Blog

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.

In this blog, I’ll be reviewing some causes of perinatal litigation, the importance of providing care according to current standards of care, ways to mitigate perinatal liability exposure, common allegations specific to alleged injuries resulting from shoulder dystocia, and current standards of care intended to decrease professional liability exposure, and reduce the risk of iatrogenic (relating to injury or illness caused by medical examination or treatment) maternal and neonatal injury.  

Causes of Perinatal Litigation:  Findings suggest that allegations against nurses, certified nurse midwives, physicians, and/or institutions often result from a lack of knowledge or commitment to practice in accordance to current standards, guidelines, and evidence.  In other instances, care is rendered according to personal experiences, preferences, and history of practice over a long period of time during which the provider has not experienced an adverse outcome.  Moving toward a science based clinical practice environment, rather than “that’s the way we’ve always done it” is a challenge to promoting safe care (AWHONN, 2014; AWHONN, 2021).  

Ways to Mitigate Perinatal Liability Exposure:  Certainly, all adverse events are not preventable, however, practices inconsistent with current standards of care offer opportunity for the plaintiff to demonstrate a breach of the standard of care (AWHONN, 2021).  One key way to reduce liability exposure is to provide care consistent with current standards of care.  

Shoulder dystocia is a common area of perinatal litigation with common allegations including:

• Failure to accurately predict the risk of shoulder dystocia
• Failure to diagnose labor abnormalities
• Failure to appropriately initiate shoulder dystocia corrective maneuvers
• Failure to prioritize delivery of posterior arm
• Failure to perform cesarean birth
• Application of forceps or vacuum at high station, or continued application without evidence of fetal descent, resulting in shoulder dystocia
• Application of fundal pressure during shoulder dystocia, further affecting the shoulder and delaying birth, thereby resulting in maternal-fetal injuries

Standards, Guidelines, Recommendations:

• Although there are a number of known risk factors, shoulder dystocia cannot be accurately predicted or prevented (ACOG, 2017)
• When shoulder dystocia is suspected, the McRoberts maneuver should be attempted first because it is a simple, logical, and effective technique (ACOG, 2017)
• In cases where the McRoberts maneuver and suprapubic pressure are unsuccessful, delivery of the posterior arm can be considered as the next maneuver to manage shoulder dystocia (ACOG, 2017, AWHONN, 2021)
• Simulation exercises and shoulder dystocia protocols are recommended to improve team communication and maneuver use because this may reduce the incidence of brachial plexus palsy associated with shoulder dystocia (ACOG, 2017)
• The Joint Commission’s Sentinel Event Alert, Preventing Infant Death and Injury during Delivery, recommends conducting periodic drills for obstetric emergencies such as shoulder dystocia (AWHONN, 2021)

P.S. Comment and share your experience with a shoulder dystocia litigation. What were the strengths and weaknesses of the case?

References

Simpson K.R. et al. (2021). AWHONN Perinatal Nursing, 5^th ed. Wolters Kluwer

Simpson K.R. & Creehan P.A. (2014). AWHONN Perinatal Nursing, 4^th ed. Wolters Kluwer, Lippincott

The American College of Obstetricians and Gynecologists. (2017). Shoulder dystocia [Clinical Practice Bulletin #178]

Joint Commission. (2004). Preventing infant death and injury during delivery. Sentinel Event Alert Issue 30

In this blog, I’ll be reviewing the statistics specific to mortality associated with heart disease, the monetary cost of heart disease in the United States, risk factors for heart disease, as well as available “tool kits” for the management of heart disease.

Prevalence in the U.S.:  Approximately 659,000 people in the U.S. die from heart disease annually, accounting for 1 in every 4 deaths.  Heart disease is the leading cause of death in the U.S. (Department of Health and Human Services (2022).

Monetary Cost: Heart disease cost the U.S. approximately $363 billion annually from 2016 – 2017.  This included the cost of health care services, medications, and lost productivity due to death (Department of Health and Human Services (2022).

Risk Factors: High blood pressure, high blood cholesterol, and smoking are key risk factors for heart disease.  There are other medical conditions and lifestyle choices that can also put people at a higher risk for heart disease, including, but not limited to:

• Diabetes
• Overweight and obesity
• Unhealthy diet
• Physical inactivity
• Excessive alcohol use

Management by Standardization of Evidence Based Practice and Use of “Tool Kits”: It is recommended that providers make a commitment to following the most current clinical guidelines for the management of high blood pressure control to ensure that care is cost-effective, evidence based, and accessible and controlled amongst all populations. The use of the following “tool kits”, in conjunction with The Surgeon General’s Call to Action to Control Hypertension is a recommended approach to implementing protocols, and using data to improve health outcomes.   

1. Lifestyle changes   

Eat Smart, Move More!

Recipes for a Heart-Healthy Lifestyleexternal icon

2. Health equity

Alliance for the Million Hearts^® Campaign Partner Toolkit

Reducing Out-of-Pocket Costs for Medications

Grady Implementation Guide

3. Self-measured Blood Pressure Monitoring

Self-Measured Blood Pressure Monitoring

Self-Management Support and Education

4. Medication Adherence

Pharmacy: Collaborative Practice Agreements to Enable Collaborative Drug Therapy Management

Improving Medication Adherence Among Patients with Hypertension

Community Pharmacists and Medication Therapy Management

5. Standardizing and Improving Patient Care

Million Hearts^® Hypertension Control Change Package, Second Edition

Implementing Clinical Decision Support Systems

Team-Based Care: Promoting Team-Based Care to Improve High Blood Pressure Control

6. Identifying Patients with Hypertension

Undiagnosed Hypertensionexternal icon

The Surgeon General’s Call to Action to Control Hypertension focuses on Standardization of patient care, minimization of variation in care delivery, prompt medication initiation for the management of high blood pressure and high cholesterol, standardization of timely patient follow-up, and reinforcement of lifestyle counseling and referrals. All members of the clinical care team are empowered to engage in the management of the patient to ensure a positive outcome

References

Department of Health and Human Services (2022), Heart Disease, Tools and Training. https://www.cdc.gov/heartdisease/tools_training.htm

Department of Health and Human Services (2022), National Center for Chronic Disease Prevention and Health Promotion , Division for Heart Disease and Stroke Prevention

Department of Health and Human Services (2020), The Surgeon General’s Call to Action to Control Hypertension.

https://www.cdc.gov/bloodpressure/docs/Surgeon_General_HTN_Control_Health_Professionals.pdf

In this blog I’ll be reviewing the most common nursing malpractice claims, common causes of nursing litigation, common plaintiff allegations, common defenses for nursing liability claims, and ways to mitigate risk. 

The Role of the Healthcare Consumer: Our society is evolving into savvy healthcare consumers who are increasingly more aware, frequently relying on their electronic devices to capture events, and for some, have adopted the notion that hospitals are “deep pockets” when it comes to litigation. 

Most Common Nursing Malpractice Claims: The Nurses Service Organization (NSO), the largest provider of nurses’ liability insurance in the United States, and CNA, the liability insurance underwriter, published a report of nursing malpractice claims from 2006 to 2010.  While the claim history range is not current, the findings are applicable in regards to what lessons we can learn from the report.  I’ll be comparing some of the findings from the 2011 report to the most current NSO nurses’ claim report. 

The 2011 report reviewed 3,222 closed claims against nurses insured by CNA through NSO. The total payment on behalf of the RNs was approximately $80 million. 

• The average cost of a registered nurses’ malpractice claim (payment per case) was approximately  $170,000.
• Insurers paid approximately $8.6 million in indemnities related to medication administration. 26% of the claims were related to wrong medication dose, 20% to improper technique, 18% to wrong medication, and 13% to failure to properly monitor and maintain the infusion site.

In comparison to the most current nurses’ claim report (5-year study) (NSO, 2021),  

Over $90.3 million was paid for malpractice claims over a 5-year period by CNA. This is 10.3 million dollars more that what was reported in 2011.

• The average cost of a registered nurses’ malpractice claim is $201,916. This is $31,916 more than what was reported in 2011.  
• Death is the most common patient injury that results in a lawsuit.  It accounts for 44.3% of all malpractice claims against nurses.
• Comas resulted in the highest severity among patient injury claims, averaging $620,833.  They were often due to medication errors.  The high cost reflects the need for lifelong medical care. 
• Allegations related to treatment and care continue to represent the highest percentage (45.9%) of all malpractice claims asserted against nurses. 
• Lawsuits against nurses due to medication errors were reduced by nearly half, while the claim cost almost doubled since the last 5-year study. 
• The number of license defense paid claims increased by 15.4% since the last study in 2011.
• Unprofessional conduct resulted in the majority of license complaints (24.2%) made against RNs.  The majority of complaints against LPN/LVNs involved medication errors. 
• Experience as a nurse does not equate to less risk of malpractice claims.  The majority of nurses (85%) who experienced a malpractice claim had been in practice at least 16 years. 

Common Causes of Litigation:

• Professional malpractice
• Unprofessional conduct
• Professional negligence
• Involuntary manslaughter

Common Plaintiff Allegations:

• Failure to assess and monitor the patient
• Failure to administer a medication
• Failure to provide treatment and care
• Failure to maintain patient advocacy
• Failure to respond to a change in condition
• Patient abuse or neglect

Common Defenses for Nursing Liability Cases:

• Physician was informed
• Care was provided consistent with the standards of care
• Care was provided within the scope of nursing practice
• Death was related to the patients pre-existing condition and co-morbidities

Ways to Reduce Nursing Liability Risk:

• Practice within the regulations of your State Nurse Practice Act, remain in compliance with your professional organizations and facilities policies and procedures, practice within national standards of care
• Maintain clinical competencies
• Clarify your direct care assignments and responsibilities
• Document in real time to the best of your ability, objectively, accurately, completely, and legibly.  Document all patient assessments, re-assessments, observations, communications, and actions.  Comply with your employer’s documentation standards.
• Do not alter the medical record for any reason after the fact, unless necessary for patient care.  If you must add to the medical record after the fact, be sure to label the entry as a late entry.
• Maintain signed and dated copies of employer contracts
• Maintain effective communication with your work team
• Utilize the chain of command (communication) when necessary to advocate for interventions with significant change in patient status

Having an awareness of common causes of nursing litigation, as well as plaintiff allegations may help reduce risk.  Being armed with knowledge reduces risk of potential litigation, and improves patient outcomes.

P.S. Comment and share your role in mitigating nursing, or APRN (APP) liability risk

References:

CNA Healthpro and Nurses Service Organization. Understanding Nurse Liability, 2006–2010: A Three-Part Approach. http://www.nso.com/nurseclaimreport2011

Nurses Service Organization. 2021. 10 Surprising Facts from the Nurses Claim Report. https://www.nso.com/Learning/Artifacts/Articles/10-most-surprising-things-from-the-nurse-s-claim-report

All adverse outcomes cannot be prevented; however, defensibility is strengthened when care rendered is consistent with standards of care.

In this blog I’ll provide a brief overview of Hypoxic Ischemic Encephalopathy (HIE) neonatal brain injury.  I will review the definition, the incidence (U.S. and worldwide), associated complications, possible causes, and recommended treatment.  I will also share possible defenses to consider when developing a HIE neonatal brain injury case. 

What Is It? HIE neonatal brain injury is injury to the brain as a result of hypoxia.  Hypoxia is a deficiency of well oxygenated tissue.  This can result from a combination of insufficient blood flow and/or decreased oxygen levels. 

How Common Is HIE? HIE is the leading cause of brain injury in the perinatal period.

• Occurs in 1 to 8 of every 1,000 live births in the United States
• HIE causes 30% of cerebral palsy cases in the United States
• HIE causes 23% of neonatal deaths world-wide. The fifth leading cause of deaths worldwide in children under 5 years of age (World Health Organization, 2020).

Complications of HIE (including, but not limited to…): cerebral palsy, epilepsy, mental retardation, visual impairment, hearing impairment, learning disabilities, cardiac arrest, death.

Causes (including, but not limited to…) of HIE neonatal brain Injury: (literature suggests 70-80% of HIE neonatal brain injury cases are not preventable)

1. Antepartum and Intrapartum Events – placental abruption, umbilical cord prolapse, uterine rupture, acute blood loss (maternal hemorrhage), infection
2. Maternal Underlying Risk Factors – hypotension, hypertension, placental vasculopathies, insulin dependent diabetes
3. Neonatal Risk Factors – congenital heart disease, pulmonary disease, severe apnea, patent ductus arteriosus, hypoglycemia, hyperglycemia, meconium aspiration syndrome, infection

Treatment:  Therapeutic hypothermia, or induced cooling, has been shown to reduce death and disability in many HIE cases.  Reduction in the core body temperature reduces the brain temperature resulting in neuroprotection.  Therapeutic hypothermia is the standard of care for infants who are diagnosed with moderate to severe HIE following birth (no later than 6 hours of life) and who meet specific criteria per standard of care adopted by organizational policy, procedure, and order set. 

*Sarnat Staging System is the standard of care to grade severity of HIE

Cooling can be done on the whole body, or through a cooling cap placed on the head.  The infant may need other medical interventions to support their organs or to treat seizures.

Infants who experience HIE may require early intervention therapy services after discharge.  These include services from a neurodevelopmental pediatrician, physical therapist, occupational therapist, speech therapist, feeding and swallowing therapist, and/or a pediatric neurodevelopmental ophthalmologist.

Possible Plaintiff Allegations for HIE Neonatal Brain Injury:

Failure to transfer mother to tertiary care center (higher level of care)

Failure to or delay in transferring infant to Level III NICU for hypothermia therapy

Failure to attend or delay in arrival of a NICU team to a high-risk delivery

Failure of medical staff to recognize and treat neonatal seizures

Failure of Midwife to have appropriate resuscitative equipment and personnel for home delivery

Failure to follow hypothermia treatment protocol

Possible Defenses for HIE Neonatal Brain Injury:

The infant did not meet criteria for hypothermia protocol

The manifestations of the brain injury were metabolic or genetic in nature and not a result of HIE

The infant was not stable for transport to a higher level of care

The mother was non-compliant with regimen for high-risk pregnancy conditions

The mother had no prenatal care

Synthesis of Data and Case Development:  Knowing which relevant maternal and infant medical records to request and what questions to ask are essential.  Having an awareness of standard physician orders, and standing nursing orders will support the development of a case.  A strong understanding of the electronic medical record and documentation requirements, as well as standard laboratory and diagnostics ordered will support case development. 

Below are some clinical areas of focus for case development:

• pathophysiology of fetal monitoring and fetal strip interpretation: identification of fetal hypoxia
• acid-base balance: identification of fetal and/or neonatal metabolic acidosis
• newborn Apgar scoring: identification of the presence of birth asphyxia
• gestational age assessment: evaluation of the appropriateness of implementing hypothermia treatment
• staging and classification criteria for HIE: identification of the level of neurological compromise, identification of eligibility criteria of newborn for hypothermia treatment
• hypothermia treatment: identification of treatment as the standard of care, criteria for treatment, treatment modalities, procedure, staff competencies and continuing education

Perinatal Safety and Professional Liability: All adverse outcomes cannot be prevented; however, defensibility is strengthened when care is consistent with relevant, current evidence-based practice recommendations and standards of care. 

P.S. Comment and Share: What were your successes and challenges working through a HIE birth injury case?

References:

Douglas-Escobar & Weiss. (2015). Hypoxic-Ischemic Encephalopathy: A review for the clinician. JAMA pediatrics. 169(4):397–403. doi:10.1001/jamapediatrics.2014.3269 

Simpson K.R., & Creehan P.A. (2020). AWHONN’s Perinatal Nursing. 5^th edition. Lippincott Williams & Wilkins

World Health Organization. (2020). Newborns: improving survival and wellbeing. https://www.who.int/news-room/fact-sheets/detail/newborns-reducing-mortality

World Health Organization. (2022). The top 10 causes of death. https://www.who.int/news-room/fact-sheets/detail/the-top-10-causes-of-death

(Share the American College of Obstetricians and Gynecologists patient FAQs)

In this blog I’ll be addressing cervical cancer incidence and mortality, risk factors, the role that the Human Papilloma Virus (HPV) plays in the development of cervical cancer, as well as screening recommendations. 

Incidence and Mortality:

It is estimated that in the U.S., in 2021, there were 14,480 new cervical cancer diagnoses, and 4,290 cervical cancer deaths (American Cancer Society, 2021). 

Approximately 1,250,000 women are diagnosed with precancers annually by cytology using the Papanicolaou (Pap) smear. Lesions can regress, persist, or progress to malignancy (American Cancer Society, 2021).  

Who’s At Risk / The Role of HPV:

Carcinogenic types of HPV are the primary agents that cause virtually all cases of cervical cancer (U.S. Department of Health and Human Services).  Once HPV infection occurs, additional risk factors are associated with a higher risk of the development of cervical cancer.  For example: high parity (5 or more pregnancies with gestational ages greater than or equal to 20 weeks), long-term use of oral contraceptives, as well as active and passive cigarette smoking. Diethylstilbestrol (DES) exposure in utero is also associated with an increased risk of developing cervical dysplasia.

HPV vaccination:

• Based on reliable evidence, vaccination against HPV types 16 and 18 is effective in preventing HPV infection in HPV negative individuals and is associated with a reduced incidence of cervical intraepithelial neoplasia 2 and 3. By extrapolation, these vaccines should also be associated with a reduced incidence of cervical cancer.
• Magnitude of Effect: Vaccination against HPV types 16 and 18 reduces incident and persistent infections with efficacy of 91.6% (95% confidence interval [CI], 64.5%–98.0%) and 100% (95% CI, 45%–100%), respectively (U.S. Department of Health and Human Services).
• All forms of the HPV vaccine are currently recommended by the Centers for Disease Control and Prevention (CDC) in the United States as a two-dose schedule at least 6 months apart for adolescents younger than 15 years. The current CDC recommendation for older individuals is to receive the original three-dose series.

Cervical Cancer Screening:

Screening With the Papanicolaou (Pap) Test:

• Based on reliable evidence, regular screening with the Pap test in an appropriate population of women reduces mortality from cervical cancer. The benefits of screening women younger than 21 years are small because of the low prevalence of lesions that will progress to invasive cancer. Screening is not beneficial in women older than 65 years if they have had a recent history of negative test results.
• Magnitude of Effect: Regular Pap screening decreases cervix cancer incidence and mortality by at least 80%.

Screening With the Human Papillomavirus (HPV) DNA Test:

• Based on reliable evidence, screening with an HPV DNA or HPV RNA test detects high-grade cervical dysplasia, a precursor lesion for cervical cancer. Additional studies show that HPV DNA testing is superior to other cervical cancer screening strategies.
• Magnitude of Effect: In one prospective, clustered, randomized trial, HPV DNA testing was superior to other strategies for preventing cervical cancer mortality

Screening With the Pap Test and the HPV DNA Test (Co-testing):

• Based on reliable evidence, screening every 5 years with the Pap test and the HPV DNA test (co-testing) in women aged 30 years and older is more sensitive in detecting cervical abnormalities, compared with the Pap test alone. Screening with the Pap test and HPV DNA test reduces the incidence of cervical cancer.
• Magnitude of Effect: HPV based co-testing provides 60% to 70% greater protection against invasive cervical carcinoma, compared with cytology (pap smear) alone

Screening Women Without a Cervix

• Based on reliable evidence, screening is not helpful in women who do not have a cervix as a result of a hysterectomy for a benign condition.
• Magnitude of Effect: Among women without cervices, fewer than 1 per 1,000 had abnormal Pap test results.

 

U.S. Preventive Services Task Force (USPSTF) cervical cancer screening recommendations adopted by the American College of Obstetricians and Gynecologists (ACOG):

Barriers: In 2020, the American Cancer Society (ACS) updated its cervical cancer screening guidelines to recommend primary hrHPV testing (High Risk HPV DNA testing) as the preferred screening method for average-risk women aged 25–65 years.  Despite the efficacy and efficiency of primary hrHPV testing, adoption of this screening method has been slow secondary to the limited availability of FDA-approved tests and the laboratory infrastructure changes required to switch to this screening platform (The American College of Obstetricians and Gynecologists, 2021).

Future Implications:

• The ACS strongly advocates phasing out cytology-based screening options (pap smears) in the near future
• Although HPV self-sampling has the potential to improve access to cervical cancer screening, and has been identified as effective, it is still investigational in the United States
• The Journal of the American Medical Association (JAMA) published a study demonstrating that self-collected menstrual blood capture and testing for hrHPV is a
  feasible and accurate approach for cervical cancer screening. This study found that this
  method is associated with superior performance in identification of HPV genotypes and true-negative events compared with cervical HPV testing (Zhang, 2021).

Risk Mitigation:

As a means to reduce the risk of delayed or missed cervical cancer diagnosis, and to ensure cervical cancer treatment is rendered in accordance to current standards of care, it is essential to be aware of cervical cancer signs and symptoms, risk factors, screening guidelines, as well as treatment recommendations.

P.S. Comment and share if you have learned of other alternatives to self-collected hrHPV DNA testing options that are currently being studied.

References:

American Cancer Society: Cancer Facts and Figures 2021. American Cancer Society, 2021. Available onlineExit Disclaimer. Last accessed October 8, 2021.

Moyer VA; U.S. Preventive Services Task Force: Screening for cervical cancer: U.S. Preventive Services Task Force recommendation statement. Ann Intern Med 156 (12): 880-91, W312, 2012. [PUBMED Abstract]

The American College of Obstetricians and Gynecologists. (2021). Practice advisory, Updated cervical cancer screening guidelines.

U.S. Department of Health and Human Services, National Cancer Institute https://www.cancer.gov/search/results?swKeyword=cervical

Zhang J, Tian X, Chen Y, et al. (2021). Feasibility and accuracy of menstrual blood testing for high-risk human papillomavirus detection with capture sequencing. JAMA. https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2787432?resultClick=3

 

Facts found within the electronic medical record (EMR) and electronic health record (EHR), or missing from either source, can strengthen or weaken a medicolegal case.  Having an understanding of the EMR and EHR is crucial to the discovery process.   In this blog, I’ll be addressing the differences between the EMR and EHR.  I will also share EMR and EHR elements to consider for discovery. 

Differences Between the EMR and EHR: The EMR is an electronic record of health-related information on an individual that can be gathered, stored, managed, and consulted by authorized clinicians and staff within one healthcare organization.  The EHR is also an electronic record of health-related information on an individual, however, it must conform to nationally recognized interoperability standards.  The EHR can be created, managed, and consulted by authorized clinicians and staff across more than one healthcare organization (McBride et al., 2019).

Discovery: Discovery involves procedures for obtaining information (admissible to trial) from other parties, and witnesses prior to trial. 

Objective: The purpose of discovery is to get the facts, narrow down the issues of the case, identify the strengths and weaknesses of the case, plan a trial strategy, or negotiate a settlement. 

Having someone knowledgeable about the EMR and EHR systems on the legal team proves to be a valuable approach to success.  The reason for this is that there are many elements of the EMR and EHR to consider in the process of discovery. McBride et al., (2019) references that there are unintended consequences of missing the patients story secondary to “data noise.” These unintended consequences include patient morbidity, poor outcomes, and even death.  The problem is that there is so much EMR/EHR data.  Professionals need to know where to find the needed (or missing) information in the EMR and EHR, both within clinical and legal practice.    

Elements of the EMR and EHR to Consider for Discovery (including, but not limited to:)

• Name of EMR/EHR, EMR/EHR version, vendor representative contact, technician support service member contact
• Each component part, section, sub-section of the systems
• When the EMR/EHR system was originally implemented and when any upgrades were installed
• The programs capabilities and limitations, how and where entries are made, who can make entries, how dates and times are entered, who has access to the EMR/EHR
• Does the EMR have pre-set standard responses (E.g., automatic times for medication administration), are templates used for the pre-set standard responses, number of templates created or used to create the EMR
• Are electronic signatures (e-signatures) used,  if so which health care providers (HCPs) are assigned and use e-signatures, do medical and nursing staff share signature blocks, does the facility and/or provider have a policy specific to the use of signature blocks and passwords
• Is there a requirement to verify entries of unlicensed staff, if so, which entries must be verified
• Is there a policy specific to making corrections to the EMR/EHR
• Is the EMR, or section of the EMR printed, is so when (E.g., daily, or at the end of admission)
• How is the EMR/EHR secured, who is responsible for security
• Downtime policies (precautions to secure the EMR/EHR, as well as policies specific to documentation)

P.S. Comment and share how the presence, or absence of specific documentation either bolstered or weakened a recent case.

P.P.S. Comment and share if strong knowledge of the EMR/EHR system was able to better support your case.

Reference:

McBride S., & Tietze M. (2019). Nursing informatics for the advanced practice nurse. Patient safety, quality, outcomes, and interprofessionalism. (2^nd ed.) Springer Publishing Company.

In 2000, the Institute of Medicine (IOM) published a book titled, To Err Is Human: Building a Safer Health System.  Alarming statistics were revealed within this text, referencing that an estimated 98,000 people die annually in the U.S. from medical errors occurring in hospitals.  Medical errors were referenced as the third leading cause of death in the U.S.  Within the text, the IOM outlined a national agenda for reducing medical errors and improving patient safety through the design of a safer health system.  The IOM made broad range recommendations for improving patient safety, in the areas of leadership, improved data collection and analysis, and the development of effective systems at the level of direct patient care. The text reinforced that the problem is not bad people in health care, rather good people working in bad systems that need to be made safer.

In 2016, Johns Hopkins patient safety experts calculated that more than 250,000 deaths annually were due to medical error in the U.S.

The U.S. DOH and Human Services, along with the Agency for Health Care Research and Quality (AHRQ) published a November, 2021 U.S. DOH report referencing strategies to reduce medical errors.

In response to the increase in medical errors, the U.S. DOH and Human Services, along with AHRQ, have proposed the following defense strategies:

• Monitor risk by using analytical approaches to patient safety research, measurement, and practice improvement.
• Monitor patient safety problems by increasing the use of research methodologies
• Implement evidence-based practice in real-world settings supported by useful tools and infrastructure.
• Utilization of patient safety strategies outlined in the National Action Plan by the National Steering Committee for Patient Safety.

Key Highlights:

• The report referenced the importance of developing learning health systems as such healthcare systems are better able to support the integration of the most current evidence to improve care.
• The report referenced the importance of analyzing healthcare data, specific to procedures and patient outcomes to evaluate safe practices and opportunities for improvement.
• The development of a learning healthcare system requires a culture of safety and a shared mental model to drive improvement in clinical practice that is outcomes based. 

To view full report, see the AHRQ.gov link below:

AHRQ.gov: https://psnet.ahrq.gov/issue/strategies-improve-patient-safety-final-report-congress-required-patient-safety-and-quality

HealthcareITnews.com: https://www.healthcareitnews.com/news/feds-point-learning-health-system-key-patient-safety

Institute of Medicine. 2000. To Err Is Human: Building a Safer Health System. Washington, DC: The National Academies Press.https://doi.org/10.17226/9728.

John Hopkins Medicine: https://www.hopkinsmedicine.org/news/media/releases/study_suggests_medical_errors_now_third_leading_cause_of_death_in_the_us

In this blog, I’ll be identifying case types Barber Medical Legal Nurse Consulting, LLC can review where health, injury, or illness is an issue.

Examples of these case types include:

• Family law (custody battles)
• Probate (when competency is an issue)
• School health (sexual assault by a teacher)
• Americans with Disabilities Act (ADA)
• Employer-employee relationships (wrongful dismissal from employment)
• Sexual harassment
• Right to die
• Social security benefit issues
• Medicare benefit issues
• Physician facility relationship (physician was dropped from an HMO)
• Insurance Issues (reasonableness of a medical bill, relationship of the medical bill to alleged injuries or damages)
• Family Medical Leave Act (FMLA), Paid Family Leave (PFL)
• Healthcare professional board disciplinary actions

Barber Medical Legal Nurse Consulting, LLC screens the medical related issues of the above cases, and identifies if the cases are meritorious.

In this blog, I’ll be sharing another case type Barber Medical Legal Nurse Consulting, LLC has the expertise to review.  Workers’ compensation cases involve job related injuries that arise out of, or in the course of employment.  In workers’ compensation cases, compensation can be obtained secondary to the damages and hardship acquired. 

The claimant (employee) must be able to show that he, or she suffered impairment or incapacity resulting in an inability to earn wages he or she was being paid when the injury was sustained in the same or other employment.

Examples of workers’ compensation cases include: auto accidents, back injuries, injuries involving objects striking workers, cumulative trauma disorders, as well as equipment and machinery related injuries.

In these types of cases, Barber Medical Legal Nurse Consulting, LLC assesses the alleged damages or injuries.  The extent of injuries, damages, and hardship is assessed, as well as the presence of underlying medical conditions that could influence causation.  Factors that caused or contributed to the alleged damages or injuries are identified. 

The 21 years of experience specific to medical record review, allows Barber Medical Legal Nurse Consulting, LLC to efficiently, and thoroughly organize, tab, and paginate medical records.  We identify and review relevant medical records.  Following an objective review of the medical records, Barber Medical Legal Nurse Consulting, LLC summarizes, translates and interprets the medical records.   Strategic literature searches are performed and the literature is integrated into the case analysis.  Upon client request, Barber Medical Legal Nurse Consulting, LLC can be involved in interviewing claimants, consulting with healthcare providers, as well as coordinating and attending independent medical examinations (IME’s).

P.S. Comment and share what has been the most challenging aspect of representing worker’s compensation cases, medically, and/or legally.