The Legal Nurse Consultant in Elder Abuse Litigation
by Penny Watkins & Wilma Bradley
Riverside Lawyer, January 2006

Are you asking yourself...What is a Legal Nurse Consultant (LNC) and why would I want to utilize one? The legal nurse consultant is a registered nurse who assists attorneys in navigating smoothly through the convoluted and confusing health care system. Whether the settings are acute care hospitals, outpatient settings/clinics, extended care skilled nursing centers, residential care centers, or physician offices, the LNC can accurately and thoroughly review, interpret and analyze the information as to the standard of care, omissions, errors and the appropriateness of care provided and can impart an opinion to the attorney. This article will highlight certain aspects of the role of the LNC, provide a rudimentary overview of the LNC in elder abuse cases and answer the two questions posed.

LNC Qualifications
The two main qualifications for the LNC are that he or she must be a Registered Nurse with at least three to five years of clinical experience. It is not essential that the LNC have experience in the legal arena, but it can be helpful. The attorney seeks the assistance of the LNC because of the registered nursing and healthcare experience that gives the LNC the ability to determine whether a breach of the standard of care has occurred. The LNC needs to be knowledgeable in the standard of care, the nurse scope of practice and the Nursing Practice Act, as well as the state and federal laws and regulations specific to the healthcare setting in which the alleged injury occurred. The LNC should be capable of providing the attorney with a succinct definition of the standard of care as well as his or her source(s) for that definition.

Types of Cases
An LNC can be utilized in any case where health, injury and illness are at issue. a few examples where LNC services have been utilized are, of course, medical/nursing malpractice, personal injury, Worker's Compensation, IME/DME, employment law and product liability.

Services of the LNC
The LNC can be utilized as a consultant, working behind the scenes, or as an expert witness. Some of the typical services the LNC provides, either as a consultant or an expert witness, are medical record review, medical record organization, and analysis of the medical record content and the care provided. The LNC can determine whether the entire record has been secured, whether additional records are needed and whether the standard of care was met. The LNC consultant can generate reports as directed by the attorney. These reports range from medical and/or pharmacology chronologies to graphs and timelines. The LNC consultant can also assist in formulating interrogatory and deposition questions, identifying experts needed, and obtaining the experts. The expert witness LNC opines regarding the standard of care for deposition and trial, if necessary. Generally, the LNC expert witness does not produce a written report for the attorney.

Communication
Communication is an integral part of the LNC's duty. When contacted by an attorney, the LNC asks what is the case about, what are the attorney's needs related to the case, whether the attorney requires the LNC's services as an expert witness or consultant, if a written or oral report is expected, the amount of time to be spent for the initial review and the deadline for submission of the work product/opinion. The LNC's fees are discussed and decided at this point. Once a review of the records has occurred, the LNC clearly and succinctly presents the facts of the case and his or her findings and opinions regarding the case to the attorney and often requests additional records and documents for review to further test these findings and opinions.

The services of the LNC are essential in the area of elder abuse. This litigation usually falls outside of MICRA and can be quite costly to all parties involved. The medical records may be voluminous, as they can come from a multiple of healthcare settings and can cover an extended period of time. Long-term care facilities are subject to a tremendous amount of regulations that dictate their necessary documentation and cause the medical records to be complicated and very lengthy. The LNC, who is acquainted with the regulations, can efficiently review and assess whether the standard of care, the Nursing Practice Act, or the state and federal laws and regulations were or were not breached. The LNC can save the attorney time and money by utilizing his or her experience and knowledge to competently perform the medical record review and analysis of the care provided, thereby allowing the attorney and the attorney's staff the time to practice law.

Elder Abuse
As registered nurses practicing within the realm of healthcare, we, along with the other professions within healthcare, are designated as mandated reporters of elder abuse. In fact, many healthcare facilities require the employee to sign a statement that indicates the employee is aware of his or her role as a mandated reporter. We have been the "champions of the elderly" as the advocates of this group of patients. However, increasingly, nursing and other healthcare professionals, along with healthcare and community care facilities, have come under scrutiny by families and the legal profession making allegations of elder abuse. These allegations are aimed at those individuals and facilities that historically have been seen as the advocates for the elderly.

It is important to understand that the basic service provided by the acute care hospital and the skilled nursing facility is skilled nursing care. Nursing care is provided in addition to the medical services required by the person admitted as a patient in an acute care hospital or resident in a skilled nursing facility. Therefore, issues of negligence and the standard of care within the hospital or skilled nursing facility generally encompass the nursing care and services provided to the client. Registered nurses and the LNC are the best qualified to speak to the nursing standard of care. The seasoned LNC knows the scope within which he or she can opine and stays within the scope of nursing. Allegations of malpractice committed by other healthcare professionals need to be addressed by experts in that specific profession and not by the LNC.

The following information provides the basics for analyzing claims of elder abuse, including definitions of specific terms related to elder abuse and steps for the review of a potential case.

Definitions
It is essential for the plaintiff or defense attorney and the LNC, working either as a consultant or expert witness, to have a working knowledge of the definitions related to elder abuse in the healthcare/community care facility. These definitions are taken from the Welfare and Institutions Code, sections 15610-15610.65. Elder (Welf. & Inst. Code, § 15610.27): "any person residing in this state, 65 years of age or older."

Elder abuse (Welf. & Inst. Code, § 15610.07): There are many forms of elder abuse, but for purposes of this article, the definition we are working from is found in the Welfare and Institutions Code, section 15610.07, subdivision (b), "The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering."

Care custodian (Welf. & Inst. Code, § 15610.17): The definition of a care custodian includes "an administrator or an employee of [specified] public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff ... " This is important, as an allegation of elder abuse can permeate through the entire healthcare/community care facility. Within the healthcare facility that provides skilled nursing services and medical services is the nursing staff, comprised of registered nurses, licensed vocational nurses and certified nurse aides/nurse aides.

Collectively, these three categories encompass what society knows as nursing. Each category has a different level of education within nursing, and the registered nurse, in the lead, is legally responsible for the actions of the licensed vocational nurse and the certified nurse aide/nurse aide. The support staff within the healthcare facility also includes social services, nutritional services, rehabilitation services, administrative services and maintenance services.

Facilities (Welf. & Inst. Code, § 15610.17, subds. (a)-(u)): Although 21 types of facilities are identified, the two of focus for this article are "[t]wenty-four hour health facilities" (Welf. & Inst. Code, § 15610.17, subd. (a)) and "[c]ommunity care facilities ... and residential care facilities for the elderly" (Welf. & lnst. Code, § 15610.17, subd. (j)).

Goods and services (Welf. & Inst. Code, § 15610.35, subds. (a)-(g)): These are expected to be provided by the care custodians and include, but are not limited to, "[t]he provision of medical care for physical and mental health needs," "[a]ssistance in personal hygiene," "[a]dequate clothing," "[a]dequately heated and ventilated shelter," "[p]rotection from health and safety hazards," "[p]rotection from malnutrition," and finally, "[t]ransportation and assistance necessary to secure" any of the other specified goods and services.

Mental suffering (Welf. & Inst. Code, § 15610.53): "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult."

Neglect (Welf. & Inst. Code, § 15610.57, subds. (a)(1)-(2), (b)(1)-(5)): Neglect is defined as "[t]he negligent failure of any person having the care or custody of an elder . .. to exercise that degree of care that a reasonable person in a like position would exercise." Types of neglect include the following: failure to assist with personal hygiene, failure to provide medical care for physical and mental health needs, failure to protect from health and safety hazards, and failure to prevent malnutrition and dehydration.

Armed with these definitions as the foundation for the allegation of elder abuse, the plaintiff or defense attorney and the LNC can mount an analysis of the medical records to determine the merits of the allegation.

Analysis of Elder Abuse
Claims for the Plaintiff Attorney
The first step is to secure as much information from the potential client as possible prior to ordering any medical records. Medical records for the elderly patient are usually voluminous, simply because the geriatric patient generally has a multitude of medical issues directly related to the process of aging and chronic illness. When speaking with the potential client, the attorney will be faced with someone who has a story to tell. The attorney can speak with the potential client or have the LNC contact the potential client. Being able to manage the conversation to secure the pertinent information required necessitates a pre-written list of questions to ask, which may include: type of injury, date of injury, name, address and phone number of the facility, name of the person to whom the injury occurred, relationship to the caller and the length of stay in the facility. This list is not inclusive, but offers the basics.

If the information provided suggests further investigation, then the next step is to secure the medical records from the facility where the alleged injury occurred. The facility may be an acute care hospital, a skilled nursing facility or a community care facility. Oftentimes the potential client already has some records, usually incomplete, but a start. Once the LNC has reviewed the records for merit, he or she will notify the attorney of the findings. The findings should address whether or not the allegations of elder abuse meet the requirements of the Welfare and Institutions Code. If the review indicates merit to the allegations, then the LNC should provide the attorney with a request for any other necessary and additional records for review, which can include previous admissions to other facilities, physician office visits, death certificates and/or autopsy reports, if applicable, prior to generation of the complaint. Once those records have been reviewed, the LNC should be able to provide the attorney with specific failures of the standard of care and those failures unique to the elder abuse statutes. It is from these failures that the attorney should have the foundation for the complaint.

The LNC reviews the medical records looking for breaches in the nursing standard of care. Although the Welfare and Institutions Code provides the direction for elder abuse claims,- the LNC utilizes a number of resources to determine failures of the nursing standard of care, which can include, but are not limited to: the Nursing Practice Act, standards of practice specific to the facility and type of nursing area involved, state and federal laws and regulations applicable to the facility where the alleged injury occurred, and professional journals. The LNC analyzes the nursing care provided to determine whether or not the allegations rise to the level of elder abuse, and if not,
whether nursing negligence or gross negligence exists. To accomplish this task, the LNC scrutinizes the following sections of the resident's or patient's medical record: medical history and physical, MD orders, nurse aide notes, MDSIRAP, care plan, nurses' notes, vital/weight records, intake and output records and ancillary services records. The content is compared to the sections of the Welfare and Institutions Code that define the specifics of elder abuse.

After the complaint is filed, the LNC can continue to assist the attorney, either as an expert witness or consultant. As an expert witness, the LNC opines regarding the nursing standard of care; thus, the LNC may generate a declaration, be deposed and testify at triaL As a consultant, the LNC can generate written reports listing strengths and weakness of the case, identify other experts who may be necessary to address the standard of care for other healthcare professions, assist in requests for production, assist with deposition questions and attend mediation sessions and arbitration hearings.

Analysis of Elder Abuse
Claims for the Defense Attorney
The LNC can be brought on by the defense attorney even prior to a complaint being filed by the plaintiff, but generally comes on board after the complaint has been filed. The LNC can be utilized as an expert witness or a consultant. The LNC compares the medical records with the complaint to determine whether or not the complaint is accurate in its allegations of elder abuse. The defense LNC utilizes the same resources as the plaintiff LNC to determine the validity of the elder abuse allegations and to formulate opinions.

Conclusion
LNC services may be utilized by the attorney for any case in which health, injury, illness or death is an issue. The LNC is an adjunct to the services of an attorney and can save the attorney time and money. This article focused on utilization of the LNC in the practice area of nursing malpractice specific to elder abuse. Elder abuse is a complex practice area and the services of an experienced LNC can be beneficial to the plaintiff and defense attorney.

Penny Watkins, RN, BSN, PHN, CLNG, and Wilma Bradley, RN, BSN, PHN, LNG, are the owners of Legal Nurse Consultants of Southern California. They have many years of nursing experience in the hospitals of Southern California, have owned a home health agency and for the last four years have worked as legal nurse consultants fOr plaintiff and defense attorneys. They specialize in medical/nursing malpractice, elder abuse and product liability. They also provide education classes to RN's, skilled nursing facilities and attorneys (MCLE status pending).