MY MOST MEMORABLE CASE
My CLNC® Training and My Nursing Experience Were the Keys
to Managing an Impaired Defendant
by Patsy Howard, RN, CLNC
As a CLNC® for the defense, success is not just about winning, but also about striving to prepare the best defense in the face of unforeseen obstacles. In my most memorable case, the deviations from the Standards of Care were less of an issue than the defendant's impairment.
This case was led by an attorney who is well known for winning difficult cases and he often receives complicated cases to defend. What should have been a routine podiatry case turned into a defense team nightmare.
The CLNC®'s Challenges Aren't Always in the Medical Records
The plaintiff was a young woman who injured her heel and ankle. Our law firm defended the physician who treated her. The ankle injury was mainly to the soft tissue, but the physician ended up doing several different surgeries on the heel to "relieve pain and release scar tissue." During one or more of the surgeries, nerves were damaged. The woman ended up in a wheelchair with chronic pain, unable to walk or continue working.
My responsibility was to review the medical records, create a chronology, research all pertinent issues and find an expert who could support our defense. Unfortunately, the records were completely unreadable, and the physician refused to meet with me to interpret them. Instead, I visited him at one of his clinics and insisted he help me decipher the office notes.
The physician's attention span was so short, it took us four hours to cover a few pages, and often he could not read what he had written. As I observed his pacing, inability to concentrate, short attention span and frequent smoking breaks, I suspected a drug abuse problem – a disaster in the making. I also realized his interpretations of the medical records were quite creative. Later I described his behavior problems and my other concerns to the lead attorney and the rest of the team, so we could decide how best to present our case to the insurance company.
Thanks to my CLNC® and nursing training, despite the many challenges of handling this defendant, I completed my chronology and my research on the procedure and Standards of Care. I found appropriate anatomy diagrams and helped the attorney prepare exhibits, and we sent the case out for expert review.
The physician continued to cause us a great deal of stress by not returning phone calls, refusing to show up for meetings and canceling scheduled depositions. As I seemed to be the one person he would respond to, I received the task of locating him and getting him to cooperate with us. This often meant scolding him as if I were his mother rather than a CLNC®.
Both the Defendant and the Case Disappeared
The highlight of this story is that the defendant ended up being arrested for possession of hallucinogenic mushrooms and illegal drugs just weeks before his malpractice trial date. His picture and the facts of the case appeared in the local newspaper.
Unfortunately, the insurance company would not agree to settle for the amount demanded, and we all knew this case would be a big loser. Our defense team certainly could not present the client as a truthful or believable witness.
One week before the malpractice trial date, the associate attorney working on the case left to join another firm, and the insurance company insisted the case go with her. This was a cause for celebration! We had invested a lot of long hours, sweat and tears, and we had done the best we could for our client. But all our expertise and hard work couldn't make his personal problems go away. As we watched the files leave our office, we were grateful.
This case eventually went to trial and settled after opening arguments for the initial amount demanded.
Patsy Howard, RN, CLNC is the owner of Metro Legal Nurse Consulting in Missouri. She has 23 years of nursing experience in hospital nursing, home health, management, medical malpractice litigation and legal nurse consulting.
SPECIALITY CASES
Breast-Feeding Is Not Indecent Exposure
by Jan Aken, RN, IBCLC, CLNC
Envision this scenario: Two construction workers sit on a park bench eating lunch. Before returning to work, they pull copies of Penthouse and Hustler out of their lunch pails and begin paging through the magazines, pointing out lewd pictures to each other. Meanwhile, a young mother with a toddler and a crying infant stops at a bench near the two "readers." The mother quickly unbuttons her shirt and lovingly places the baby to her breast. One of the workers glances up and notices the mother and her now contented baby. The guy nudges his friend and says in a voice clearly audible to the mother, her toddler and passing pedestrians, "Why does she have to pull out her tit and feed that kid in front of us? Isn't that against the law?"
For years mothers have endured both lewd comments and stares when they breast-feed in public. Construction workers aren't the only people who complain. Women who have attempted to breast-feed their infants in museums, theaters, public parks and even the United States Capitol have been asked to leave.
One hot summer day, a male guard in an art gallery came up to a mother sitting quietly breast-feeding her infant and said sternly, "I know what you're doing under that shawl and you must leave." Yet the embarrassed mother was surrounded by women exposing more breast tissue than she as they strolled through the gallery wearing tank tops, halter tops and low-cut dresses.
Times Change When Women Take Action
In the early 1990s progressive state legislatures began enacting breast-feeding legislation. Now more than half the states have laws on the books protecting a woman's right to breast-feed. The intention of this legislation was not to legalize breast-feeding, but to spell out women's right to breast-feed in public.
Only in the last eight years have women been allowed to breast-feed in federal buildings. Federal law now prohibits the use of federal funds "to implement, administer or enforce any prohibitions" on women breast-feeding their children in federal buildings or on federal property.
The Washington state legislature passed a bill that became law in January 2001, specifying that breast-feeding or expressing milk in public is not considered indecent exposure. State Senator Jeri Costa stated, "No mother should be discouraged from feeding her baby because of another's inhibitions or because it is inconvenient at her workplace."
Breast-feeding in public or at work is not the only issue affecting the breast-feeding mother. In California, breast-feeding was not protected as a legitimate excuse from jury duty. Angela Ponzini, a breast-feeding mother, received a jury summons and was informed by the jury commissioner that her "personal inconvenience" was not a valid excuse.
"Providing care and nutrition is not a personal inconvenience," Ms. Ponzini told a local paper. The compulsory separation of mother and infant during her jury service may create an undue burden for both the mother and the infant. This mother decided to take action. She did not file a lawsuit, but instead became the driving force behind a new California law to protect nursing mothers. This law went into effect on January 1, 2001.
Other laws are being enacted to protect breast-feeding women at work, in divorce cases, criminal cases and even civil cases. Many breast-feeding women are well-educated professionals. Their numbers are increasing at all socioeconomic levels. When they encounter difficulties, they do something about it. As a result, breast-feeding cases are appearing on court dockets involving the following issues:
Jury duty
Breast-feeding in public
Breast-feeding and employment
Parental rights of breast-feeding mothers
Right to social services
The CLNC®'s Role in Cases Involving Breast-Feeding Mothers
For the Certified Legal Nurse ConsultantCM a major part of the job is educating attorneys. Often education can resolve legal issues around breast-feeding.
But breast-feeding entails more than legal issues. It involves a woman's right to wellness and good health. CLNC®s can be especially helpful in educating the legal community about the health issues of breast-feeding. Pediatric research has demonstrated that breast-fed babies are healthier and have higher IQs. Breast-fed children are less likely to develop early food allergies or chronic digestive diseases.
In divorce cases, the CLNC® can present realistic choices that help to reconcile the father's right to visitation and the mother's right to continue to breast-feed. In cases involving employment problems we can assist the plaintiff attorney by suggesting that the mother may pump her breasts during her breaks. We can also demonstrate the benefits of breast-feeding to the employer. By showing that breast-fed babies are healthier, we support the claim that the mother will take less time off work caring for a sick child. Once the defense attorney and the employer become aware of these facts, the employer may be more inclined to give the mother a break and settle the case without a trial.
When your attorney-client calls about a case involving breast-feeding issues, whether it be in civil, family or criminal court, you must be prepared to enlighten the attorneys on either side about the health issues involved.
Jan Aken, RN, IBCLC, CLNC is a published author and an independent CLNC® in Washington state. An obstetrics nurse and board certified lactation consultant, she specializes in obstetrics cases.
