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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Medical Liability and Health Care Law<br />
ing significant matters in a case knowing<br />
that they have received copies of documents<br />
that are under discussion. With the<br />
attorney and the nurse paralegal continuously<br />
sending each other copies of significant<br />
e-mails, the left hand knows what the<br />
right hand is doing.<br />
Communicating electronically is not<br />
enough, though. In our firm, the nurse<br />
An intelligentnurse<br />
paralegal can provide<br />
creative input during the<br />
brainstorming that occurs to<br />
develop themes of a case<br />
and defense strategies.<br />
paralegal’s office is located in close proximity<br />
to his or her primary supervising<br />
attorney. Thus, the day is frequently punctuated<br />
by face-to-face discussions about<br />
some aspect of a case. <strong>For</strong> a brief period,<br />
our firm’s nurse paralegal and her primary<br />
supervising attorney were located on different<br />
floors. This significantly impeded<br />
communication. Also, for a time, our firm’s<br />
nurse paralegal moved to another state and<br />
telecommuted. This impeded communication<br />
significantly. Easy and frequent faceto-face<br />
communication between a nurse<br />
paralegal and the supervising attorney is<br />
critical to producing an excellent defense.<br />
Empathy and understanding in communication<br />
encourages openness from all the<br />
persons with whom a nurse paralegal interacts.<br />
Ideally, a client, the experts, and others<br />
involved in the defense of a case in some<br />
way should feel just as comfortable talking<br />
to a nurse paralegal as they feel talking<br />
to a defense attorney. Furthermore, a<br />
nurse paralegal usually is more accessible<br />
than a defense attorney who has obligations<br />
in court, depositions, and other<br />
matters that can limit a defense attorney’s<br />
ability to immediately talk to a client or<br />
others. A nurse paralegal then serves as<br />
an immediate contact and often can provide<br />
information in a timely manner when<br />
18 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
someone requests it. A client, experts, and<br />
others take considerable satisfaction from<br />
this immediate availability. It eliminates<br />
telephone tag and conserves the time of a<br />
defense attorney so that he or she can deal<br />
with matters requiring his or her legal<br />
expertise. A nurse paralegal, because of<br />
his or her background, is uniquely suited to<br />
serve as an attorney’s “user- friendly interface”<br />
for medical professional clients.<br />
Curiosity<br />
A nurse paralegal who is curious educates<br />
him- or herself in areas of both medicine<br />
and the law. Such a nurse paralegal remains<br />
genuinely interested in the cases at hand.<br />
When we first hired her, one nurse paralegal<br />
who our firm employs, without being<br />
asked, read through the active case files to<br />
both learn about medical malpractice law<br />
and to become familiar with the facts and<br />
issues involved in the pending cases. That<br />
nurse paralegal remains a vital member of<br />
our firm’s defense team 19 years later.<br />
A nurse paralegal who is curious will<br />
search beyond the minimum requirement<br />
when his or her supervising attorney asks<br />
him or her to research something. Such<br />
a nurse paralegal is likely to provide the<br />
attorney with not just the answer to his or<br />
her question, but also information that is<br />
relevant to a case that the attorney did not<br />
ask him or her to research. Because of his<br />
or her understanding of medicine, a nurse<br />
paralegal is often in an excellent position to<br />
know the issues that a defense team should<br />
research, sometimes better than the supervising<br />
defense attorney.<br />
Mutual Education<br />
A nurse paralegal is trained in nursing and<br />
sees problems from a medical perspective.<br />
Although a nurse paralegal is not a physician,<br />
many have sufficient experience<br />
with physicians and training in medical<br />
terminology, algorithms, and heuristics<br />
to “think like physicians.” See, e.g., Stuart<br />
B. Mushlin & A. Harry L. Greene II, Decision<br />
Making in Medicine: An Algorithmic<br />
Approach (2010). An attorney is trained in<br />
the law and consequently sees problems<br />
from a legal perspective.<br />
Until an attorney has significant experience<br />
in the defense of medical malpractice<br />
cases, it is unlikely that he or she will<br />
find it easy to “think like” a physician. Until<br />
a nurse paralegal has significant experience<br />
in the defense of medical malpractice<br />
cases, it is unlikely that he or she will find<br />
it easy to “think like” an attorney. Ideally,<br />
by working together, the attorney gains<br />
growing understanding of medicine from<br />
the nurse paralegal and the nurse paralegal<br />
gains growing understanding of the law<br />
from the attorney.<br />
Case Management<br />
In our firm, after passing a conflict check,<br />
when a new case is assigned to our firm by<br />
an insurer, unless told otherwise, the supervising<br />
attorney and the assigned nurse<br />
paralegal both assume that the case will<br />
reach a trial and prepare the case accordingly.<br />
<strong>The</strong> nurse paralegal is normally involved<br />
in all aspects of case preparation.<br />
<strong>The</strong> nurse paralegal adds the descriptive information<br />
regarding the case to our “case<br />
status report,” which is stored in Microsoft<br />
Excel. This is an internal document that<br />
functions as a “to do list” regarding tasks<br />
that the supervising attorney and the nurse<br />
paralegal must undertake within the next<br />
few months. <strong>The</strong> nurse paralegal transfers<br />
the individual tasks to the respective electronic<br />
calendars of the supervising attorney<br />
and of the nurse paralegal with completion<br />
dates. <strong>The</strong> nurse paralegal is familiar with<br />
deadlines unique to medical malpractice<br />
cases so nobody misses important deadlines,<br />
and the supervising attorney and the<br />
nurse paralegal prepare the case in a proactive<br />
rather than a reactive manner.<br />
<strong>The</strong> nurse paralegal and the supervising<br />
attorney meet on a regular basis to discuss<br />
the “case status report” and the necessary<br />
case preparation tasks. As a case progresses,<br />
the nurse paralegal updates the<br />
“case status report” to include such items<br />
as the initial meeting with the client; fact<br />
investigation required as a result of the<br />
meeting; possible case themes; defenses<br />
to the plaintiff’s petition or complaint;<br />
propounding discovery to the plaintiff;<br />
responses to discovery from the plaintiff;<br />
the detailed medical chronology; expert<br />
identification and retention; deposition<br />
scheduling; deposition preparation; record<br />
acquisition; discovery summarization; and<br />
written reports to the insurer. <strong>The</strong> supervising<br />
attorney and the nurse paralegal keep<br />
the client and the insurer fully informed as<br />
the case progresses.