Marquette Elder's AdvisorVolume 2Issue 2 Fall Article 6

Role of Legal Nurse Consultant in Gathering andAnalyzing the Nursing Home RecordDeborah D. D'Andrea

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Repository CitationD'Andrea, Deborah D. (2000) "Role of Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record," MarquetteElder's Advisor: Vol. 2: Iss. 2, Article 6.Available at: http://scholarship.law.marquette.edu/elders/vol2/iss2/6

The Role of the Legal NurseConsultant in Gathering andAnalyzing the Nursing HomeRecordThe legal nurse consultant (LNC) can

be a powerful asset in litigation involv-

ing nursing home care. The medical

expertise of the nurse is brought to

bear on the gathering, organizing, and

analyzing of the voluminous records

that accompany such cases. The LNC's

familiarity with the industry jargon and

record standards can help to interpret

events and reveal crucial gaps in infor-

mation.

By Deborah D. D'Andrea

edical records may appear to bewritten in English, but reviewingthem can be like conducting anarchaeological dig-they consti-tute the only residue of some-

thing that happened a long time ago."' When rep-resenting an injured or deceased nursing home res-

Deborah D. D'Andrea, BSN, RN is a Legal NurseConsultant and owner of D'Andrea Consulting, Ltd.,in Chicago, Illinois.

ident, it is important to appreciate the timeline ofevents that precipitated the injury or death. Theevents leading to the lawsuit often unfold overweeks, months, or years and may involve complexmedical issues. These may include behavioralchanges, institutional transfers, assessments andreassessments, multiple injuries, and hospitaliza-tions. The legal nurse consultant (LNC)2 knowswhat should be in the resident's nursing homerecord, what may be missing, and what the recordsreally mean.3 The LNC helps the attorney under-stand and analyze the nursing home record, whichmay differ materially in content and organizationfrom hospital or other medical facility records withwhich the attorney is familiar.

Gathering Nursing Home RecordsDuring the discovery process, the legal nurse con-sultant assists the attorney in determining whatrecords should be requested. An accurate initialevaluation of the case may be possible withoutgreat expense if carefully selected records areobtained in the earliest stages of discovery.Discovery, at least at the beginning of a lawsuit,focuses on record gathering and evaluation. As theclaims of deviation from the appropriate standardof care are refined, the specific records become thetarget of the search.

The following documents are frequently ofvalue.

Face sheetLocate the face sheet on the front of the resident'schart. It features vital information about the resi-dent, specifically, the resident's treating physi-cian(s), scope of treatment, health insurance, nextof kin, and other basic demographic information.'

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 33

Advance DirectivesAdvance directives routinely are located in thefront of the resident's chart. The document reflectsthe resident's wishes regarding care. It may address,for example, whether the resident wants tube feed-ings, pain medications, or any other extraordinarymeans to extend their life.' "The importance of thisdocument, especially in the nursing home setting, isthat the defense can use the document to reflectthat [the resident] did not want to have his or herlife maintained." 6 Conversely, the advance directivemay demonstrate that the resident wanted to pre-serve their life, that they have "not given up andwish to maintain whatever quality of life they hadat the time."7

Consent FormsIn general, the law accords a nursing home residentthe right to receive information about treatmentand to choose the health care received.8 The con-sent form should be compared with the care ren-dered. For example, the lack of a signed consentform signals trouble for the nursing home in a caseinvolving the inappropriate physical restraint of aresident.

Physician Orders and Progress NotesReview verbal, telephonic, or written physicianorders to determine medication issues, treatmentissues, and other aspects of the care provided.Physician's orders are directed mainly to the nurs-ing staff, but also may be directed to other special-ists, such as physical therapists or dieticians.Physician's orders may request particular nursingprocedures, such as turning and repositioning a res-ident at certain intervals, or specify care of woundsas well as medication directions, including dosage,frequency, form, and route of medication to begiven to a resident.

The LNC compares the physician's progressnotes with the nursing notes and correlates physi-cian progress notes with physician orders. Forexample, on December 21, the physician's progressnotes state that the nursing home resident was inquestionable heart failure, evidenced by respiratoryreadings, fluid retention (shown by the mismatchof the intake and output monitoring), and mildlydistended jugular veins.' In addition, the progressnotes relate that the resident was mildlyhypokalemic; that is, a low potassium level.' 0 Acheck of the physician's orders for December 21

reveals that Lasix was ordered to address the heartfailure/fluid retention, and that an oral potassiumsupplement was ordered." The nursing notesreflect that these orders were carried through.Then, on December 22, the physician's progressnotes find the potassium problem resolved and thefluid overload situation stable. 2 In this scenario,the physician's orders and progress notes, the nurs-ing notes, and the patient's response indicate thatthe proper standard of care was observed.

Care PlanEach resident must have an individualized short-term and long-term care plan prepared by an inter-disciplinary team that reflects the resident's needsand preferences. For example, the care plan shouldnote a resident's risk for falls, dehydration, weightloss, or malnutrition and should detail steps orinterventions to prevent a negative outcome. Theattorney relies on the care plan to demonstrate theforseeability of a negative outcome such as the fall-related injury.

Minimum Data SetA nursing home must complete a full assessment ofa resident's condition within fourteen days afteradmission, at least once every twelve months there-after, and "promptly after a significant change inthe resident's physical or mental condition."' 3 Thisinformation is referred to as the Minimum Data Set(MDS).'4 Federal regulations list eighteen topicsthat must be included in the MDS, including a res-ident's customary routine, cognitive patterns, com-munication, mood and behavior patterns, psy-chosocial well-being, physical function, skin condi-tion, and discharge potential.'5

Resident Assessment ProtocolsThe Resident Assessment Protocols (RAP) high-light potential problems identified by the MDS andprovide suggestions for care planning.'6 For exam-ple, one of the questions on the MDS is whether theresident is easily distracted.' 7 If the resident is easi-ly distracted and this behavior appeared or wors-ened in the preceding seven days, the RAP triggersan examination as to whether the resident suffersfrom delirium and how the care plan can bestaddress the condition. " The MDS and RAP are fed-erally mandated assessment tools that create ablueprint for resident care and trigger the at-riskconditions that should be care planned.'9

34 Elder's Advisor

Intake and Output RecordsIntake and output (I&O) records are vital to thenursing home case that involves malnutrition orpressure sores. The I&O reports should be com-pared with the resident's care plan. The care planmay identify the resident as being at risk for dehy-dration, weight loss, or malnutrition. In addition,attention to nutritional status is critical in both theprevention and treatment of pressure ulcers. TheI&O records provide the volume measurements ofall solids and fluids taken in and eliminated by theresident. For example, all oral and tube feedings,including intravenous fluids, blood products, andfluid medications, should be monitored as intake.Output may consist of urine, emesis, diarrhea,blood loss, or drainage from tubes. "[I]t is to thephysician's disadvantage to find out only in pre-trial testimony that nurses were charting a nourish-ment intake of only fifty percent."20

Laboratory ValuesMany lab forms provide information about normallab values, making it easy to determine at a glancewhether a resident is outside normal levels. Whilethis comparison is offered for staff convenience, itis also convenient when investigating records forpossible negligence. For example, laboratoryabnormalities such as low serum albumin accom-panied by weight loss and poor oral intake shouldsignal the presence of malnutrition.

Medication Administration RecordsThe medication administration record (MAR)details current medications being administered tothe resident as well as their dosage, frequency,form, route of administration, time of administra-tion, and to what extent they are effective in treat-ing the specific issue involved. These records aresignificant in cases alleging medication error orchemical restraint employed for staff convenienceor discipline. In addition, in cases alleging malnu-trition, a review of the MAR might reveal that theresident was taking psychotropic medications (suchas Haldol) that affect one's appetite. The resident'sresponse to the medication is noted as is staff mon-itoring of the medicated resident.

The LNC will compare the MAR against thephysicians' orders to determine if the orders werecarried out as requested. In addition, the LNCreviews medication cards (also known as Kardex),

physician progress notes, and facility policy andprocedures for information concerning the medica-tion.

Speech Therapy RecordsA swallowing disorder may necessitate examina-tion of the resident by a speech pathologist, gas-troenterologist, or ear, nose, and throat specialist.2 '

A resident observed drooling and coughing whiletaking meals may require prompt attention from aspeech pathologist.22 Review the records main-tained by these professionals for information andrecommendations regarding resident care. Forexample, dehydration and malnutrition may resultif the resident has some degree of dysphagia (aninability to swallow or difficulty in swallowing)that goes unnoticed or untreated.

Physical and Occupational Therapy Records"The physical therapist is responsible for providingrehabilitative and restorative services to majormuscle groups to restore function, strength andmobility. The occupational therapist works mainlywith the muscles and nerves of the upper extremi-ties (hands, arms, shoulders) to improve strength,mobility and dexterity."23 These records will show,for example, whether the resident was taught howto use adaptive equipment.

Dietary/Meal FormsIf the case involves the nutrition and feeding of aresident, the LNC will compare several forms ofdocumentation to confirm abuse or neglect. For areview of weight loss and/or nutritional problems,the following forms will be reviewed: dietary/mealforms, registered dietician/nutritional consultantforms and progress notes (many times recommen-dations made by this consultant are not followedby the nursing staff), I&O records, physicianorders and physician progress reports, and nurses'notes.

Policy and Procedure ManualsPolicy and procedure manuals including, but notlimited to, the Nursing Policy and Procedure Man-ual, Administrative Policy and Procedure Manual,Infection Control Policy and Procedure Manual,and Laboratory Policy and Procedure Manual arecreated by the nursing home and dictate a standardof care to follow. Request the table of contents for

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 35

each of the manuals. The LNC will review this Personnel Filesinformation and suggest which manuals apply to A nursing home has a duty to exercise reasonablethe case issues. (A sample table of contents is care in the selection of its staff.2 4 Thus, for exam-shown in Exhibit 1.) ple, if a home hires and retains an employee even

Exhibit 1. Pine Crest Nursing Home Nursing Home Policy and Procedure Manual

TABLE OF CONTENTS

ISSUE DATE: October 1985REVIEW DATE:REVISE DATE: March 1999

INTRODUCTORY MATERIALNursing Philosophy IDepartment of Nursing Objectives IINursing Organizational Structure IIISpecial Care Units Standards Review IV

GOVERNANCEPolicy & Procedure Protocol 101Policy & Procedure Development & Implementation 102

NURSING ADMINISTRATIONAgency Nurses 201Education/Orientation

Mandatory Requirements 209Educational Programing 210Tuition Reimbursement 211Continuing Education 212Orientation Schedule 213Medication Certification 214Preceptor Program 215

RESIDENT RELATED CARE-1400Admission/Transfer/Discharge Resident Teaching 1401 A

Admission of a Resident to a Unit 1402 ADischarge of a Resident. 1403 ATransfer of a Resident-Unit to Unit 1404 ATransfer of Resident to Another Facility 1405 A

Diagnostic TestsElectrocardiogram-12 Lead 1401 BEndoscopic-ERCP 1402 BGlucose Testing-Blood 1403 BLumbar Puncture 1404 B

Treatments & ProceduresAdministration of Blood Products 1401 CEnteral Feedings

Gastrostomy/Nasogastric Tubes 1402 CJejunostomy Tubes 1403 C

Intravenous Therapy 1404 CIntubation 1405 CPressure Sore Prevention & Care 1406 C

36 Elder's Advisor

though a properly conducted background checkwould have revealed a criminal record, the homecan be held liable for a battery committed against aresident" or a visitor.26 The facility's personnel filesshould contain information about prehiring screen-ing (criminal background checks), proof of statelicensure, satisfaction of continuing educationrequirements, and letters of accomplishment orreprimands.

In addition, the personnel files should containperformance reviews. "Each facility must completeperformance review of every nurse aide at leastonce every twelve months, and must provide regu-lar in-service education based on the outcome ofthose reviews."27 The education must consist of atleast twelve hours per year2" and address areas ofweakness in a nurse's aide's performance reviews,and, if a nurse's aide cares for residents with cogni-tive impairments, the care of the cognitivelyimpaired."

Log or Report BooksThe LNC reminds the attorney to undertake areview of log or report books which have beenmaintained by the individual facilities for internalcommunication, for useful information about theresident that does not appear in the resident's nurs-ing home record. Attorneys frequently overlookthis information during discovery.

Staffing DocumentsTo determine how many staff members were work-ing on the date and time of an alleged incident,staffing documents, such as time sheets or workschedules, should be requested. This data allowsthe LNC to calculate a staff-to-resident ratio. Didthe facility hire enough staff to deliver the neces-sary care to their residents? If not, "residents maynot be fed, hydrated or repositioned adequately.Chemical and physical restraints are used in lieu ofactivities and exercise. Negative outcomes, includ-ing pressure sores, are the result."30

Quality Assessment and Assurance CommitteeMinutesMost nursing homes have a Quality Assessmentand Assurance Committee that meets to considerissues such as falls, pressure sores, skin tears, andother incidents related to facility residents. Theminutes from these meetings are useful in demon-strating a pattern of abuse or neglect. In some

states, this information is privileged and unavail-able through the discovery process. In other states,this material may be disclosed if requested in theproper format.

Organizing Nursing Home RecordsThe sheer number of nursing home records, someof which exceed hundreds of pages, is daunting.Appropriate organization of the nursing homerecords is extremely helpful and cost-effectivewhen the attorney and expert are discussing thefacts of a case. In addition, for cases involving asignificant volume of records, organization of therecords is essential. Otherwise, the LNC will beunable to reconstruct the sequence of events thatled to the resident's injury or death.

Order and PaginationThe LNC makes sure that nursing home and othermedical records are in proper order and correctlypaginated. When ordering copies of such records,do not allow the record retrieval company to pagi-nate them. Confusion will result if the records arepaginated before the LNC arranges them in achronological or medically appropriate order. Onlyafter the LNC has accomplished this should the fileclerk or the LNC consecutively number or paginatethe records.

Labeling Groups of RecordsIf dealing with records from more than one source,such as the nursing home and hospital, label eachgroup according to source. For example, all recordsfrom Oak Lawn Nursing Home are labeled "0."All records from the resident's subsequent hospital-izations at Mercy Hospital are labeled "M."

Multiple Copies of the Same RecordIf a page of the nursing home record also refers, ina significant degree, to events that occurred at adifferent date or time, it should be photocopiedtwice. Clearly mark the second photocopy as to thedate or time of the reference. For example, if arecord dated September 4 describes a resident's fallfrom her wheelchair which caused an injury fallincident on August 4, there should be two copies ofthis report in the record. One copy should bemarked "Sept. 4: duplicate to Aug. 4" and placedin the record chronologically at the September 4date. The other copy should be marked "Aug. 4:duplicate from Sept. 4 and placed directly follow-

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 37

ing the initial injury fall incident report datedAugust 4." This procedure allows the attorney tolocate and relate significant references that wouldotherwise appear only in distant parts of thechronology.

Preparing Bound File of Medical RecordsThe LNC makes accessing resident nursing homeand other medical records user- friendly by placingthe records into a bound file with dividers betweenthe key elements, such as autopsy, consents, con-sultations, laboratory reports, medications, nurses'notes, orders, progress notes, and x-rays. Theattorney attending a deposition where parts of therecord will be introduced as exhibits brings alongthe bound record as well as a clean, numberedrecord-an exhibit file from which to select pagesfor evidentiary purposes."

Charting or Graphing DataThe LNC may chart or graph data and correlate itto other clinical events to make it easier for theattorney to understand what happened in a com-plex case.32 Experience demonstrates that suchitems as blood values, antibiotics, drug doses, anddrug administration become easier to follow whendisplayed graphically.33

Analyzing the Nursing Home RecordMaking sense of a mountain of records seemsinsurmountable without the efforts of the LNC.There are many ways to approach nursing homerecord analysis, depending on the volume ofrecords, the type of information being sought, andthe attorney's experience. In the ideal world, allrelevant observations and interventions are docu-mented on the proper forms and in the propersequence of events. In the real world, documenta-tion errors are inevitable and, in practice, thenumber of errors increases with the length of aresident's stay in the facility. These documentationerrors are usually insignificant; however, at othertimes they are very important. The LNC siftsthrough voluminous medical records in search ofthese significant errors. The LNC also reviews therecords for completeness, determining if any doc-uments are missing.

Learning the LingoUnless the attorney possesses a formal education inmedicine or nursing, the terminology found in a

nursing home record can be perplexing. The LNCcan advance the attorney's understanding of theclinical issues and medical terminology essential todeveloping a strong case or defense. Even whenwords are legible, medicine, like other professions,has developed its own technical language and itsown shorthand.34 Consequently, unless the attorneyknows what to look for and what it means, therecord can be intimidating.

Interpreting Abbreviations, Symbols, andMeasurementsThe LNC interprets abbreviations, signs or sym-bols, and measurements (English, metric, or othersystems) that appear in each type of nursing homerecord. Casual review of the record by the attorneywill underscore the high incidence of medicalabbreviations. A misunderstanding of an abbrevia-tion's meaning may lead to misinformation andconfusion.

Understanding Anatomical DescriptionsAnatomical terms and descriptions are foundthroughout nursing home records and other med-ical (such as hospital or family physician) recordsrelated to the resident's care. The reviewing attor-ney who does not understand them is quickly lost.For example, records repeatedly use anatomicaldirection terminology such as proximal, caudal,saggital, frontal, palmar, and ulnar, among others.An anatomical discussion might involve joints andtheir motions, or refer to nerves, spinal nerve roots,dermatomes, muscles, or muscle innervation. TheLNC assists the attorney in understanding theseterms, for example, by using a diagram of surfaceanatomy or illustrated cross sections through thebody. These demonstrative aides may later be usedduring trial to similarly explain the material tojurors.

Diagnostic, Orthopedic, Neurological, andPsychiatric FindingsAttorneys do not always recognize which diagnos-tic procedures or test findings contribute to a spe-cific diagnosis or to the determination of the sever-ity or treatability of a nursing home resident's par-ticular medical disorder. Thorough case prepara-tion means having the LNC explain the techniquesand diagnostic scope of special diagnostic proce-dures such as paracentesis, cardiac catheterization,electromyography, or magnetic resonance imaging.

38 Elder's Advisor

Resonance imaging is useful in evaluating soft tis-sue injuries because it images the hydrogen atomsor water in the soft tissue areas, which indicatesswelling and injury.

An orthopedic injury may be the cause of litiga-tion if a resident's joint is injured, or if the residentexperiences a loss of the joint's range of motion anddisability results. The LNC describes bone frac-tures and dislocations and explains the terminolo-gy used to describe orthopedic trauma and frac-tures.

The resident's mental status may be extremelyimportant to a variety of legal matters. The LNCevaluates neurological and psychiatric findings thatappear in the medical records. In addition, theLNC considers whether prescription medicationsare relevant to the resident's mental status.

Comparing RecordsDisagreement between different parts of a medicalrecord is common. For example, the physician mayhave failed to read the nurses' notes before record-ing that the resident is doing well with minimalpain. In sharp contrast, the nurses' notes describethe resident's agony and need for considerable painmedication. The physician may have examined theresident when the pain medication was at its peakeffectiveness, and the resident wrongfully assumed

the physician knew of the pain and, therefore, didnot mention it. Sometimes an apparent disagree-ment has a logical explanation. For example, thenurses' notes from the evening shift describe a con-fused and uncooperative resident while the notes ofother nurses and physicians describe the same resi-dent as alert and cooperative. The explanation isthat residents with certain brain disorders havecyclic periods of confusion that are present at onetime of day.

Other useful comparisons involve comparingphysician orders for drugs with the medicationrecords (or nurses' notes) and comparing nurses'notes with physicians' notes. Although the nursingnotes and physician notes are concerned withsomewhat different aspects of resident care, theycomplement one another. For example, compareorder sheets with medication sheets and other nurs-ing records to determine that all ordered medica-tions and treatments were carried out.35

Constructing Event ChronologyThe LNC prepares an event chronology that distillspotentially hundreds of pages of nursing homerecords into several pages of readable, accessibleinformation. A comprehensive chronology includesall care rendered within a specific time period. (seeExhibit 2.) In contrast, a specific chronology con-

Exhibit 2. Comprehensive Chronology

1997 Admission to Rest Haven Nursing Home

Diagnosis: S/P Right CVA w/ L side Paralysis; HX Coronary Artery DiseasePhysical Exam: Alert & oriented; ambulates w/ canePlan: Assistance w/ activities daily living (ADLs) due to stroke deficits. Monitor cardiac

condition.

1998 No change in physical condition. Alert & active, ambulating w/ cane, no cardiac problems

1999 March:

April:

May:

June:

Experienced New CVA. Hospitalized 5 days @ St. Joseph's Hospital. Needs addi-tional physical therapy for strengthening exercises. Ambulating w/ walker. Someconfusion due to CVA. No cardiac problems.

Experienced 2 fall incidents. No injuries due to falls. No cardiac problems.

Fell out of bed on 5/5/99 when attempting to go to bathroom. Two other fallincidents while ambulating in hall and day-room w/ walker. Gait very unsteady,needs 1 to 2 person assistance w/ ambulation at times.

Confusion increasing. Requires increased assistance w/ ADLs. Gait unsteady attimes; usually requires 1 to 2 person assistance as resident leans to the right sideand forgets left side. 6/10/99, while attempting to walk in day-room w/ assistanceof walker & 1 PCA, fell. Complained of right hip pain. Transported to St.Joseph's hospital. Diagnosis fractured right hip

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 39

siders a particular aspect of care such as that pro- A properly constructed chronology navigates

vided by a particular caregiver minute-by-minute the attorney through the discovery process, includ-

or day-by-day. (See Exhibit 3.) ing the formulation of deposition questions. In

Exhibit 3. Specific Chronology

12-1-98 Admitted for 2 week stay while brother in FloridaMedical Diagnosis: Periodic confusion, forgetfulness, constipation, dementia related to alcoholismMedication: FiberCon & Phazyme 95Physical Examination: Alert with intermittent confusion; gait steady without assistanceADMISSION NOTE PER DR. KIM:"Mr. Bogart will be here until after Christmas... needs assistance with bathing & a reminder tochange clothes ... enjoys people ... encourage participation in activities ... no medical problemsexcept constipation, general diet, medications include FiberCon & Phayzme."

12-1-98 NURSING NOTE:Arrived on unit, ate well at dinner ... oriented to unit ... no complaints . . VSS

12-2-98 NURSING NOTE:Assisted with activities of daily living (ADLs) minimal. Needs reminder to pick up clothing & posses-sions. Out on unit most of day. No complaints.

12-3-98 NURSING NOTE:No complaints, minimal confusion noted but only when asked what the date was.

12-4-98 NURSING NOTE:Relaxing in his room, no complaints, minimal assistance with ADLs

12-5-98 NURSING NOTE:Minimal assistance with ADLs, appetite good, no complaints. 2:00 pm wandering in and out of variousrooms, when questioned, stated he was "lost and could not find his bedroom." Appears to be moreconfused than normal, responds appropriately to verbal interventions and redirection.

12-6-98 NURSING NOTE:Up and about, no complaints.

12-7-98 NURSING NOTE:No complaints, minimal assistance with ADLs, appetite good.

12-8-98 NURSING NOTE:Minimal confusion in am, however became more confused as day progressed ... appears more con-fused than normal ... found taking nap in another resident's room ... responds appropriately to ver-bal redirection.

12-9-98 NURSING NOTE:Minimal confusion, minimal assistance with ADLs, appetite good.

12-10-98 NURSING NOTE:9:00 am minimal confusion and assistance required with ADLs5:00 pm unable to find resident on unit, not in room, not in day-room, searched all other patient'srooms. Call to security found Mr. Bogart on 5th floor in day room watching TV. Unable to relate howhe got off floor and onto 5th floor.

40 Elder's Advisor

Exhibit 3. Specific Chronology (continued)........... I........................................................................................ ............ ..... ..... ................. .. ... .. ... .... ... .. ........ ....... .. ... ....... ..... ................... ............. ....... .. ... .. ... .. ..... ..

12-11-98 NURSING NOTE:Alert but intermittently confused ... assisted with ADLs.

12-12-98 NURSING NOTE:No complaints, uneventful day.

12-13-98 NURSING NOTE:Assistance with ADLs ... appetite good, no complaints.

12-14-98 NURSING NOTE:Resident relaxing in room, no complaints ... active in activities.

12-15-98 NURSING NOTE:Appears to have slept well ... minimal assistance with ADLs.

12-16-98 NURSING NOTE:Confused today ... redirected easily ... no complaints.

12-17-98 NURSING NOTE:Up and about on unit, active, no complaints.

12-18-98 NURSING NOTE:Minimal assistance with ADLs, needs reminder to pick up things ... appetite good.

12-19-98 NURSING NOTE:Up and about12:30 pm: escorted onto unit by security staff that states resident "found wandering around the park-ing lot by a visitor, appearing lost and confused." Assessment reveals increased confusion, no com-plaints. Supervisor advised of past events.

12-20-98 NURSING NOTE:No complaints, appeared to sleep well, appetite good.

12-21-98 NURSING NOTE:Resident relaxing in room ... watching TV & participating in activities.

12-22-98 NURSING NOTE:Confused intermittently... no complaints.

12-23-98 NURSING NOTE:9:00 am no complaints, up and about unit.9:00 pm resident was not on unit at bedtime. Security out searching grounds... Nursing Supervisornotified of situation. Dr. Kim called and notified of situation. Nursing Supervisor placed call to localpolice department listing resident as possible missing person.

12-28-98 NURSING SUPERVISOR NOTE:Received call from St. Ann's Hospital. Resident admitted to ICU on 12-23-98 after paramedics foundhim wandering in the streets. Resident died on 12-28-98 of respiratory failure.

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 41

addition, the chronology assists throughout settle-ment negotiation and during trial. If the case goesto trial, a detailed chronology introduces the juryto the events that led to the resident injury ordeath.

Expert witnesses appreciate the time saved byusing the chronology and "are greatly impressed bythe attorney or firm that can present such massivematerial in such a succinct, cogent and efficientmanner."36 Of course, in jurisdictions that allow orrequire opposing counsel to discover all recordsand information reviewed by expert witnesses, theattorney must decide whether to risk turning overthe chronology to opposing counsel.37

Searching the LiteratureAnalysis of the nursing home record may requirethe LNC to identify, locate, and read medical liter-ature specific to the issues presented by the case.The consultant may review, for example, Gray'sAnatomy, Merck Manual of Diagnosis andTreatment, Current Medical Diagnosis &Treatment, Mosby's Drug Guide for Nurses, CecilTextbook of Medicine, Merritts' Textbook ofNeurology, Physician's Desk Reference, Stedman'sMedical Dictionary, Taber's Cyclopedic MedicalDictionary, or The Lippincott Manual of NursingPractice. In addition, the LNC's search may useresources available on the Internet includingGrateful Med or MEDLINE. The LNC provides awritten summary of the literature for attorneyreview. If the expert witness requires research ofthe medical literature, it is cost-effective to employthe LNC to work with the expert concerning thisresearch.

Identifying the Standard of CareLitigating the nursing home case is a battle overstandard of care, and nursing home records are allthat remain of the caregiving.3 These records moreor less reflect what was done on the resident'sbehalf and often constitute the best evidence ofdepartures from the standard of care." The LNCwill offer her impression of the resident's care.40

(See Exhibit 4.)

Protected Work ProductAll work produced by the LNC is considered attor-ney work product and, therefore, is protectedagainst discovery. In contrast, any report producedby a testifying expert witness is discoverable. Thus,

the attorney should consider using the LNC toevaluate and provide opinions on the liability of allhealth care providers including physicians, nurses,facility administration, and various therapists andother technicians.

Final ThoughtsTeaming an attorney with a LNC makes for a pow-erful, effective litigation team. The medical trainingand expertise of the LNC provides the attorneywith an indispensable tool when entering the unfa-miliar realm of the medical profession. Like aninterpreter of a foreign language, the LNC trans-lates the language of the nursing home into a lan-guage that the attorney can understand.

Endnotes1. Elliott B. Oppenheim, Examining Medical Records:

How to Know What Is Said When You Read Whatthe Doctor Wrote, 82 A.B.A. J. 88, 88 (Mar. 1996)[hereinafter Examining Medical Records].

2. See generally Patricia W. Iyer & Deborah D.D'Andrea, The Legal Nurse Consultant: AnEssential Team Member, in NURSING HOMELITIGATION: INVESTIGATION AND CASE PREPARATION

415-77 (Patricia W. Iyer ed., 1999) [hereinafter Iyer& D'Andrea 1999]; Patricia W. Iyer & Deborah D.D'Andrea, The Legal Nurse Consultant: AnEssential Team Member, in NURSING MALPRACTICE725-96 (Patricia W. Iyer ed., 1996); BonnieFaherty, Legal Nurse Consultants: Who Are They?,1 J. NURSE L. 37 (1995).

3. See Deborah D. D'Andrea, Role of the Legal NurseConsultant in Nursing Home Litigation, 12NAELA Q. 12, 12 (Fall 1999) ("The [legal nurseconsultant] is able to interpret what is, as well aswhat is not, documented within the medicalrecord.").

4. See Jeff E. Rusk, The Truth Is Out There:Discovery from a Plaintiff's Perspective, ANATOMYOF NURSING HOME MALPRACTICE (ABA Mar. 13,1999) (unpublished manuscript on file withauthor).

5. All federally certified health care providers, includ-ing nursing homes, must inform each resident oftheir right under state law to execute an advancedirective. See 42 U.S.C. SS 1395cc(f)(1)(A)(i),1396a(w)(1)(A)(i); 42 C.F.R. § 489.102(a)(1)(i).

42 Elder's Advisor

6. Rusk, supra note 4, at 2.

7. Id.

8. See 42 U.S.C. §§ 1395i-3(c)(1)(A)(i),1396r(c)(1)(A)(i); 42 C.ER. §483.10(b)(3) (corre-sponding regulations to the federal Nursing HomeReform Law reiterate the right to be informedabout treatment).

9. See WANDA L. HURR, ATTORNEYS' GUIDE TO

MEDICAL RECORDS § 207 (Debra Tillinghast ed.,1993) (detailing what to look for in physician'sorder).

10. See id.

11. See id.

12. See id.

13. 42 U.S.C. §§ 1395i-3(b)(3)(C)(i)(II),1396r(b)(3)(C)(i)(II).

14. See 42 U.S.C. 5§ 1395i-3(b)(3)(A)(ii), (f)(6)(A),1396r(b)(3)(A)(ii), (f)(6)(A).

15. See 42 C.ER. § 483.315(e).

16. See HEALTH CARE FINANCING ADMIN. STATE

OPERATIONS MANUAL § 4145.2 (defining ResidentAssessment Protocols).

17. See ERIC M. CARLSON, LONG-TERM CAREADVOCACY 5 2.08[1] (1999).

18. See id.

19. See Lesley Ann Clement, Litigating the PressureSore Case Against a Nursing Home, 12 NAELA Q.8, 10 (1999).

20. Jeffrey M. Levine, Pressure Ulcers in the NursingFacility: Medicolegal Considerations for Physicians,NURSING HOME MED., May 1994, at 32, 36.

21. See id.

24. See Ralph Gerstein, Nursing Home Litigation, THEELDER LAW PORTFOLIO SERIES, Feb. 1996, at §13-7.1(b).

25. See id. (citing Rodebush v. Oklahoma NursingHomes, 867 P.2d 1241 (Okla. 1993)) (offendingemployee with criminal conviction for attemptedmurder slapped a nursing home resident).

26. See id. (citing Deerings West Nursing Ctr. v. Scott,787 S.W.2d 494 (Tex. Ct. App. 1990) (findingnursing home liable for a battery committed by anemployee with a long record of criminal convic-tions for theft).

27. 42 C.ER. S 483.75(e)(8); 42 U.S.C. S§ 1395i-3(b)(5)(E), 1396r(b)(5)(E).

28. See 42 C.ER. § 483.75(e)(8)(i).

29. See 42 U.S.C. § 1395i-3(b)(5)(E), 1396r(b)(5)(E);42 C.ER. S 483.75(e)(8)(ii), (iii).

30. Clement, supra note 19, at 10.

31. See Oppenheim, supra note 1, at 88.

32. See id.

33. See id.

34. See Elliott B. Oppenheim, A Trial Lawyer's Guideto the Medical Record, 84 ILL. B.J. 637, 637 (Dec.1996) [hereinafter Oppenheim].

35. See HURR, supra note 9, at § 313.1(comparing thetreatment and responsiveness of one discipline withanother).

36. Id. at § 313.3 (using an event chronology to pre-pare expert witnesses).

37. See id.

38. See Oppenheim, supra note 34, at 637.

39. See id.

22. See id. at 38.

23. Mary L. Lubin, Inside the Nursing Home: TheStructure, in NURSING HOME LITIGATION

INVESTIGATION AND CASE PREPARATION 13, 19(Patricia W. Iyer ed., 1999).

40. See generally Iyer & D'Andrea 1999, supra note 2,at 430-33 (highlighting deviations from the stan-dard of care in a nursing home case).

ARTICLE Role of the Legal Nurse Consultant in Gathering and Analyzing the Nursing Home Record 43

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