Screening a Case for Merit

One of the most common services a legal nurse consultant (LNC) is asked to perform is screening a medical malpractice case for merit. A LNC looks at the case to make sure all four elements of a medical malpractice case are met.

1) Duty - This is usually the easiest element to satisfy. All professional health care providers who have a relationship with a patient have a duty to that patient. The patient/health provider relationship is often established when the doctor, nurse, etc. begins treating the patient.

2)A Breach of Duty - This occurs when a health care provider does not act according to the standards of care for his/her profession. A LNC looks at this element carefully knowing that the standard of care must be proved through expert testimony or that it must be an obvious error (such as removing the wrong limb during surgery or administering the wrong medication).

3)The Breach caused an injury - The LNC knows that the breach must be the proximate cause of the injury. The LNC will look at other potential causes of the injury such as underlying disease states, noncompliance issues, and usual complications of surgery/treatment. The LNC knows that bad outcome does not always mean that bad practice occurred. The LNC knows that causation must be proven and looks at this element understanding that if causation is not proven to a "reasonable degree of medical certainty" then there is no case.

4) Damages - Without damages,there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease. This is a key element. The degree of damage must be looked at as well. What were the short-term and long-term damages ?

A LNC is able to review a medical malpractice case for merit in five hours or less. Nursing home cases may take longer because of the large volume of records. A LNC will be able to tell the attorney the good, the bad, and the ugly about the case at hand. A LNC can give the attorney an idea of expert witness that may be needed, the potential arguments of the defense, and the extent of damages. Knowing the cost of a medical malpractice case, a LNC is a valuable tool that saves the attorney both time and money. If an attorney uses a doctor to review cases for merit, the doctor usually charges double to triple that of a nurse. Also, a nurse has a better understanding of the health care team as a whole and can speak to breaches made by doctors, nurses, lab techs, etc. Lastly,the LNC is able to examine, recognize, and interpret all relevant medical related information in a case that a non-medical professional might miss. That is why a LNC is a valuable addition to the litigation team.