be a registered physician or a recent retiree. However Justice Debra Todd noted that MCARE does not apply to other cases, such as other professional liability cases or criminal cases.

Read in Law.com

And from Sullivan v. Edwards…

AANA persuasively reasons:

“A physician, who is not a nurse, is no more qualified to offer expert, opinion testimony as to the standard of care for nurses than a nurse would be to offer an opinion as to the physician standard of care. *** Certainly, nurses are not permitted to offer expert testimony against a physician based on their observances of physicians or their familiarity with the procedures involved. An operating room nurse, who stands shoulder to shoulder with surgeons every day, would not be permitted to testify as to the standard of care of a surgeon. An endoscopy nurse would not be permitted to testify as to the standard of care of a gastroenterologist performing a Colonoscopy. A labor and delivery nurse would not be permitted to offer expert, opinion testimony as to the standard of care for an obstetrician or even a midwife. Nor would a nurse be permitted to testify that, in her experience, when she calls a physician, he/she usually responds in a certain manner. Such testimony would be, essentially, expert testimony as to the standard of medical care.”

Scholars share this reasoning:

“Physicians often have no first-hand knowledge of nursing practice except for observations made in patient care settings. The physician rarely, if ever, teaches in a nursing program nor is a physician responsible for content in nursing texts. In many situations, a physician would not be familiar with the standard of care or with nursing policies and procedures which govern the standard of care. Therefore, a physician’s opinions would not be admissible in jurisdictions which hold the expert must be familiar with the standard of care in order to testify as an expert. An example of a common situation which gives rise to allegations of nursing negligence occurs when a nurse fails to follow the institutional ‘chain of command’ in reporting a patient condition to a physician who subsequently refuses to attend to the patient condition. It is unlikely that a physician would be familiar with the policy and procedure involved in handling such a situation. It is as illogical for physicians to testify on nursing standard of care as it would be for nurses to testify about medical malpractice.” E. Beyer & P. Popp, Nursing Standard of Care in Medical Malpractice Litigation: The Role of the Nurse Expert Witness, 23 J. Health & Hosp. L. 363, 365 (1990).

This scholarly insight has spread to litigators:

“Testimony from a physician about the standard of care may be subject to objection because the physician is not a nurse and does not have direct knowledge of nursing standards of care. A physician’s statement that he or she often observes nurses and therefore knows what they do may be inadequate.” P. Sweeney, Proving Nursing Negligence, 27 Trial 34, 36 (May 1991).

Beyond scholars and litigators, courts have begun to accept this reasoning.

In some jurisdictions, “the physician is no longer permitted to testify about the nursing standard of care since the physician is not a nurse and does not possess direct knowledge of nursing standards.” F. Cavico & N. Cavico, The Nursing Profession in the 1990′s: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557, 578 (1995); see Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (2001) (upholding trial court’s dismissal of nursing malpractice action where physician anesthesiologist was only expert to testify as to nurse’s standard of care); Vassey v. Burch, 45 N.C. App. 222, 226, 262 S.E.2d 865, 867 (“Although the affidavit of [the physician] may be sufficient to establish the accepted standard of medical care for a doctor in his office, it does not establish the standard of care for a nurse in a hospital”), rev’d on other grounds, 301 N.C. 68, 269 S.E.2d 137 (1980). According to one scholar:

“These cases represent a growing recognition on the part of courts that nursing, as a profession, has moved beyond its former dependence on the physician, and into a realm where it must and can legally account for its own professional practices. In doing so, the experts who provide the testimony, and the literature from which their opinions are derived, come from the nursing profession.” C. Kehoe, Contemporary Nursing Roles and Legal Accountability: The Challenge of Nursing Malpractice for the Law Librarian, 79 Law Libr. J. 419, 428-29 (1987).

Based on this reasoning, AANA argues that Dr. Barnhart should not be permitted to offer expert testimony against nurse Lewis based on his observation of nurses.

We agree. By enacting the Nursing and Advanced Practice Nursing Act (225 ILCS 65/5-1 et seq. (West 2000)), the legislature has set forth a unique licensing and regulatory scheme for the nursing profession. As AANA observes, under the nursing act, a person with a medical degree, who is licensed to practice medicine, would not meet the qualification for licensure as a registered nurse, nor would that person be competent to sit for the nursing license examination, unless that person completed an accredited program in nursing. See 225 ILCS 65/5-1 et seq. (West 2000). The appellate court in this case correctly reasoned:

“Dr. Barnhart is not a licensed member of the nursing profession. To allow the doctor to testify as to the standard of care applicable to the nursing profession implicates the risks raised by Dolan, namely, the imposition of a higher standard of care and the muddling and mixing of various tenets and practices unique to each profession.” 335 Ill. App. 3d at 272.

‘Nuff said!

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