For The Defense, November 2012 - DRI Today

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