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