For The Defense, November 2012 - DRI Today

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Medical Liability and Health Care Law medical chronology in a Microsoft Excel table. The medical chronology that our firm uses is prepared in landscape format and has the following columns: date, time, author, record type, summary, source of record, page number, and comments. The comments are those of the nurse paralegal and contain some of the most helpful information, for instance, identifying A physicianis 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. additional information the attorney and nurse paralegal should obtain. A copy of this medical chronology is provided to the client and the insurer. Microsoft Excel has many advantages: the nurse paralegal can add additional records easily to the medical chronology and use the sorting functions to make reviewing it easier, for example, by grouping every document authored by a client in chronological order. After completing the detailed medical chronology, the nurse paralegal prepares an overview memo summarizing the highlights of the most relevant medical information in a case. This memo generally concludes with a “to do list” that is transferred to the “case status report” and the task list in the calendars of the nurse paralegal or of the supervising attorney, depending on to whom the task would most appropriately belong. Experts The nurse paralegal maintains our firm’s database of experts used in the past or with whom our attorneys have become familiar. Sometimes the nurse paralegal searches for experts who have published on a particular topic. After the nurse paralegal and the 20 ■ For The Defense ■ November 2012 supervising attorney discuss who should be asked to review the case, the nurse paralegal contacts the expert. This is one area where the nurse paralegal’s communication skills and professional background come into play. The nurse paralegal is generally able to convince an expert’s assistant to at least make an appointment so that the nurse paralegal can have a telephone conference with the potential expert. The nurse paralegal discusses the case with the expert and determines if the expert is willing to review it. If so, the nurse paralegal obtains some basic information, requests a copy of the expert’s curriculum vitae, and determines the number of times that the expert has testified by a deposition or during a trial, as well as how many times the expert has testified for a plaintiff or for a defendant. The nurse paralegal also determines the expert’s hourly rate for reviewing documents, participating in telephone conferences, and offering depositions and trial testimony. The nurse paralegal determines if the expert is willing to testify during a trial or if the expert will only agree to testify by a deposition. The nurse paralegal then provides all this information, as well as a copy of the expert’s curriculum vitae, to the professional liability carrier and obtains approval of the carrier before sending anything to the expert to review. Once a carrier has approved an expert, the nurse paralegal then sends two letters to the expert over the attorney’s signature. The first letter confirms the terms of the engagement to prevent a dispute later about what an expert charges. The second letter accompanies a disk containing copies of the petition and the medical records in PDF format. The second letter confirms that the expert agrees to comply with HIPAA or to return the disk without reviewing the records. The nurse paralegal then will schedule a telephone conference during which the nurse paralegal and the supervising defense attorney will learn the expert’s initial opinion. After the telephone conference, the nurse paralegal prepares a memo summarizing the telephone conference and provides copies to the client and to the insurer. As the firm receives additional medical records, depositions, and other documents, the nurse paralegal provides copies to the expert witnesses to review. At appropriate times, the nurse paralegal will schedule a telephone conference with each expert so that the nurse paralegal and the supervising attorney can determine if and how the new information has affected an expert’s opinion. Again, the nurse paralegal prepares a memo summarizing the telephone conference and shares it with the client and the insurer. Medical Literature Research Generally, experts will identify the most relevant medical literature on a particular topic for a defense attorney. The nurse paralegal obtains copies of that literature and supplies it to the attorney. If for some reason the expert is not helpful in identifying pertinent medical literature, then the nurse paralegal has responsibility for identifying it. Medical information sites on the Internet, state medical libraries, medical school libraries, and hospital libraries are useful sources of information. Most libraries employ staff specifically trained to conduct medical literature searches no matter how arcane the topic. An intelligent nurse paralegal cultivates a good relationship with those staff members. After obtaining the medical literature, the nurse paralegal then reviews it and either highlights the most important information or creates a memo summarizing the most important information. Many medical textbooks are three or more years out of date before they are published. However, some medical textbooks are extremely helpful to an attorney needing an overview of a particular subject, even if the textbook is somewhat dated. The Internet and paper publications can be rich sources of medical illustrations. As required, the nurse paralegal contacts a copyright holder and negotiates the cost of obtaining a limited copyright license for each illustration used during a trial. Preparing a Client for a Deposition A client cannot win his or her case during his or her deposition; however, he or she can lose it. Therefore, preparing a client for a deposition is imperative. The nurse paralegal provides an extensive memorandum prepared by the supervising attorney to the physician client about how to offer good deposition testimony. Also, the nurse paralegal provides the physician client with
a DVD to watch about offering deposition testimony. The nurse paralegal and the supervising attorney meet with the client to practice offering a deposition. The supervising attorney asks the client questions that an opposing attorney likely will ask during the deposition. The nurse paralegal takes a digital video during the practice session. They stop recording approximately every 10 minutes, and the physician, the attorney, and the nurse paralegal watch the video on a computer monitor. One picture is worth 1,000 words. Showing a client a video effectively conveys to a client what is wrong with the testimony and how he or she can improve it. In our experience, the nurse paralegals who have worked for our firm have made particularly effective observations and suggestions in an empathetic manner. Preparation for Depositions of Opposing Experts While our firm’s attorneys have several important goals when deposing an opposing expert, almost without exception, the primary goal is to obtain “sound bites” to use against the expert during a trial. For example, an attorney might ask, “Have you ever failed a board certification examination” If the expert answers “yes,” the attorney has a marvelous sound bite to use during a trial. Brief sound bites usually discredit an opposing expert more effectively during a trial than lengthy deposition excerpts that jurors might find hard to follow. Jurors understand and remember a sound bite. See, e.g., Chip Heath & Dan Heath, Made to Stick: Why Some Ideas Survive and Others Die (2007). To draw out sound bites, first the nurse paralegal thoroughly researches the background of each opposing expert. He or she verifies that the items on the expert’s curriculum vitae are accurate. For example, an opposing expert in a case that our firm recently handled indicated on his curriculum vitae that he was on the medical staffs of five hospitals. The nurse paralegal contacted the hospitals and found he was on the medical staffs of only one of the five. The nurse paralegal then obtained letters from the other four hospitals confirming the expert was not a staff member. Using social media and the Internet a nurse paralegal may find that an expert advertises his or her services as a witness online or that the expert is listed with a company that supplies experts to attorneys. Either way, it appears that the expert offers his or her opinions for sale. The nurse paralegal also reviews the previous deposition testimony of experts by contacting IDEX or DRI and obtaining copies of transcripts of the expert’s previous testimony in other cases. The nurse paralegal then highlights the sound bites in the transcripts so that the supervising attorney can ask the expert the same questions during a deposition and hopefully then will elicit the same sound bites to use during the upcoming trial in our case. Previous depositions generally are filled with fodder for creating sound bites to use later during a trial to impeach an expert, and a skilled nurse paralegal will ferret out those sound bites. The nurse paralegal also prepares memos summarizing the medical experts’ deposition testimony, and in the case of opposing experts, suggest areas potentially open to attack during a trial. This is not to say that an attorney should rely on a nurse paralegal to prepare direct examination and cross- examination questions for experts. However, a nurse paralegal generally suggests insightful questions, particularly from a medical standpoint. Information Management The nurse paralegal in our firm takes on the responsibility for finding information when the supervising attorney needs it. The nurse paralegal takes a very active role in monitoring our firm’s electronic and paper filing systems. Virtually without exception, the nurse paralegal can access and provide the required information. Our system has several features. All incoming documents are scanned into the on-site computer system by a file clerk using Adobe Acrobat, and simultaneously they are saved to the remote server. To the extent that a document is compatible with optical character recognition, the system recognizes the text as well. We save all the documents that we generate both to the on-site computer system and to the remote server. Saving documents to the remote server enables the nurse paralegal and the supervising attorney to access all the documents from any location with Internet access. All the electronic documents can be searched by the filename or for terms in the text of a document. However, with paper documents, the nurse paralegal writes on each document specifically where it is to be filed using a long- standing system. Designating the filing destination guides a file clerk and eliminates guesswork from the job. Firms can waste a great deal of time The nurse paralegal has unique insight into how to use medical illustrations, timelines, and other demonstrative evidence effectively to introduce complex medical issues to a jury. searching for particular paper and or electronic documents if file clerks don’t receive filing location guidance. An effective information management system should allow an attorney to organize information in one or more of five ways: location, alphanumeric, chronological, category and hierarchy. The paper filing system used by the nurse paralegal organizes paper categorically and alphanumerically. It involves seven categories of numbered and color-coded files for (1) correspondence, (2) pleadings, (2.1) expert designations, (3) discovery subfiles, (4) topical subfiles, (5) expert subfiles, (6) fact witness subfiles, and (7) medical record subfiles. Each subfile is filed alphabetically within its numerical category. The nurse paralegal has a master index of all the subfiles to consult. Because a file bears the name of the case, the numerical category of the subfile, and the color-coded label assigned to each numerical category, it usually takes less than a minute for the nurse paralegal to locate an errant, misfiled subfile. Paper documents are destroyed at the Nurse Paralegal, continued on page 80 For The Defense ■ November 2012 ■ 21
Page 3 and 4: On The Record Embracing the Process
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