Leveraging the Defense Dollar in Medical Malpractice Cases

By Nancy Fraser, RN, CEO

You wouldn’t ask a neurologist to prepare a demurrer. So why do insurance companies ask claims adjusters and attorneys to interpret medical records and opine on the standard of care? Since experts are hired for all other elements of cases, maybe we shouldn't hastily dismiss the value of an expert review of the medical records. After all, medical records are at the heart of all medical malpractice cases.

Legal staff and adjusters lack the expertise to assess the value of key medical data. Medical practitioners aren’t trained in preparing reports for litigation which may result in poor quality work in exchange for exorbitant fees for their time. Not only do these practices ignore the need for expertise, they can compromise the strength of each case. Rectify this by strategically placing a medical record review expert on your case management team to evaluate and you can choose to defend on breach of standard of care or causation. Legal nurse consultants are the perfect experts to steer your cases in the most advantageously effective and cost efficient direction.

Expertise in any area only comes with years of experience. Malcolm Gladwell explores the concept of 10,000 hours in his book Outliers by considering how much time must be invested in order to become an expert in anything. When it comes down to it, lawyers are experts in the law, so we should rely on their expertise when it comes to the law. When expertise is needed regarding medicine or medical records, rely on doctors and nurses. Medical record reviews require the same level of expertise, experience, and training, but also need a bridge between the legal and medical elements involved. Legal nurse consultants can provide both the expertise and the bridge.

Plaintiff attorneys are becoming more savvy and sophisticated. They have to choose their med mal cases more carefully. It is becoming more common in their practice to have records reviewed prior to filing law suits. And despite legislative measures devised to reduce frivolous claims, medical malpractice claims are a growing reality. In order to match their methods and handle the growing volume, defense counsel should seriously consider implementing this expert level of review in the management of all medical malpractice claims. Otherwise, you are giving the plaintiffs a head start or an advantage by not having a parallel record review process in place.

In this economic climate, it is vital to use your assets efficiently. Don’t pay a lawyer to go a nurses job. Let attorneys be free to do what they are trained to do and litigate claims. Medical records contain some of the most important, case-informing data of any resource. Their review cannot be limited to a cursory aspect of case management. With proper analysis, medical record reviews can account for massive savings of time and money while adding precious strategic value. Legal nurse consultants have experience and expertise needed to review records and provide insurance companies and law firms with the information to defend claims appropriately. It is essential, now more than ever, to embrace nurse record reviews in your litigation management to control outrageous costs associated with defending claims.

People undervalue the role a good medical record review plays in the foundation of a case. 70% of the
evidence in a medical malpractice claim is the medical records. Lay your foundation from the beginning to support the defense you will build by starting with a proper review of the medical records.

Having an attorney or licensed physician review records to determine if there was a breach in the standard of care is both complicated and expensive. Legal nurse consultants are experienced and capable of making standard of care analysis for nursing and medical deviations. Although not all are the right expert to opine in court, their skill sets can be utilized to leverage your defense dollar early in the claims process to understand where your exposure lies, determine the extent of the injury, choose which experts to engage, and arm you with the medically relevant data to outline your strategy moving forward.

An early evaluation in the claims process ensures adjusters are not bogged down with the review of records. A brief abstraction and analysis provides a clear determination of merit to understand standard of care deviations and areas of exposure prior to forwarding a file to an attorney and providing the opportunity to settle before incurring unnecessary attorneys’ fees. By outsourcing the initial review of medical records to experts for an analysis, it enables claims management to handle more cases, settle sooner, and set reserves appropriately.

Should the claim require an attorney you can reduce associated expenses by providing them with a chronology and expert analysis as tools through the litigation process, allowing them to focus
on building a defense by understanding the case’s strengths and weaknesses from the onset. If no breach in standard of care occurred, this will also be revealed through a thoughtful review of
the medical records, giving you and your team the information necessary to get the claim dismissed.

If a claim is sustainable, mitigation damages can be difficult, but is possible through a thorough analysis by a nurse consultant company that specializes in reviewing medical records. Record review
reports need to include, in addition to a chronology of events and deviations in care, the identification of case strengths, weakness, and potential deponents; these are invaluable in discovery and
the defense of the claim. Then the initial evaluation reports can be used as communication tools and references throughout the life of litigation. All this can be done prior to obtaining expensive
testifying experts.


Should the claim require the retention of experts, a legal nurse review will not only identify which experts to obtain, but what records they need to review. This allows you to save on record review costs by reducing the time it takes for experts to read irrelevant and/or redundant records. In addition, proving experts with a chronology reduces their time in figuring out what occurred and what elements of care to investigate and opine on. The role of a legal nurse consultant and their work product has a cost saving impact throughout litigation.

However, not all legal nurse consultants are the same. Selecting the right team to review your records is as critical as selecting any of your other experts. Assessing clinical experience and specialties, considering education, training and certification, and evaluating consulting exposure and abilities, are all important components in selecting legal nurse consultants. As with most experts, there are varying degrees of competence, ability to execute, and speed at which the produce. In my experience, no matter how well a single reviewer analyzes the records, (even a seasoned nurse consultant), a single review does not compete with a multi-level review. Every record should be reviewed by not one, but two specialized legal nurse consultants. Through this collaborative effort, each nurse expert adds his or her own distinct analysis, building reports that account for every interpretation and strategic consideration extractable from medical record data. A layered quality assurance process should be in place to ensure that no stone goes unturned and that you get all of the advantages up front.

Your claims need nurse consultant reviews and a process that enable you to outsource the review of medical records with comfort and confidence. The result is that you will get stronger data, sooner, and strategic insight that can singlehandedly change your position in a case.

Partnering with a legal nurse consulting firm gives you a competitive edge. With upfront, tailored budgets, this approach to record review and claim management provides the flexibility to work with your schedule and budget while discovering the vital information you need. The work is delivered in timely, thorough, customizable reports that make even the most complicated case comprehensible
for all levels of client staff.


Author:
Nancy E. Fraser, R.N. is CEO of Med Legal
Consulting Source, which she founded in
2000 to provide customized medical record
review services to insurance companies
and attorneys for plaintiff and defense
counsel.