■ Define the process of investigation and analysis of potential medical negligence cases
■ Name five considerations when screening potential medical negligence cases
■ Define the three types of damages and give an example of each
■ Explain the difference between negligence and “known complication”
The analysis and investigation of medical negligence claims are as much about the medicine as they are about the law. The legal nurse consultant (LNC) supports the legal team by analyzing cases through the eyes of a healthcare provider (HCP), providing appropriate insights and advice from the unique legal nursing perspective. Not all attorneys handling medical negligence cases consider it their specialty. Even attorneys who specialize in medical negligence litigation do not always understand the subtleties of the medicine and science pertinent to the case. The role of the LNC is to assist the legal team in evaluating the case fact pattern in the context of the medicine, science, and law to create the foundation for a successful claim investigation.
Each party to a medical negligence claim conducts its own independent analysis of the case, including screening for any conflicts of interest, evaluating the statute of limitations, and analyzing the four elements of proof (see Chapter 4
for more information). The plaintiff’s legal team screens the case at the outset to determine whether it is meritorious; the defense team analyzes the case upon receipt, whether pre-suit or in-suit. The plaintiff’s side has an additional consideration: the economic viability of the case. Therefore, this chapter discusses screening medical negligence cases from the pre-suit perspective of the plaintiff. The reader should understand, though, that the defense undertakes a nearly identical evaluation of the case upon receipt.
The decision to proceed with or defer investigation of a potential claim and the manner in which the investigation will be conducted ultimately rests with the attorney. The LNC works in concert with counsel, helping the attorney-client avoid potential pitfalls. Sometimes an attorney may be eager to pursue a case, believing it has the potential for a large settlement or verdict because the potential plaintiff is catastrophically injured or because the story has “great jury appeal.” After reviewing the case and carefully considering all of the information, a knowledgeable LNC may realize that further pursuit of that claim would be difficult, at best, based on other considerations of the claim. Although the information may not be what the attorney wanted to hear, the opinion of the LNC will be appreciated as long as the basis for a “less than optimistic” outlook for the potential success of the claim is based on sound analysis and judgment. Although
the LNC may be the team member to deliver this news, the LNC’s role is fulfilled if the attorney learns of the case’s poor prognosis from the LNC early in the case screening and not from opposing counsel during discovery or deposition, long after the case has been filed and money expended.
The term “malpractice” is often used incorrectly as a “catch-all” phrase to describe the negligence of any HCP. However, malpractice, or professional negligence, extends beyond the medical arena; it is a breach of duty by any professional, be it a real estate agent, accountant, attorney, etc. A breach of duty by a physician or other HCP while performing duties as a professional is medical negligence, or medical malpractice.
Elements of Case Analysis
Conflict of Interest
Attorneys must avoid representing clients when doing so would present a conflict of interest. Conflicts of interest can be legal, personal, or practical (Zorn & Dickinson, 2014). A legal conflict of interest would exist if a plaintiff attorney previously represented an individual who is a potential defendant in the case at hand (Zorn & Dickinson, 2014). Most attorneys would also decline to handle a claim against their personal physician or a healthcare professional who was a neighbor, acquaintance, or friend, because this is a personal conflict of interest. If a potential defendant in the case at hand has worked with the plaintiff attorney on behalf of another plaintiff (e.g., as an expert witness or as a subsequent treater), this would be a practical conflict of interest. While practical conflicts of interest are not legal conflicts of interest, they may impact the attorney’s other cases (Zorn & Dickinson, 2014). It is important to identify any possible conflicts of interest as early in the investigation as possible. The LNC can assist in this effort by identifying all HCPs and facilities that played a role in the care at issue and supplying these names to the attorney for conflict checking.
Statute of Limitations
The statute of limitations (SOL) is the law that sets the maximum period of time one can wait before filing a lawsuit, depending on the type of case or claim. The SOL for medical negligence claims varies with each state and will be different for cases involving minors or mentally impaired individuals. Some states have a different SOL for death claims or may define the SOL from the date the injury or negligence was (or should have been) discovered. Claims against the Veterans Administration and other federal healthcare facilities are actually federal claims against the United States, and there is a one-year SOL.
The attorney determines the SOL from the medical records and facts of the case, not from what the client believes or remembers. Although the LNC is not responsible for determining this legal deadline, it needs to be factored into the analysis of all potential claims early in the process. If the SOL runs while the attorney or LNC is investigating the case, the attorney may be exposed to a legal malpractice claim. Consideration of the SOL begins with carefully identifying the act of
negligence that allegedly caused the injury. If there are multiple points of care with multiple providers, or care that crosses state lines, the LNC should carefully present the relevant facts and dates for the attorney’s consideration in determining the SOL. In cases of delayed diagnosis, the LNC can assist the attorney in determining the SOL by carefully outlining the chronology of symptoms and missed opportunities for the patient to have received an appropriate diagnosis. Alert the attorney as soon as possible if a rapidly approaching SOL is suspected.
Four Elements of Proof
To prevail in a professional negligence claim, the plaintiff must prove four elements: duty, breach of duty, damages, and causation (Narang & Paul, 2017; Robinson & Nouhan, 2018). (See Chapter 4
for more information.) While the plaintiff must prove all four
elements to prevail, the defense needs only to cast enough doubt about any one
element to prevail at trial or reach a favorable outcome (Robinson & Nouhan, 2018).
As the initiator of the lawsuit, the plaintiff has the burden of proving these four elements by a preponderance of the evidence. This standard is less strict than in criminal cases, in which the claims must be proven beyond a reasonable doubt. In civil cases, the standard of proof is “more likely than not,” “greater than a 50% chance,” or “to a reasonable degree of probability.”
In medical negligence claims, duty is dependent upon the existence of a provider–patient relationship. When an HCP consents to treat a patient, it becomes the HCP’s duty to use reasonable care and diligence in the exercise of skill and the application of learning to accomplish the purpose for which the HCP was employed (Jerrold, 2015).
Breach of Duty
Breach of duty is often referred to as liability or a deviation from the standard of care (SOC). The standard of care is the degree of skill, care, and judgment a reasonably prudent similar healthcare professional would have exercised in similar circumstances (Brenner, Brenner, Awerbuch, & Howitz, 2012; Narang & Paul, 2017; Robinson & Nouhan, 2018). Although states have worded the concept of the standard of care in various ways, the basic premise is that healthcare professionals are bound to adhere to the applicable standard practice for their profession. Healthcare professionals are not required to deliver the highest degree of care possible, but they are expected to deliver standard care. Within the definition of “standard care,” the healthcare professional is entitled to exercise individual judgment. Because the applicable standard of care is beyond the knowledge of the lay juror, breach of duty must be proven through expert testimony that sets forth the applicable standards in effect at the time of the incident and the specifics of the deviation(s) from those standards.
In the case of McCourt v. Abernathy (S.C. 1995), the jury delivered a plaintiff’s verdict, as it was determined that the care provided by the treating physicians was substandard (Moffett & Moore, 2011). However, the jury instructions provided by the trial judge provided a primer on breach of duty:
The mere fact that the plaintiff’s expert may use a different approach is not considered a deviation from the recognized standard of medical care. Nor is the standard violated
because the expert disagrees with a defendant as to what is the best or better approach in treating a patient. Medicine is an inexact science, and generally qualified physicians may differ as to what constitutes a preferable course of treatment. Such differences due to preference … do not amount to malpractice. … [T]he degree of skill and care that a physician must use in diagnosing a condition is that which would be exercised by competent practitioners in the defendant doctors’ field of medicine. … Negligence may not be inferred from a bad result. [The] law says that a physician is not an insurer of health, and a physician is not required to guarantee results. [The physician] undertakes only to meet the standard of skill possessed generally by others practicing in [the] field under similar circumstances.
The judge re-enforced that the care provided by a physician be minimally competent, may differ from the care of other physicians, and that a bad outcome does not mean that the standard of care was not met (Moffett & Moore, 2011).
Legal nurse consultants should not use their own experience as a guide to standard of care, as this may differ from what is done at larger or smaller institutions and may be out of step with current thinking. Researching the applicable standards in effect at the time of the event in question is paramount to LNC practice. If the initial evaluation of the case makes determining the applicable standard of care difficult because some facts are missing or would require specialized expert review, immediately discuss this with the attorney-client. If an expert will be required to determine the applicable SOC, the attorney should have the option of continuing the LNC’s review, asking for an initial expert opinion, or declining the case. If records are missing, this must be communicated to the attorney-client as soon as identified by the LNC. Records of past health care and compliance are critical. Often, further investigation will be necessary to analyze the records and evaluate causation and damages (discussed later in this chapter). It is not prudent to spend time and money summarizing medical records and retaining an expert on standard of care if there may be problems proving the other elements.
Legal nurse cons...