NEWS FLASH
Media Attends Houston CLNC® Live Certification Program
The Upper Kirby Progressive, a Houston newspaper, sent reporter Steven Devadanam and a photographer to the CLNC® Live Certification Program held in our city this June. The article just appeared in their July issue's "Business Briefs" section. Reporter Steven interviewed several nurses in the audience. Then he experienced Vickie teaching her program, and spoke with her at length for his article, "The Prescription for Success."
"I knew that I loved nursing and wanted to continue doing it on my own terms," Vickie explains in the piece, "so I created my own nursing profession."
The article also quotes Joyce Miller, a nurse who braved the floods inundating Houston that week to complete the six-day course. "The results, she feels, have been well worth the travel hazards. 'Vickie's taught me that I already possess the knowledge and ability,' says Miller, 'and if I'm willing to work at it I can be successful.'"
The article ends with another quote from Vickie: "'I love nurses,' Milazzo says with a grin. 'I am one of them, and I appreciate all the hard work. I know the difference it made in my own life to own my own business and to be able to create my own career destiny for myself. So there's nothing more satisfying than to get in there and help another nurse with their career dreams.'"
Supreme Court Rules on HMOs and Medical Malpractice
A recent unanimous U.S. Supreme Court decision may make it easier to sue an HMO for medical malpractice. Under ERISA, HMOs will still be shielded from litigation for "breach of fiduciary duty," but this decision notes that ERISA does not preempt other ERISA-covered claims if they are brought as state-law medical malpractice causes of action.
Prior to this ruling, HMOs could avoid litigation involving allegations against physician incentive plans, or about physicians' decisions concerning medical treatment or concerning the patients' eligibility for services, claiming such cases involved a "breach of fiduciary duty," even if they involved medical decisions. Now, these types of claims may be filed as medical malpractice suits.
Although many lower courts have held that ERISA did not protect HMOs from claims involving the quality of medical care provided, the Supreme Court decision leaves no question that HMOs are not shielded by ERISA in such issues. This ruling also could expand the types of cases allowed in state-law claims to include the selection, retention and credentialing of physicians, and HMO utilization review activities.
MAKING A DIFFERENCE
Proactive LNC Achieves Legal AND Medical Victories
by Donna Adkins, RN, BSN, CRRN, CCM, CLCP
I like to think that any time an attorney uses the services of a legal nurse consultant, the case benefits immediately. I am working on several cases involving issues that were never discovered until the attorney brought in a nurse. I'll share two examples of past cases where my involvement made a direct difference to the patient.
Case #1: Even Criminal Defendants Deserve Necessary Medical Care
In a criminal case, after I interviewed the patient/client, I informed the attorney that I believed this individual was at extreme risk for suicide and also needed other medical intervention. The attorney took this call in his car and forwarded the information to the patient's family, who actually found a suicide attempt in progress. The patient had enough function in his right hand to stab himself with a knife he ordered without his family's knowledge via the Internet. (The attorney thought I was clairvoyant, but I was only using my nursing skills of assessment and intervention.)
The patient was admitted to intensive care and survived the self-inflicted knife wound to the groin area. He was a criminal defendant who had become profoundly depressed due to his DUI incident, which killed another and left him a quadriplegic.
This was a tragic case for all. I became involved in the patient's rehabilitation efforts and later testified concerning his residual capacity. My involvement was invaluable to the attorney and the family, as well as to the patient/client.
Because of the DUI charge, the prosecutor had no sympathy for this individual. However, once the medical facts were investigated and brought forth, the prosecutor's attitude changed. The defendant did receive a jail sentence, but his incarceration was shortened and included appropriate medical care and accommodation to his medical needs. He and his family were grateful to have been treated with respect.
Case #2: The Right Diagnosis Saves the Day for Patient
One day an attorney-client asked me if I knew anything about RSD (reflex sympathetic dystrophy). He had a workers' compensation case involving this diagnosis and wanted to know more about the disorder. I asked to see the file and offered to fill him in on RSD at no charge.
Guess what? Although I'm not a doctor, I know my dermatome patterns and recognize upper motor neuron reflexes when I see them. I informed the attorney that there was the likelihood of a spinal cord injury (based on the mechanism of injury and the symptoms, both objective and subjective). If this spinal cord injury wasn't treated, his client was in deep medical trouble.
The bottom line – I was right. This case is now a bad faith claim as well as workers' compensation. It was bad faith because the workers' comp carrier had refused to pay for the recommended, appropriate and necessary testing and treatment options. The patient/client is now receiving intensive medical attention (focused on the correct diagnosis) and obtained a favorable ruling from the workers' compensation board. According to the attorney, this would not have happened without my intervention and knowledge. By the way, even though I offered my assistance at no charge, the attorney paid me for this case!
Education and the Nursing Process Make the Difference
With both these cases, I applied my nursing skills as well as my skills in the legal arena. Education is what nursing is all about. It's a pleasure to see my attorney-client's face light up when he finally gets the message. While the attorney knows the law, he does not know the medical issues. Time after time, my attorney-clients and I merge our skills to achieve a legal and medical victory for the injured client.
In every case, whether plaintiff or defense, I apply the nursing process during my initial review. I am amazed at how many LNCs fail to do this. Try this approach and see how it improves your analysis and recommendations – and your ability to directly impact the patients involved in your cases. Remember, you are a legal nurse consultant – and your nursing knowledge can make a valuable difference.
Donna Adkins, RN, BSN, CRRN, CCM, CLCP, owns Medical Claims Analysis & Management Services. Inc., based in Kentucky. The company focuses on developing life care plans. Additional practice areas include plaintiff and defense workers' compensation, medical negligence and malpractice, personal injury and criminal cases.
BEST PRACTICES FOR TECHNOLOGY
Electronic Communication for the Security-Conscious LNC
by Thomas M. Ziemba, BS, JD
For legal nurse consultants the electronic communications age has opened new doors for keeping in touch with your attorney-clients, co-workers, contractors and subcontractors. Portable, mobile or cellular telephones, faxes and email help us modernize our practices; however, these electronic miracle workers are all fraught with security risks.
Many of us remember to lock our filing cabinets when we leave our offices, but when was the last time you locked the files stored on your computer? Do you carefully guard when, where, how and with whom you communicate regarding the cases you are working on? The answer to these questions is probably "no." Most people don't realize the ease with which this information can be accessed, intercepted or forwarded – all without their knowledge or permission.
Simple Computer Security – Few LNCs use even rudimentary password protection of computer files, even though Windows®, Word® and WordPerfect® all make this fairly simple to do. Those of us who use laptops are in even greater danger due to the high potential for theft of these convenient tools. A laptop that walks off after a deposition, a day in court or an evening in the library could cost your side the case – not to mention the lost time in recreating the work, replacing the computer or the damage to your professional reputation.
Basic Phone Privacy – Conversations on non-digital portable and mobile phones can easily be intercepted. If you must talk over a portable or mobile phone, at least make sure you're using a digital phone. Digital phones are immune to eavesdropping by all but the most determined or sophisticated persons (the FBI, criminals, the press).
The Illusion of Privacy – Electronic communications create an illusion of privacy that people don't feel anywhere else. People sometimes expose personal, private or confidential information in email that they would never reveal over the phone or in a letter.
For example, just look at the communications on any legal nurse consulting listserv or bulletin board. Questions are often posted containing enough information to let a knowledgeable reader determine the parties to a case as well as the poster's position on the case. Legal nurse consulting is a small community. What makes you think the other side's LNC doesn't belong to that same listserv or read the same bulletin board?
Would you discuss your client's case in front of others at a party or professional meeting? Of course not. Yet sitting in front of a computer you may have a false sense of intimacy.
Too Easy Email – A major problem with email is its immediacy. People seldom take the time to print and proof a draft of an email before hitting the "send" button. Even if you spell check, the message could contain typos, erroneous information, or worse yet, incomplete or ill-considered thoughts. Do you really want wrong information sent across the Internet as your professional communication?
We also forget how many different people might receive our communications. You don't have to be the victim of a sophisticated computer hacker for this to happen. For example, we tend to believe that only the recipient of a fax transmission will view it. We don't consider the secretary, clerk, cleaning person, hotel desk clerk, operator, son or daughter who might see that fax before the recipient does – if it goes to the correct fax number to begin with!
With email, as with fax, once you send it, you have no control over what happens to it, who reads it, how many times or to whom it may be forwarded. Co-workers and family members are only a few of the many people who might have easy and legitimate access to your recipient's email account. A recipient who hits the "forward" or "reply to all" button could send a confidential communication around the world and to people who have no business receiving it. Some people have large groups in their email address books. It's easy to hit the wrong button in an address list or make a typo in entering an address, and send a message to a whole group instead of a single recipient. Certainly your attorney-client would never do this intentionally, but you don't know about the secretary, law clerk, paralegal or family member using the same computer.
The ease of sending most electronic communications can lead to other mistakes in distribution. All of us are guilty of sending a fax to the wrong number simply because we transposed digits in the number, hit the "redial" button instead of dialing the number ourselves or hit the wrong number on an auto-dialer list.
Easy Precautions – Here are some precautions to help avoid misdirecting email:
Never send confidential information to an attorney-client, subcontractor or other party without first sending a test email to confirm the recipient's address. Ask the recipient to reply, verifying the address from both the "To" line and the "header" that appears at the bottom of some email, then enter the correct address in your address book.
Each time you email someone, use only the archived address. Many email systems automatically fill in the address once you start typing in the "To" line. If you have clients with similar names or addresses or have an incorrect address in your address book, this can result in misdirected email if you don't check the address/recipient.
Change your email address if you frequently get mail intended for someone else with a similar address. For example, I dropped my Hotmail address because I was tired of reading mail for someone named Jim whose address only differed from mine by a hyphen. The massive numbers of addresses on AOL, MSN and other popular ISPs increase the potential for such errors. Most of Jim's correspondents didn't know where to place the hyphen, so I received – and deleted – a good bit of his mail before changing my address. If I was getting his mail, chances are he was also getting mine. Imagine if Jim and I were both attorneys on opposing sides of a case – a recipe for disaster.
Guard Your Reputation – Most unintended recipients probably view such communications by accident and in complete innocence. They regard it as a nuisance and either ignore or delete the messages. But any communication could just as easily fall into the hands of someone whose intentions might not be innocent – such as the opposing side on an important case.
The "confidential attorney-client privileged information" cover sheet won't help if you accidently send your opinion or work-product to the opposite side in a case or to someone who "innocently" forwards it to an interested party. You will never be able to explain why your confidential memorandum is now in the hands of the other side, and you can't guarantee they won't read it and use it in developing their own case and argument.
The American Bar Association has ruled (Ethics Opinion 99-413) that encryption of email is not required in the ordinary course of an attorney's practice, and there's no law requiring attorneys to encrypt communications. Therefore, no LNC working under an attorney's supervision would be required to encrypt her communications.
However, as a legal nurse consultant you should consider the risks when using any form of electronic communication. Be careful, be thoughtful, and pay attention to who you phone, fax or email, and where and when you do so. Your professional reputation is on the line.
General Counsel Thomas M. Ziemba is the information systems manager for the Medical-Legal Consulting Institute, Inc.
Watch for future articles on this important issue. We'll discuss simple alternatives for encrypting email, creating "self-destructing" email and other reasonable security practices.
