For The Defense, November 2012 - DRI Today

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Medical Liability and Health Care Law Medical Malpractice Defense By Robert C. Rouwenhorst The Role of the Nurse Paralegal Finding an intelligent, curious nurse willing to assist in representing clients with excellence may leave a defense attorney wondering how his or her practice could ever function as effectively without that nurse paralegal. ■ Robert C. Rouwenhorst is the founder of Rouwenhorst & Rouwenhorst PC, with offices in West Des Moines and Council Bluffs, Iowa. He is a 20-year member of DRI. He practices as a trial and an appellate attorney with extensive experience defending medical malpractice cases involving physicians, nursing homes, hospitals, other professionals, and insurers in coverage litigation. Mr. Rouwenhorst lectures and writes on trial presentation strategies. 16 ■ For The Defense ■ November 2012
Attorneys who defend medical malpractice cases on a regular basis should strongly consider employing a nurse paralegal to assist in all facets of case preparation and a trial. A nurse paralegal enhances the ability of an attorney to defend a medical professional in a costeffective manner without sacrificing quality of representation. Generally, nurses who work for attorneys fall into one of two categories: (1) an independent contractor legal nurse consultant, or (2) a nurse paralegal who is a law firm employee. An independent contractor legal nurse consultant usually works on specific projects selected by an employing attorney, but this nurse generally does not provide comprehensive work on a case. Legal nurse consultants are often hired by plaintiffs’ attorneys. One example of a project commonly assigned to a legal nurse consultant is to create a chronology of the medical records and to comment on the medical care that someone received. In contrast, a nurse paralegal employed by a law firm generally works on most aspects of a case from the beginning of the case through a trial. This article will focus on the role of a nurse paralegal employed by a medical malpractice defense law firm, drawing from our work with them in our law firm. Qualifications Hiring an appropriate nurse paralegal is vital because that employee will perform a critical number of functions on a defense team. When hiring a nurse paralegal, some attorneys place primary emphasis on lengthy experience in nursing, including experience in particular specialties such as orthopedics, cardiology, or critical care. Other attorneys place primary emphasis on educational background, including completion of formal training in an accredited nurse- consultant certification program. These are not unreasonable criteria, but they may not be the best criteria for choosing a first-rate nurse paralegal for a law firm specializing in medical malpractice defense. Our firm’s position ranks three criteria as more important than specialty nursing experience or formal training when selecting a nurse paralegal. These three important criteria are (1) intelligence; (2) communication skills; and (3) curiosity. Intelligence Nursing experience in a particular specialty or formal certification in nurse consulting does not guarantee the intelligence necessary to be an effective nurse paralegal. An intelligent nurse paralegal can learn and acquire new skills. Experience and certificates fade, but stupid is forever. A nurse paralegal is constantly confronted with new medical questions, new responsibilities, and requests for creative input into defense strategies for cases. A highly intelligent nurse paralegal tackles new medical problems with confidence. He or she uses contacts with physicians and medical literature to understand problems. An intelligent nurse paralegal takes on new responsibilities and learns quickly how to perform new tasks. An intelligent nurse paralegal can provide creative input during the brainstorming that occurs to develop themes of a case and defense strategies. Our firm uses a number of informal and formal strategies to produce a variety of creative solutions to problems in defending a case. The primary informal strategy that we use is to communicate frequently with our nurse paralegals when we defend cases, both orally and in writing. One goal of these communications must be absolute candor. A nurse paralegal’s talents are wasted if he or she is reluctant to tell the attorney that he or she is headed down a wrong path. Intelligent themselves, most defense attorneys do not suffer fools gladly. Intelligence in a nurse paralegal, therefore, is critical. Brainstorming helps generate numerous potential creative solutions to a problem. One method is to write the problem on large pieces of paper taped to a wall. Each participant then independently writes as many solutions as possible on a piece of paper without criticism or evaluation at this stage. The goal is to generate as many solutions as possible. Each member of the group then receives two small stickers to place next to the two ideas that he or she thinks best solve the problem. The responsible attorney may or may not participate in this phase, which can skew the results. It becomes readily apparent through this process which solutions seem most viable to the participants. If desired by the responsible attorney, the group can evaluate the ideas further using one or more of several techniques. See, e.g., Edward DeBono, Six Thinking Hats, (1985). An intelligent nurse paralegal will generate more potential solutions and better potential solutions during this process than a less intellectually gifted one. Communication Skills A nurse paralegal spends considerable time communicating with clients, insurance company representatives, experts, paralegals, witnesses, medical record custodians, medical librarians, office personnel, and most importantly, the supervising defense attorney. Communications occur both orally and in writing. Proficiency in both is vital for a nurse paralegal to perform his or her functions with excellence. If a nurse paralegal lacks proficiency in communication skills, the nurse paralegal can wreak havoc in the effective defense of a case. Clarity of communication minimizes misunderstandings and maximizes efficiency. Our firm, as do many, takes the position that one of the most important aspects of providing an excellent defense is to keep the client and the professional liability insurance carrier fully informed of the progress of a case. Our firm scans all documents of any significance and saves a copy of each to our in-house computer network as well as to an off-site server. This enables the nurse paralegal and others in the firm to access documents from any location. The nurse paralegal and the supervising attorneys in our firm largely communicate with others outside our firm by e-mail rather than by sending paper. Thus, it becomes a simple matter for the nurse paralegal to send information copies of all important documents by e-mail to a client, to the insurer, and to the supervising attorney. In this way, everyone receives continuous updates on the status of a case. The attorney can then focus on communicating with the client and the insurer regard- For The Defense ■ November 2012 ■ 17
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