Medical Records. In litigation today, those two words can change significantly the potential monetary exposure for your client. Whether you are a pharmaceutical company or an automobile manufacturer, whether your case revolves around products liability or toxic tort, medical records have the potential to significantly raise the stakes. You and your outside counsel need to understand what they say and what they mean in terms of liability before you can begin to form an effective strategy.
For years, attorneys and outside experts tackled this task. It was expensive and time consuming and until recently, there were few alternatives. Fortunately, the landscape is changing as more and more companies are looking for ways to control litigation costs. These changes are not just technological advances. There is a new breed of quasi-legal professional emerging that can drastically reduce the expense of reviewing medical records without sacrificing quality. These new professionals are legal nurses - and they are taking on work previously reserved for doctors and lawyers and saving their clients thousands of dollars in the process.
We will explore what qualifications you should consider; the types of assignments that are ideally suited to nurses; the reasons to consider turning to a nurse the next time you need help with a medical record review; and where to turn once you have decided to hire nurses.
Depending on what you choose to have nurses do, you can decide whether you need a Legal Nurse Consultant (LNC), a Nurse Paralegal, or simply a nurse. Many nurses entering the legal field consider themselves LNCs; some have received a certification to that effect. Others refer to themselves as Nurse Paralegals. Still others are practicing nurses who have never worked in a legal context but are eager to put their medical background to work in a legal setting. Is there a difference? What should you look for?
Registered Nurses. Registered nurses (RNs) with several years of clinical/practical experience are excellent candidates for medical record review. They can decipher most doctors' notes, translate medical abbreviations into plain English, and give an overview of what the records say. Most are comfortable providing an initial assessment regarding whether the records reflect an appropriate medical standard of care.
Nurse Paralegals. Nurse paralegals are typically nurses who have attended a paralegal training program. Many colleges and universities are training nurses who are seeking to change careers and offer paralegal certificates or bachelor's degrees in paralegal studies; several of these programs have been approved by the American Bar Association (ABA). To pursue this specialty of paralegal education, most institutions have minimum nursing requirements for students, i.e., 2000 hours as a practicing nurse.
Because of the legal training, many nurse paralegals are able to perform traditional paralegal tasks as well as functions related to medical record review, including cite checking, legal research, interviewing clients, and drafting court pleadings and legal documents.
Legal Nurse Consultants. Nurses interested in working in the legal community can do so as an LNC. Many join the American Association of Legal Nurse Consultants (AALNC) and work toward becoming "certified" (Legal Nurse Consultant Certified (LNCC)). The American Board of Nursing Specialists has accredited a certification program for the AALNC. To become certified, a nurse must have 1) current licensure as a registered nurse in the United States or its territories, with a full and unrestricted license; 2) a minimum of five years' experience practicing as a registered nurse; and 3) 2000 hours of legal nurse consulting experience within the past three years. Once all of these criteria are met, the nurse is tested on his or her knowledge and is certified upon successfully passing the test. Neither the test nor the certification is approved or sanctioned by the ABA.
There are a variety of additional programs that offer certifications and many of these graduates call themselves Certified Legal Nurse Consultants (CLNCs), not to be confused with LNCCs. CLNCs complete coursework to obtain a certificate, but these individuals are not "certified" under the AALNC's guidelines.
LNCs do not consider themselves paralegals and have not had paralegal training. They use their medical knowledge to assist on cases and the more legal experience they acquire, the more valuable they can become in quickly analyzing a case from not only a medical perspective, but a legal perspective as well. Some LNCs consider themselves experts and will provide deposition testimony or testify in court.
Which Do You Need?
Out of the three categories of legal nurses, the individual you select depends on what you need to have done. The rates can vary enormously. Be careful that you are not paying for a service that you are not getting. The rates for registered nurses and nurse paralegals begin at $50 an hour, while rates for an LNC range from $100 an hour to as much as $250 an hour. Many charge extra for testifying in depositions or in court, consulting with experts, and attending medical examinations.
If you are looking for an individual to do an in-depth analysis of your records and other consulting services, an LNC's fee may be appropriate. However, if you simply need a nurse to translate the records or assemble medical chronologies, nurse paralegals and registered nurses are qualified to do the work and are much more cost effective. Because of this, many LNCs are willing to negotiate reduced fees rather than lose the work.
Legal Nurse Capabilities
Translating Medical Records. Nurses are an excellent resource for reviewing medical records and translating them into layman's terms. The abbreviations and terminology used by doctors and nurses can take hours for lawyers and paralegals to translate, while nurses can review the same document quickly and accurately. The note "Aerobid qid" means nothing to most people, but after a nurse translates it, it becomes "inhale medication four times a day."
Chronologies. Non-medical documents produced in litigation must be organized and mapped if the legal team is to have any hope of easily searching and retrieving the documents that they need; the medical records produced are no different. Chronologies are the easiest way to see a patient's full medical history, regardless of how the documents were produced. Nurses can draft a chart or timeline that captures providers, treatments, prescriptions, symptoms, or any other criteria you would find useful. This is tremendously helpful and provides a snapshot of the individual's history without having to refer back to the voluminous records.
Summaries. Narrative medical summaries vary in length and can be as brief or as comprehensive as required. At a minimum, nurses summarize the patient's history and the claimed injury as it relates to the incident at issue. More detailed analysis can include the identification of important facts as well as the detection of records that appear to be missing. Some summaries even reference medical literature and identify potential questions for future discovery requests.
Claims Assessment. When your client finds itself with a number of claimants making similar allegations, the risk of liability can balloon overnight and strategies must be made quickly. As counsel, you need to weigh the risks and rewards of whether to settle or litigate. Legal nurses can assist in preparing matrices designed by the legal team that can then provide statistical analysis on the claims. For example, a matrix can reduce 2000 claimants' medical records down to the essential information regarding how many claimants used the product without incident, how many had minor injuries, and how many were seriously injured. Attorneys and experts can then use the matrix in assessing the values of the 2000 claims and create an appropriate litigation/settlement strategy. Bayer's handling of the Baycol litigation employed a similar model with apparently tremendous success and other companies are following suit.
Benefits Of Using A Legal Nurse
There are three major advantages in using legal nurses - Cost, Speed, and Accuracy.
Cost. Your arguments in court often hinge on the credibility of doctors, toxicologists, pharmacologists, and other medical professionals testifying on your client's behalf. These professionals come with a hefty price tag. For years, experts were automatically sent any and all documents that might be pertinent to their testimony. Often the medical records included documentation that was not even relevant, but the attorneys allowed the medical experts to make that determination. Consider utilizing legal nurses in conjunction with, not in lieu of, medical experts. Just as paralegals tackle time-consuming tasks where an attorney's training is not necessary, nurses can perform a similar function for your experts. By utilizing nurses to identify critical documents and eliminate the irrelevant ones, you are streamlining the process for your expert. Expert rates should be reserved for the credentials you hired them for, not for wading through irrelevant records.
Speed. Your outside counsel may already be conducting an initial assessment of the medical records prior to sending them to your experts. They probably are not using nurses; they are probably using associates and/or paralegals. While these individuals may be capable of reviewing the records, they are not likely very efficient. Unless the attorneys and paralegals have a medical background, they may spend more time looking up medical terms and abbreviations and researching certain medical procedures than determining what is relevant. This is far more time-consuming than using a nurse who already has this knowledge.
Accuracy. Legal nurses understand how medical procedures and testing work, including why certain tests are ordered, not ordered, or inappropriately ordered. They can identify where and when procedures have gone right or wrong. He or she can decipher doctor's orders and prescribed medications without regularly turning to medical dictionaries and reference material. Not only are they accurate in their review of the materials, they can see inaccuracies in the records that someone without medical training may miss.
Finding Legal Nurses
From LNC businesses owned and operated by individual LNCs to staffing providers with full outsourcing capabilities, there are a number of companies who can assist you with medical record reviews. This is a young industry, so be cautious as you determine who is qualified to handle these materials and who is not.
When hiring an outside vendor, consider asking some key questions to make sure the agency you choose understands your needs. Does the company screen candidates for medical experience, while understanding the legal environment where the candidate will work? How big is the company? Do they have the resources to complete the work that you require, either in providing a pool of qualified nurses at your site or by managing the work internally? Does the company carry professional liability insurance? If the documents are leaving your facility, will they be maintained in a secure environment? Are the rates clearly defined at the start of the project? Do the fees reflect the level of work you are asking to have done?
Companies who are committed to providing legal nurses and medical record review resources should be able to answer these questions to your satisfaction. This industry will continue to grow as companies seek effective ways to handle cases involving medical claims. Legal nurses have already grown in popularity in recent years and the trend is expected to continue for the foreseeable future.