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Why Use A Legal Nurse Consultant?
By: Kathleen Martin |
The attorney should seek the assistance of a qualified LNC because of the nursing and healthcare experience that gives the LNC the ability to determine whether a breach of the standard of care has occurred for his particular case. The LNC needs to be knowledgeable in the standard of care, the nurse scope of practice and the Nursing Practice Act, as well as the state and federal laws and regulations specific to the healthcare setting in which the alleged injury occurred. The LNC should be capable of providing the attorney with a succinct definition of the standard of care as well as his or her source(s) for that definition. Examples of some standards that may be used are the Federal OBRA/CMS standards used in Long Term Care, Joint Commission on Healthcare Accreditation, Department of Health and Senior Services by State, American Nurses' Association, Wound Care Society, and many more. A CPHQ is a prestigious credential designated by the National Association of Healthcare Quality, and represents a Certified Professional in Healthcare Quality. This credential is required in hospitals for jobs in quality and or risk management and is sought after by top organizations.
The services of the LNC are particularly useful in the area of elder abuse. The medical records may be voluminous, as they can come from a multiple of healthcare settings and can cover an extended period of time. Long-term care facilities are subject to a tremendous amount of regulations that dictate their necessary documentation and cause the medical records to be complicated and very lengthy. The LNC, who is acquainted with the regulations, can efficiently review and assess whether the standard of care, the Nursing Practice Act, or the state and federal laws and {OBRA} regulations were or were not breached. The LNC can save the attorney time and money by utilizing his or her experience and knowledge to competently perform the medical record review and analysis of the care provided, thereby allowing the attorney and the attorney's staff the time to practice law. Although Physicians may also review cases for merit and provide similar services, they are no doubt, much more expensive on an hour to hour comparison, and cannot know the nursing standards or nursing standard of care.
As registered nurses practicing within the realm of healthcare, we have been the "champions of the elderly" as the advocates of this group of patients. However, increasingly, nursing and other healthcare professionals, along with healthcare and community care facilities, have come under scrutiny by families and the legal profession making allegations of elder abuse. These allegations are aimed at those individuals and facilities that historically have been seen as the advocates for the elderly.
It is important to understand that the basic service provided by the acute care hospital and the skilled nursing facility is skilled nursing care. Nursing care is provided in addition to the medical services required by the person admitted as a patient in an acute care hospital or resident in a skilled nursing facility. Therefore, issues of negligence and the standard of care within the hospital or skilled nursing facility generally encompass the nursing care and services provided to the client. The seasoned LNC knows the scope within which he or she can opine and stays within the scope of nursing. Allegations of malpractice committed by other healthcare professionals need to be addressed by experts in that specific profession and not by the LNC.
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 services 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 strengths and weakness 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, IVs, and medications to name a few areas that LNCs are well versed in and can provide much case direction.
Kathleen Martin, has extensive experience in health care with 20+ years experience in Acute-Care Hospital where she specialized in Critical Care Nursing and an additional 12 years as a Long Term Care Director of Nursing and Administrator. Ms. Martin was responsible for the oversight of nursing and clinical operations of 7 Long Term Care facilities in NJ for an LTC Management company.
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