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Parks medical legal presents-the role of the lnc in civil cases and trial Presentation Transcript

  • 1. Parks Medical-Legal Presents:
    The important role played by legal nurse consultants in all phases of civil cases, with a Case Example
    By Paul Parks RN-Legal Nurse Consultant
    © PMLC 2010
  • 2. A Civil Case From Start to Finish
    In this presentation I will give an example of a civil case from start to finish.
    important steps that all civil cases follow and define important legal terminology
    And finally, important role played by legal nurse consultants in all phases of civil cases
  • 3. Case Example: Charles and Julia Doe
    Charles Doe and his wife Julia had just finished a day of shopping and were driving home. Both in their late 60s and retired, they enjoyed spending time together. In order to get to their house, they had to turn off the main highway and drive down a side street. There is only one intersection on the street, where a railroad track crosses the road. They had crossed this track hundreds of times before. Charles had noticed, in recent months, that it was growing increasingly difficult to look for trains on the track because of the thick trees that had grown up at the intersection. In order to see an oncoming train, a motorist would have to slow down, edging out onto the track and craning his head to see in both directions.
  • 4. Case Example
    On August 20 of last year, Charles and Julia crossed this track for the last time. There is no dispute about the fact that the train, owned and operated by XX Railroad Company, struck the Doe's car on the passenger side. The train was going 25 mph, and Julia was killed instantly. The car was impaled on the locomotive and pushed 200 feet down the track before it fell off to the side. Fortunately for Charles, there was a fire station less than a quarter of a mile away, and the emergency response team got to the scene in less than five minutes. They weren't able to do anything for Julia, but they used their equipment to pry Charles out of the car and then airlifted him to a nearby hospital.
  • 5. Your Time to Opine
    Charles was severely injured. He had blunt trauma to his abdomen, blood-filled lungs, brain damage, and a broken left femur. Charles was not expected to live. In fact, he was in a coma for 63 days before he awoke. Yesterday, Charles met with a local law firm and asked them to take his case. The firm is giving the case some serious consideration, but as the attorneys have done with all of their recent cases, they would like to get your opinion as a legal nurse consultant .
  • 6. Knowing Civil Law is a must
    At this point, what do you need to know about civil lawsuits so that you can give an informed opinion not just about the client's medical injuries but also about how they fit into the overall scheme of a civil case?
    Criminal cases and civil cases operate differently from one another. In order to bring a civil case, the plaintiff must have a cause of action. A cause of action is a legally recognized wrong that gives the injured person the right to receive compensation. On the face of the facts in this case, there doesn't seem to be much question about a cause of action. Charles was severely injured when the train struck his car. He also has a cause of action for the death of his wife.
  • 7. The LNC and Civil Law
    Charles has been injured. Does that mean that the firm will take the case? If they do, what kind of involvement will you—as a legal nurse consultant—have? Yes, they may take the case but are you well versed enough about civil law to hold a conversation? You should because the first order is understanding how law firms evaluate new cases. This is imperative to know or you will flounder, you must learn to speak act and communicate with attorney’s.
  • 8. How Law Firms Evaluate Cases
    Think- Law firms must be choosy about their cases. Why? Because law is a business, and bad cases don't pay the bills. But what makes one case "bad" and another one "good"?
    The first consideration for an attorney who evaluates a new case is the factual basis of the claim. It would be nice to think that attorneys routinely consider justice as their first and foremost priority, but they can't. In the day-to-day world of legal practice, the first point that attorneys use to evaluate a case is facts, not fairness. The question for the attorney is this: Do the facts justify the client's claim? If they don't, the attorney should not take the case. A case where the facts don't support the client's claim is a loser. This is why proper research is so important.
  • 9. Facts That Make Up A “Good" Case
    The first consideration is liability. Was the defendant clearly wrong? Was the defendant negligent or intentionally callous to the plaintiff? If so, the chances of succeeding at trial are very good. On the other hand, if the plaintiff and the defendant are equally at fault, the chances of recovery are slim. In some states, the doctrine of contributory negligence bars the plaintiff from recovering any amount of money if the defense can show that he or she was at fault in any way. Most states do not follow that model, but it is still an important consideration.
  • 10. Just The Facts
    If the plaintiff was wrong, juries probably won't award any money. Some of the other intangibles that go into determining whether or not a case is a "good" case involve the plaintiff's injuries. Does the plaintiff have any permanent disability? Is the plaintiff scarred or disfigured in some way? Juries, like anyone else, are a lot more sympathetic to people who have been disfigured than they are to someone who has a non-obvious injury.
  • 11. Facts and other Considerations
    The second aspect of the analysis is pretty hardheaded (some would even say it's cold-blooded). The second consideration is this: Even if the facts do support the claim, is there any possibility of recovery? Medical professionals and legal professionals use the term recovery in very different ways.
    Attorneys don't use recovery in that context. For them, recovery refers to how much money they can get from the defendant.
  • 12. Choosing the Right Case
    There are plenty of otherwise "good" cases out there that attorneys will not take. If there is no likelihood of recovering any money in a case, most attorneys will turn down the case. Taking on a case for general principles sounds good and is a nice basis for a movie plot, but in reality, an attorney can't afford to do something like that more than once or twice in his or her entire legal career.
  • 13. Filing a Complaint
    After reviewing Mr. Doe's extensive medical records, you—as the legal nurse consultant—recommend that there is plenty of evidence supporting his injuries. He has permanent disabilities, memory loss, and a reduced life expectancy, all of which can be traced directly to the train collision. This is what the law firm was hoping to hear. The firm already knows that XX Railroad Company has a huge insurance policy, so the evaluation has come back as a positive on both counts: There is clear liability on the facts and a strong possible recovery. The firm takes the case. What happens next?
  • 14. Investigating a Claim
    Investigating the claim rule requires that attorney’s investigate any claim brought by a client. The attorneys are not allowed to rely on what the client has told them. They must launch an independent investigation to verify the claim before filing suit. Rule 11 was created in order to prevent people from using law firms as a means of harassing and intimidating others by bringing groundless suits. Part of the firm's investigation involves turning the preliminary medical records over to you, the legal nurse consultant, to confirm the basic medical testimony. The firm will also obtain a copy of the accident report and confirm the basic facts with witnesses. Once they have done those things, they are ready to write up a complaint.
  • 15. The Complaint
    A complaint sets out the details of the plaintiff's cause of action. It's just that simple.
    When the law firm writes up a complaint for its client, it is required to put in the specifics. What are the specifics? Dates, times, people, places, and things. Because it will be served on the defendant, the complaint has to put the defendant on notice of what the plaintiff is complaining about. A complaint is literally a "complaint"; it's a complaint about what someone else did. It's also a request, made to a court, to force the defendant to rectify the situation.
    I've taken the basic facts of the Doe case and created a sample complaint. I've edited out some stuff, just for the sake of space.
  • 16. Case Example Complaint Part 2
    Let's take the numbered paragraphs of this complaint one by one and explain what is going on in each of them. In Paragraphs 1 and 2, the plaintiff is simply setting out the area where accident occurred. The location of the accident is important because it shows that the court has jurisdiction to hear the case. Paragraph 3 shows that the defendant owned the train. Paragraph 4 shows the date, time, and location of the accident. Paragraph 5 explains, in simple words, the event that led to the plaintiff's injuries. Paragraph 6 shows what the plaintiff's injuries are. And Paragraph 7 shows what the defendant did wrong that caused those injuries.
  • 17. The Complaint
    The final part of the complaint—the part that begins, "WHEREFORE"—is the plaintiff's request for compensation. You may wonder why the plaintiff doesn't ask for a specific amount, such as $1.2 million. Instead, the plaintiff simply requests, "a sum in excess of ... $10,000." One reason for this request is simple: In order for this court to hear the case, there must be minimum damages of at least $10,000. Another reason that the plaintiff does not give a specific amount is that the jury might decide to give the plaintiff more, and the plaintiff doesn't want to limit his request. Once the complaint has been drafted, the next step is to serve a copy of it on the defendant. This is called service of process.
  • 18. Service of Process, Defendant's Answer, and Damages
    Once the defendant has been served, the process server files a document with the court stating the date and time that the defendant was served. The defendant has a specific number of days from the service of process to file his or her answer. When we say that a person is served, we mean that the process server physically hands the defendant a copy of the complaint. There is no requirement that the defendant actually read the complaint, as long as the process server can prove that he or she gave it to the defendant.
  • 19. Defendant's Answer
    When the defendant has been served with a complaint, he must respond with a document that is known as an answer. An answer contains the defendant's denials of the factual allegations in the complaint, denial of responsibility for the plaintiff's injuries, and a request that the court not award damages to the plaintiff. If the defendant has any claims against the plaintiff, he will raise them in the answer.
  • 20. What does all this mean?
    In the answer, the defendant has simply gone through the numbered paragraphs of the complaint and is either admitting or denying the allegations contained in them. When a defendant admits to certain facts, there's no longer any need to present proof. The defendant's denial forms the main issues that will be brought out in the trial.
    Know your Lingo: The answer is the defendant's written response to the complaint; usually, the defendant denies any responsibility for the plaintiff's injuries and may actually state a counterclaim against the plaintiff for damages that the defendant says he suffered that are the plaintiff's responsibility.
  • 21. What exactly are damages?
    When a civil case goes to trial, one of the decisions that the jury must make is whether the plaintiff has incurred any damages and, if so, how much of these monetary losses the defendant should be forced to pay. The term damages refers to the specific monetary amount that the jury can award at the end of the trial. This is one of the jury's powers, and whether the jury votes to award $1 or $1 million, its decision will stand, unless someone can show that they acted improperly or ignored the evidence. Damages are monetary payments that a court orders a party to pay that are intended to compensate the plaintiff for a physical or financial injury.
  • 22. Types of Damages
    There are three categories of damages: general, special, and punitive.
    General damages
    General damages are those losses that the plaintiff suffers that are often difficult to quantify. For example, if the plaintiff suffers pain or mental suffering because of the defendant's actions, how much is that worth in dollars? The jury must first decide if the plaintiff should be awarded any general damages, and then it must put a dollar amount on those damages. As you can imagine, such an award is open to interpretation, and two different juries presented with the same case could come up with wildly different general damage amounts.
  • 23. Damages
    Special damages
    Special damages are those plaintiff losses that can be stated with specificity. Such damages include time lost from work, medical bills, and any other bills that could be stated with certainty. These damages are often referred to as out-of-pocket expenses.
    Punitive damages
    The category of punitive damages is reserved for special situations. Punitive damages—as their name suggests—are designed to punish the defendant. By assessing punitive damages, the jury is seeking to punish the defendant by making him pay extra money to the plaintiff that isn't directly tied to general damages or special damages. Punitive damages are not awarded in all cases, but when they are, they can be huge. Some states have enacted new laws that limit the amount of punitive damages that a jury can award.
  • 24. Discovery
    Once the answer has been served on the plaintiff and filed with the court, the lawsuit has officially begun. After this point, the discovery phase begins. Discovery refers to the process of learning information about the other side's contentions in a suit. In civil cases, there are a wide variety of methods by which parties can learn about the other side's contentions. These include depositions, interrogatories, and requests for production of documents. Discovery is the exchange of information between the sides involved in a suit.
  • 25. Depositions
    A deposition is a face-to-face session between the attorneys in the case and a witness. The witness is sworn in and then asked general questions about the case. The questions and answers are taken down by a court reporter and later printed off in a transcript. If the witness becomes unavailable to testify during the trial, the transcript of the deposition can be read instead. Although depositions are common in civil cases, they are rarely used in criminal cases. In criminal cases, the defendant has the right to face his accusers, and therefore depositions are of little use. In a civil deposition, attorneys for both sides can ask broad-ranging questions, not only about the accident itself but also about any potential bias on the part of the witness or any other matter related to the case. Depositions are oral questions of a witness, taken under oath, by an attorney and later preserved in a transcript.
  • 26. Interrogatories
    Interrogatories are written questions sent to the parties in the case. The party must respond in writing and thoroughly answer the questions. Although depositions can be used on parties and witnesses, interrogatories are reserved for parties only. Interrogatories are written questions posed by one side of a civil action to the other side. Another discovery method is to serve a request for production of documents on the opposing side. This is a request that asks for copies of all relevant documents, including photographs, videotapes, and any other evidence, in the case. When this request has been filed, the other party must produce the evidence or risk sanctions by the court.
  • 27. Requests for production of documents
    They simply are requests for copies of all documents relevant to a case. Through discovery, both sides of a civil case can learn essentially everything about the case before going to trial. That is actually the purpose of civil discovery rules. For attorneys in civil cases, there are few, if any, surprises during a civil case. There are no surprise witnesses, no undisclosed evidence, and no dramatic events, such as someone standing up in the courtroom and saying, "You're right! I did it!"
  • 28. Request for Production
    The discovery rules were drafted in such a way that they encourage the parties to know as much as possible about the case prior to trial. The reason for this is commonsense: The courts reasoned that if both parties know everything about the case prior to trial, they might be less inclined to bring questionable cases to a jury. Whether or not that has actually happened is still an open question.
  • 29. The Legal Nurse Consultant's Role in the Discovery Process
    Legal nurse consultants play a critical role during the discovery phase. They can guide attorneys in the questions that the attorneys should ask in depositions of medical personnel, help draft questions and answers for interrogatories, and point out specific items of physical evidence that should be requested prior to trial. Legal nurse consultants really shine when it comes to preparing for trial. Here is where all of our medical background, training, education, and experience can be brought to bear to assist the attorney in anticipating issues that will be brought out by the opposing side
  • 30. Trial Facts for LNC’s
    Legal nurse consultants work on both sides of cases. In fact, you may personally know the legal nurse consultant who works for the opposition. Obviously, one legal nurse consultant cannot work both sides of the same case, and most legal nurse consultants do develop a preference for either plaintiff cases or defense cases. But there's no prohibition against a legal nurse consultant working for the plaintiff in one case and the defendant in another.
  • 31. The Trial Process
    At the trial, the plaintiff presents his or her case to the jury first. The plaintiff goes first because the plaintiff is the person who raised the accusations and must therefore prove them. The plaintiff presents witnesses and evidence to prove the allegations made in the complaint. When the plaintiff has finished, the defendant has the right to present his or her case. Although most cases do settle out of trial it is important for you to know the whole process, not just screening records. Legal nurse consulting is more than just screening records.
  • 32. Jury Selection
    What really happens in jury selection is that a large pool of citizens are brought in, and the parties remove members until 12 are left. Both the plaintiff and the defendant have a specific number of strikes. A strike is the power of the party to remove a member of the jury panel. A person might be struck for any of a number of reasons, including the fact that they are friends with the parties, relatives of the attorneys, or witnesses in the case. It isn't true that a person must have no knowledge of the case before being selected to sit on a jury.
  • 33. Opening Statements
    An opening statement is a brief, factual statement to the jury. The attorneys are allowed to outline what the case is about, so the jury will have some idea about what is going on and what they will see during the trial. Impassioned speeches are not allowed. Once the plaintiff's attorney has given his or her opening statement, the defense attorney has the chance to give one, too. The defense opening will sound very similar to the plaintiff's opening, except that, at the end of the short speech, the defense attorney will ask the jurors not to award any monetary damages to the plaintiff.
  • 34. Opening Statements
    The presentation of a case consists of witnesses and evidence. The only way for the plaintiff to prove his case against the defendant is to present testimony from witnesses and physical evidence to support the claims made in the complaint. Attorneys are not allowed to give testimony. Only witnesses, who have been sworn in and testify from the witness stand, are allowed to give testimony. This is probably the biggest misconception about trials that there is.
  • 35. Direct Examination
    When the plaintiff's attorney calls a witness to the stand, this is referred to as direct examination. There are strict rules about how direct examination can occur. The attorney who calls the witness must ask general, open-ended questions. Once the attorney has finished questioning the witness on direct examination, the attorney sits down, but the witness remains on the stand. The opposing attorney then has the right to cross-examine the witness. The purpose of cross-examination is to attempt to disprove some of the claims made by the witness or to show that the witness is biased or otherwise misinformed about the case. The rules on cross-examination are much broader: Attorneys may ask leading questions and demand yes-or-no answers to those questions.
  • 36. Evidence
    While witnesses are on the stand, either attorney may seek to introduce evidence. Evidence consists of anything other than verbal testimony offered to prove a fact in the case. There are different types of evidence, from documentary evidence to circumstantial evidence, but the important point about all types of evidence is that evidence must be presented with the idea of proving or disproving a fact in contention.
  • 37. Evidence
    The plaintiff's case proceeds from witness to witness and evidence to evidence until the plaintiff's attorney believes that he or she has presented enough proof to convince the jury to award damages. When the plaintiff finishes his or her case, the plaintiff announces, "Your Honor, the plaintiff rests." This is a signal that the plaintiff will not present any further witnesses or evidence. At that point, the defendant will invariably request a motion for directed verdict. A motion for directed verdict is the defendant's request to the judge to dismiss the case because the plaintiff hasn't proved it.
  • 38. Motion for Directed Verdict
    Defendants almost always bring a motion for directed verdict at the end of the plaintiff's case because they have nothing to lose by doing so. If the judge rules against the defendant, the defendant can still present his or her case. If the judge sides with the defendant, the case will be dismissed and the defendant will win. In most cases, the judge rules against the defendant's motion for directed verdict, and the defendant presents his or her case. The defendant presents his or her case in exactly the same way that the plaintiff did. In this case, the defendant will put up witnesses and introduce evidence that support the defendant's claim that he or she was not negligent and that the defendant owes no compensation to the plaintiff.
  • 39. The LNC and Medical Testimony
    Both the plaintiff and the defense might present medical testimony from legal nurse consultants or other expert witnesses about the nature of the plaintiff's injuries. The plaintiff will undoubtedly present such testimony in order to show the jury just how severely injured the plaintiff was. The defendant, on the other hand, might present evidence from medical experts showing that the defendant's memory loss and age might have affected not only his recollection of the events but also his response time on the day of the accident.
  • 40. The Verdict
    Many jurisdictions have rules that require unanimous verdicts in both criminal cases and civil cases, but some jurisdictions allow a majority rule in civil cases. Because this rule varies so much across the United States, you should review your own state law to determine how jury verdicts are assessed. Jurors in civil cases do not determine guilt or innocence. Instead, the jury determines liability. If the jury determines that the plaintiff should win the case, the jury's verdict is, "We, the jury, find for the plaintiff." If the jury decides that the defendant should win, the jury's verdict is, "We, the jury, find for the defendant." This formally stated sentence is a determination of liability.
  • 41. The Verdict
    If the jury finds for the defendant, the jury has determined that the defendant has no liability and should not be forced to pay compensation to the plaintiff. If, on the other hand, the jury finds for the plaintiff, then the jury has one more duty to perform. Once the jury has determined that the plaintiff should win, the jury must determine a monetary amount. The jury's assessment of damages comes only after the jury has determined that the defendant should lose. When the jury announces its verdict in favor of the plaintiff, it follows this announcement with a second sentence spelling out the final monetary award to the plaintiff.
  • 42. Attorney- Client Privilege
    In conclusion I would like to address the attorney client privilege and the role of the LNC. The Attorney–Client Privilege The attorney–client privilege is important for legal nurse consultants because you can take some actions, even inadvertently, that might waive the privilege. For example, if you reveal confidential information about the client to others, this may waive the privilege, and then the attorney might be compelled to testify about all confidential communications. Because of this, you must have a firm understanding about the law of evidentiary privilege.
  • 43. Evidentiary Privilege
    When a person has a confidential meeting with his attorney, for instance, neither party can be compelled to reveal what was discussed. If the witness is asked about this conversation, he can invoke an evidentiary privilege that prevents any further questions. This privilege against revealing any details of the conversation applies to any communication between an attorney and his client, whether it is a telephone call, a face-to-face meeting, a letter, a fax, or even an e-mail. Privileges were created as a way of protecting such relationships. Early on, legal authorities realized that no one would tell his attorney the truth if he knew that the attorney could later be compelled to testify about it. This same privilege applies to communications between a doctor and a patient for exactly the same reason. The privilege has, over time, been extended to other professional relationships.
  • 44. Evidentiary Privilege and the LNC
    When an attorney advises a client about a legal matter, the substance of that conversation is protected at law by an evidentiary privilege. This privilege protects the client's privacy. An attorney who is called to the stand and asked to testify about a conversation with a client can legally refuse to answer any questions. The attorney cannot be held in contempt or otherwise prosecuted for failure to answer such questions. Are legal nurse consultants protected by a similar privilege? The answer is, No.
  • 45. Evidentiary Privilege
    There are some jurisdictions that have held that the presence of the legal nurse consultant during an attorney–client discussion may actually waive or eliminate the privilege. That being true, you—as the legal nurse consultant—cannot refuse to answer questions about conversations with a client. Since the conversations between the attorney and the client are supposed to be private, you should make sure that they remain so. The best way to do this is not to discuss any client business away from the office. Unless given permission to do so, it is a good idea to refuse to state that a particular person is even represented by the attorney.
  • 46. THE END
    © 2010 PMLC “integrating medicine & law”