Archives March 2022

In this blog, I’ll be reviewing Independent Medical Examinations (IME’s): What they are, the role of the IME examiner, and IME nurse observer.

What is an IME: Independent Medical Examinations (IME’s) are medical examinations performed by a qualified physician or other examiner who has not previously treated the injured client.  The IME examiner’s goal is to evaluate the injured client’s prior treatment, and the current condition of the injuries reported by the plaintiff.  The IME serves as ammunition, a means to challenge claims, lawsuits, and evaluations of injured workers’ treating physicians.  IMEs are also referred to as Defense Medical Examinations (DME’s) as the provider examining the client was hired by the defendant’s attorney, or insurance company to defend their side of the case. 

IME Examiner: The role of the IME examiner is restricted to examining only what pertains to the event in question, questioning about the nature of the accident, or how the injury occurred.  The IME examiner is not permitted to ask questions that would raise liability issues/concerns.  E.g., inquiring about cell phone use while driving.  

IME Nurse Observer: Legal Nurse Consultants are well qualified to serve as IME observers.  LNC’s have the dual nursing, and legal nurse consulting educational background (LNC educational background should be verified by the hiring attorney client), hands-on clinical experiences to support application of knowledge, and skill sets, strong leadership acumen, and effective communication skills.  These qualities leverage IME nurse observers favorably to professionally, and diplomatically hold the IME examiner accountable. 

Roles of the IME nurse observer:

• Educate the client on the IME process, procedures, limitations per the state’s regulations, and case specific court paperwork, as well as office procedures (E.g., evolving Covid-19 safety protocols)
• Observe the examination, and take detailed notes during the examination specific to tests performed, client’s response to tests, type of focused assessment performed, completion of comprehensive head to toe assessment, omissions in examination, or tests.  
• Compile time stamped authoritative reports of all that was said and done during the examination to be compared with the IME examiner’s reports  
• Be aware of what screening and diagnostic tests are permitted within the IME examiner’s scope of practice, and based on the alleged injury
• Object to inappropriate history taking, screening processes, and tests not relevant to the alleged injury
• Serve as a client advocate
• Testify regarding the examination (E.g., in the event the IME examiner’s report differs from the IME nurse observers report) 
  • Paralegals are at time sent to attend IMEs to act as legal representatives as they are knowledgeable about what is and is not permitted during an IME.  However, paralegals cannot testify in the event a discrepancy is identified. 
  • Paralegals do not have the medical training to support a critical IME observation.
  • The profession of nursing is viewed as the most honest and ethical profession. When nurses serve as testifying experts, they are often viewed honorably by jury members.     

Know Your State Codes and Regulations: Review your states Code of Civil Procedure, and regulations.  In New York State, for example, the plaintiff is “entitled to be examined in the presence of his or her attorney or other legal, or non-legal  representative, as well as interpreter.”  Additionally, in NYS, women have the right to have a female IME examiner, or a woman of their choosing present when the IME is performed by a male IME examiner.  This section of the NYS Labor Law (Section 206A) is often violated. 

Importance of Knowing Basic IME Rules: Failure to comply with the rules and regulations of IMEs can influence the outcome for the client, and the lawsuit. 

Know your state’s Code of Civil Procedure as each state has different regulations.

• Identify yourself upon entry into the examination room
• Observe examination without interference
• Refrain from bringing surveillance materials (applicable to NYS) (Know your state’s Code of Civil Procedure as each state has different regulations)
• If the IME examiner refuses to allow the IME nurse observer into the examination room, encourage the client to leave the examination location. The IME nurse observer should then follow up with the client’s attorney
• Prevent the client from completing unnecessary intake forms that could be misinterpreted.  Support the opportunity for relevant intake questions to be asked in the presence of the IME nurse observer to allow for recording
• Ensure that the client does not sign documents unless the legal team permits
• No member from the defense team should be permitted to attend the IME examination

References:

New York Committee for Occupational Safety and Health https://www.nycourts.gov/reporter/webdocs/NYCOSH_Independent_Medical_Examinations.htm

Official Compilation of Codes, Rules, and Regulations of the State of New York, Department of Labor, Workers’ Compensation

www.NYSenate.gov

P.S. Comment and Share: What has been your experience with IMEs?  Historically, who have you retained as IME observers? What worked well? What didn’t work well?

When is missed or delayed colorectal cancer (CRC) considered negligence?

In this blog, I’ll be reviewing the elements that are reviewed to identify if a missed, or delayed CRC diagnosis constitutes negligence.  I will also provide some examples of breaches in the standards of care specific to missed CRC cases.  As a means to promote greater awareness of colorectal health, and CRC awareness, I will also share current statistics, screening recommendations from authoritative sources, risk factors for CRC, and CRC symptoms.

Evaluating your CRC Case for Negligence / Mitigating Risk for Medical Negligence:

Having an awareness of the current standards of care, and rendering care in accordance to current standards of care specific to risk-based screening, and treatment reduces the risk of medical negligence.  A missed or delayed diagnosis of CRC is associated with greater morbidity and mortality.  Literature suggestions that delays in diagnosis are related to avoidable factors, such as improving the quality of bowel preparation, ensuring further investigations in patients with incomplete endoscopies, and colonoscopies, having endoscopies performed in accredited endoscopy centers, and timely follow up when non-cancer pathology is identified.  

Secondary to the fact that 2%-6% of CRC cases are missed following colonoscopy, most professional societies recommend counseling patients about this “miss rate.”

When evaluating a missed CRC diagnosis case for negligence, the four legal elements of negligence must be proven:

1. Duty: Did the defendant have a duty to the plaintiff?
2. Breach of Duty: Did the defendant fail to deliver care that an ordinarily careful, reasonable, and prudent person would do under the same or similar circumstance? Were there acts of omission related to the standards of care being met?

A. Failure to identify that the patient was at high risk for CRC.

B. Failure to recognize the patient’s symptoms as a risk factor for CRC.

C. Failure to order CRC screening.

D. Failure to include CRC in the differential diagnoses.

E. Failure to order appropriate tests, and/or referrals following a diagnosis of CRC

3. Damages & Injuries: Were there damages or injuries, such as economic and non-economic damages, that the plaintiff is alleging?

4. Causation: Did the acts of the defendant cause the damages, or injuries that the plaintiff is claiming?

Statistics:

• CRC is the third most commonly diagnosed cancer in men and women combined in the U.S.
• CRC is the second leading cause of cancer death in men and women combined in the U.S.

Estimates for 2022:

• 151,030 people will be diagnosed with CRC in the U.S.
• 52,580 people will die from CRC in the U.S.

Young-onset CRC is on the rise

• Rates for people under 50 increased 2.2% each year
• Median Age of Diagnosis: Age 66 (both men and women)
  

Screening:

All men and women without a family history, or risk factors for colorectal cancer (CRC) should begin CRC screenings at age 45, according to the American Cancer Society.

With screening, CRC is one of the most preventable cancers, and highly treatable if caught early.

If you have certain risk factors, you may need to be screened earlier than 45.

Risk Factors:

• Family history of CRC or polyps
• African American
• Have a genetic link to CRC such as Lynch Syndrome
• Have a personal history of cancer
• Have ulcerative colitis, inflammatory bowel disease, or Crohn’s disease

Types of screening chart

Symptoms: CRC often does not cause symptoms early on.  When symptoms do occur, they may include: 

• Change in bowel habits such as diarrhea and/or constipation, a change in the consistency of your stool, or stools that are more narrow than usual.
• Persistent abdominal discomfort such as cramps, gas, or pain. Feeling full, bloated, with or without  nausea & vomiting.
• Rectal bleeding.  You may notice blood in or on your stool that is bright red, or the stool may be black, tarry, or brick red.
• Weakness and/or fatigue associated with anemia (a low red blood cell count).
• Unexplained weight loss

References:

Colorectal Cancer Alliance. (2022). American Cancer Society’s Cancer Statistics Center and Colorectal Cancer Facts & Figures 2020-2022.

Hayes B., et al. (2019). Why are we missing colorectal cancer? A study investigating the cause of delays in diagnosis. BMJ Journal. 68:A190

P.S. Comment and share your experience with reviewing the standards of care to develop your delayed or missed CRC diagnosis case, while considering the “miss rate.”

In this blog, I’ll be reviewing U.S. annual statistics specific to injuries requiring medical care, as well as the types of insurance claims Barber Medical Legal Nurse Consulting, LLC has the expertise to support specific to case development.  I’ll provide some common examples of insurance liability defense cases, as well as some common defenses.  I’ll close with examples of the scope of work our Senior CLNC performs specific to insurance liability cases. 

2020 Statistics:

24.8 million injuries in the U.S. require medical care

200,955 unintentional injury deaths in the U.S. annually

6 million motor vehicle accidents in the U.S. annually

40,698 motor vehicle accident deaths in the U.S. annually

87,404 unintentional poisoning deaths in the U.S. annually

Annual number of injuries on construction job sites:

1. 266,530 cases involving sprains, strains, tears
2. 128,220 cases involving injuries to the back
3. 211,640 cases involving falls, slips, trips

Types of Insurance Claims Barber Medical Legal Nurse Consulting, LLC Supports (Case Development)

• Commercial liability (business insurance)
• Personal liability (automobile, homeowners, property)
• Workers’ compensation
• Medical Personal Injury Protection (no-fault insurance)

Insurance Liability Defense Case Examples (Commercial and Personal Injury Allegations):

• slips, trips, and falls resulting in orthopedic injury such as rotator cuff injury
• automobile accidents resulting in spine injury such as “whiplash”
• injury from dental procedures such as broken teeth
• food poisoning
• nail salon injury
• injury from urogynecological interventions such as surgical mesh implants resulting in mesh exposure and erosion causing vaginal scarring, fistula formation, painful intercourse, pelvic, back and leg pains

Common Defenses for Insurance Liability Cases:

• plaintiff’s injuries were present before the incident
• mechanism of injury does not correlate with alleged injury
• condition is degenerative, not acute or traumatic
• plaintiff delayed seeking treatment after incident

Barber Medical Legal Nurse Consulting, LLC Supports Insurance Liability Case Development (Scope of Services):

• Interacts with members of each case (E.g., claims representative, defense attorney, insurance company, education division, special investigations unit for fraud or criminal investigation)
• Investigates claim
• Reviews medical documents, medical records, school, and employment records, medical bills
• Reviews police and accident reports
• Reviews photographs
• Organizes records
• Performs medical research
• Performs case analysis and report writing including development of a chronology
• Educates staff to support a successful outcome
• Submits requests for production, interrogatories, preparation of deposition questions for claims department, and defense attorney
• Attends independent medical examination (IME)
• Interviews witnesses
• Obtains a life care plan
• Identifies and locates testifying experts, and medical reviewers
• Reviews and analyzes testifying expert reports and depositions

References:

Association for Safe International Road Travel. https://www.asirt.org/safe-travel/road-safety-facts/

National Center for Health Statistics. https://www.cdc.gov/nchs/fastats/accidental-injury.htm

United States Bureau of Labor Statistics. https://www.bls.gov/iif/

P.S.  Comment and share about your role in insurance liability case development.