For The Defense, November 2012 - DRI Today

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Medical Liability and Health Care Law ing significant matters in a case knowing that they have received copies of documents that are under discussion. With the attorney and the nurse paralegal continuously sending each other copies of significant e-mails, the left hand knows what the right hand is doing. Communicating electronically is not enough, though. In our firm, the nurse An intelligentnurse paralegal can provide creative input during the brainstorming that occurs to develop themes of a case and defense strategies. paralegal’s office is located in close proximity to his or her primary supervising attorney. Thus, the day is frequently punctuated by face-to-face discussions about some aspect of a case. For a brief period, our firm’s nurse paralegal and her primary supervising attorney were located on different floors. This significantly impeded communication. Also, for a time, our firm’s nurse paralegal moved to another state and telecommuted. This impeded communication significantly. Easy and frequent faceto-face communication between a nurse paralegal and the supervising attorney is critical to producing an excellent defense. Empathy and understanding in communication encourages openness from all the persons with whom a nurse paralegal interacts. Ideally, a client, the experts, and others involved in the defense of a case in some way should feel just as comfortable talking to a nurse paralegal as they feel talking to a defense attorney. Furthermore, a nurse paralegal usually is more accessible than a defense attorney who has obligations in court, depositions, and other matters that can limit a defense attorney’s ability to immediately talk to a client or others. A nurse paralegal then serves as an immediate contact and often can provide information in a timely manner when 18 ■ For The Defense ■ November 2012 someone requests it. A client, experts, and others take considerable satisfaction from this immediate availability. It eliminates telephone tag and conserves the time of a defense attorney so that he or she can deal with matters requiring his or her legal expertise. A nurse paralegal, because of his or her background, is uniquely suited to serve as an attorney’s “user- friendly interface” for medical professional clients. Curiosity A nurse paralegal who is curious educates him- or herself in areas of both medicine and the law. Such a nurse paralegal remains genuinely interested in the cases at hand. When we first hired her, one nurse paralegal who our firm employs, without being asked, read through the active case files to both learn about medical malpractice law and to become familiar with the facts and issues involved in the pending cases. That nurse paralegal remains a vital member of our firm’s defense team 19 years later. A nurse paralegal who is curious will search beyond the minimum requirement when his or her supervising attorney asks him or her to research something. Such a nurse paralegal is likely to provide the attorney with not just the answer to his or her question, but also information that is relevant to a case that the attorney did not ask him or her to research. Because of his or her understanding of medicine, a nurse paralegal is often in an excellent position to know the issues that a defense team should research, sometimes better than the supervising defense attorney. Mutual Education A nurse paralegal is trained in nursing and sees problems from a medical perspective. Although a nurse paralegal is not a physician, many have sufficient experience with physicians and training in medical terminology, algorithms, and heuristics to “think like physicians.” See, e.g., Stuart B. Mushlin & A. Harry L. Greene II, Decision Making in Medicine: An Algorithmic Approach (2010). An attorney is trained in the law and consequently sees problems from a legal perspective. Until an attorney has significant experience in the defense of medical malpractice cases, it is unlikely that he or she will find it easy to “think like” a physician. Until a nurse paralegal has significant experience in the defense of medical malpractice cases, it is unlikely that he or she will find it easy to “think like” an attorney. Ideally, by working together, the attorney gains growing understanding of medicine from the nurse paralegal and the nurse paralegal gains growing understanding of the law from the attorney. Case Management In our firm, after passing a conflict check, when a new case is assigned to our firm by an insurer, unless told otherwise, the supervising attorney and the assigned nurse paralegal both assume that the case will reach a trial and prepare the case accordingly. The nurse paralegal is normally involved in all aspects of case preparation. The nurse paralegal adds the descriptive information regarding the case to our “case status report,” which is stored in Microsoft Excel. This is an internal document that functions as a “to do list” regarding tasks that the supervising attorney and the nurse paralegal must undertake within the next few months. The nurse paralegal transfers the individual tasks to the respective electronic calendars of the supervising attorney and of the nurse paralegal with completion dates. The nurse paralegal is familiar with deadlines unique to medical malpractice cases so nobody misses important deadlines, and the supervising attorney and the nurse paralegal prepare the case in a proactive rather than a reactive manner. The nurse paralegal and the supervising attorney meet on a regular basis to discuss the “case status report” and the necessary case preparation tasks. As a case progresses, the nurse paralegal updates the “case status report” to include such items as the initial meeting with the client; fact investigation required as a result of the meeting; possible case themes; defenses to the plaintiff’s petition or complaint; propounding discovery to the plaintiff; responses to discovery from the plaintiff; the detailed medical chronology; expert identification and retention; deposition scheduling; deposition preparation; record acquisition; discovery summarization; and written reports to the insurer. The supervising attorney and the nurse paralegal keep the client and the insurer fully informed as the case progresses.
The Client In our firm, the nurse paralegal contacts the client, usually a physician in these cases, and arranges a meeting with the physician, the assigned attorney, and the assigned nurse paralegal. It is crucial that the nurse paralegal attend the meeting for several reasons. Because the nurse paralegal is a nurse and physicians are accustomed to talking to nurses all the time, often a physician client is much more forthcoming with the facts, both good and bad, when talking to a nurse paralegal. A physician is less likely to believe that he or she can pull the wool over the eyes of a nurse paralegal given his or her training and experience compared to a defense attorney. Because of his or her training, a nurse paralegal is able to ask a physician pertinent questions that might not occur to a defense attorney. In our firm the nurse paralegal takes detailed notes during the meeting and later prepares a memo summarizing what a physician said for the supervising attorney’s use and the use of the professional liability insurance carrier. The attorney and the nurse paralegal discuss potential expert witnesses with the physician client to see if he or she has someone in mind or has any objection to the expert witnesses that the attorney is considering asking to review the case. The nurse paralegal reassures the physician so that the physician will feel comfortable communicating with him or her directly in the future. The nurse paralegal provides the physician with copies of two memos prepared by the attorney, one describing the litigation process and the other discussing how to deal with the cognitive distortions that a physician often suffers during litigation. See David D. Burns, Feeling Good: The New Mood Therapy (1980). Medical Records The nurse paralegal collects the relevant medical records from several sources: the physician client, the plaintiff, through written discovery, and third-party health-care providers, through the use of authorizations for release of information signed by the plaintiff or through subpoenas. Nursing judgment is involved in determining which medical records will likely be relevant to a case. In cases involving chronic conditions, it may be prudent to obtain decades of medical records. In cases involving short- lasting, acute conditions, it may be prudent initially to obtain three years of medical records. When the records are obtained, nursing judgment is involved in determining if additional records are required. The nurse paralegal generally makes these determinations in our firm. As the firm receives the medical records, the nurse paralegal prepares a detailed A DEEPER KNOWLEDGE OF YOUR PRACTICE As a lawyer, you understand your clients’ needs and you work diligently on their behalf. LawyerGuard has a deeper knowledge of the risks you face that can affect you both personally and professionally, and offers one of the strongest lawyers’ professional liability policy forms on the market today. This program evolved from over 20 years of experience with defense attorneys, and is the only lawyers’ professional liability program sponsored by DRI. Our continued partnership with Catlin Insurance Company, Inc. makes this possible. Catlin is a leading global specialty insurer and reinsurer and also the sponsor of the 2012 Catlin Seaview Survey, a scientific expedition set to carry out a pioneering study of Australia’s Great Barrier Reef. The project will document the health and composition of this vital ecosystem and address important questions regarding changes associated with rapidly warming oceans. Find out more at www.catlin.com. Have your agent contact Stephen van Wert at LawyerGuard via phone 813-712-7032, email stephen.vanwert@willis.com or visit www.lawyerguard.com We Know Your Business. For The Defense ■ November 2012 ■ 19
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