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 />
medical chronology in a Microsoft Excel<br />
table. <strong>The</strong> medical chronology that our<br />
firm uses is prepared in landscape format<br />
and has the following columns: date, time,<br />
author, record type, summary, source of<br />
record, page number, and comments. <strong>The</strong><br />
comments are those of the nurse paralegal<br />
and contain some of the most helpful<br />
information, for instance, identifying<br />
A physicianis less likely<br />
to believe that he or she<br />
can pull the wool over the<br />
eyes of a nurse paralegal<br />
given his or her training<br />
and experience compared<br />
to a defense attorney.<br />
additional information the attorney and<br />
nurse paralegal should obtain. A copy of<br />
this medical chronology is provided to the<br />
client and the insurer. Microsoft Excel has<br />
many advantages: the nurse paralegal can<br />
add additional records easily to the medical<br />
chronology and use the sorting functions<br />
to make reviewing it easier, for example,<br />
by grouping every document authored by<br />
a client in chronological order.<br />
After completing the detailed medical<br />
chronology, the nurse paralegal prepares<br />
an overview memo summarizing<br />
the highlights of the most relevant medical<br />
information in a case. This memo generally<br />
concludes with a “to do list” that is<br />
transferred to the “case status report” and<br />
the task list in the calendars of the nurse<br />
paralegal or of the supervising attorney,<br />
depending on to whom the task would<br />
most appropriately belong.<br />
Experts<br />
<strong>The</strong> nurse paralegal maintains our firm’s<br />
database of experts used in the past or with<br />
whom our attorneys have become familiar.<br />
Sometimes the nurse paralegal searches for<br />
experts who have published on a particular<br />
topic. After the nurse paralegal and the<br />
20 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
supervising attorney discuss who should<br />
be asked to review the case, the nurse paralegal<br />
contacts the expert. This is one area<br />
where the nurse paralegal’s communication<br />
skills and professional background<br />
come into play. <strong>The</strong> nurse paralegal is generally<br />
able to convince an expert’s assistant<br />
to at least make an appointment so that the<br />
nurse paralegal can have a telephone conference<br />
with the potential expert.<br />
<strong>The</strong> nurse paralegal discusses the case<br />
with the expert and determines if the<br />
expert is willing to review it. If so, the nurse<br />
paralegal obtains some basic information,<br />
requests a copy of the expert’s curriculum<br />
vitae, and determines the number of times<br />
that the expert has testified by a deposition<br />
or during a trial, as well as how many times<br />
the expert has testified for a plaintiff or for<br />
a defendant. <strong>The</strong> nurse paralegal also determines<br />
the expert’s hourly rate for reviewing<br />
documents, participating in telephone<br />
conferences, and offering depositions and<br />
trial testimony. <strong>The</strong> nurse paralegal determines<br />
if the expert is willing to testify during<br />
a trial or if the expert will only agree to<br />
testify by a deposition.<br />
<strong>The</strong> nurse paralegal then provides all<br />
this information, as well as a copy of the<br />
expert’s curriculum vitae, to the professional<br />
liability carrier and obtains approval<br />
of the carrier before sending anything to<br />
the expert to review. Once a carrier has<br />
approved an expert, the nurse paralegal<br />
then sends two letters to the expert over the<br />
attorney’s signature. <strong>The</strong> first letter confirms<br />
the terms of the engagement to prevent<br />
a dispute later about what an expert<br />
charges. <strong>The</strong> second letter accompanies a<br />
disk containing copies of the petition and<br />
the medical records in PDF format. <strong>The</strong> second<br />
letter confirms that the expert agrees<br />
to comply with HIPAA or to return the disk<br />
without reviewing the records. <strong>The</strong> nurse<br />
paralegal then will schedule a telephone<br />
conference during which the nurse paralegal<br />
and the supervising defense attorney<br />
will learn the expert’s initial opinion. After<br />
the telephone conference, the nurse paralegal<br />
prepares a memo summarizing the telephone<br />
conference and provides copies to<br />
the client and to the insurer.<br />
As the firm receives additional medical<br />
records, depositions, and other documents,<br />
the nurse paralegal provides copies to the<br />
expert witnesses to review. At appropriate<br />
times, the nurse paralegal will schedule a<br />
telephone conference with each expert so<br />
that the nurse paralegal and the supervising<br />
attorney can determine if and how the<br />
new information has affected an expert’s<br />
opinion. Again, the nurse paralegal prepares<br />
a memo summarizing the telephone<br />
conference and shares it with the client and<br />
the insurer.<br />
Medical Literature Research<br />
Generally, experts will identify the most<br />
relevant medical literature on a particular<br />
topic for a defense attorney. <strong>The</strong> nurse<br />
paralegal obtains copies of that literature<br />
and supplies it to the attorney. If for some<br />
reason the expert is not helpful in identifying<br />
pertinent medical literature, then the<br />
nurse paralegal has responsibility for identifying<br />
it. Medical information sites on the<br />
Internet, state medical libraries, medical<br />
school libraries, and hospital libraries are<br />
useful sources of information. Most libraries<br />
employ staff specifically trained to conduct<br />
medical literature searches no matter<br />
how arcane the topic. An intelligent nurse<br />
paralegal cultivates a good relationship<br />
with those staff members.<br />
After obtaining the medical literature,<br />
the nurse paralegal then reviews it and<br />
either highlights the most important information<br />
or creates a memo summarizing<br />
the most important information. Many<br />
medical textbooks are three or more years<br />
out of date before they are published. However,<br />
some medical textbooks are extremely<br />
helpful to an attorney needing an overview<br />
of a particular subject, even if the textbook<br />
is somewhat dated.<br />
<strong>The</strong> Internet and paper publications can<br />
be rich sources of medical illustrations.<br />
As required, the nurse paralegal contacts<br />
a copyright holder and negotiates the cost<br />
of obtaining a limited copyright license for<br />
each illustration used during a trial.<br />
Preparing a Client for a Deposition<br />
A client cannot win his or her case during<br />
his or her deposition; however, he or she<br />
can lose it. <strong>The</strong>refore, preparing a client<br />
for a deposition is imperative. <strong>The</strong> nurse<br />
paralegal provides an extensive memorandum<br />
prepared by the supervising attorney<br />
to the physician client about how to offer<br />
good deposition testimony. Also, the nurse<br />
paralegal provides the physician client with