Legal Nurse Consultant


Legal Nurse Consultant

Is this career path right for you? Read one nurse's personal story.

By Diane Barnet, RN
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It sounded so easy. On the strength of an opinion piece about the nursing shortage I wrote for the Dallas Morning News, an attorney contacted me in the spring of 2002.
“I’d like to send you a case,” he offered.
“But I don’t have any legal background,” I protested.
“That doesn’t matter,” he replied, “you can write.”

And so began my career as a legal nurse consultant. The attorney represented the family of a patient who had died after routine surgery. They were suing the hospital, two physicians, and three nurses. My task was to read all the medical records, look at the standards of care outlined in the Texas Nursing Practice Act, and write a report giving an opinion on whether the nurses had met those standards. I had to prove that the nurses had a duty to provide care to the patient, had not fulfilled that duty, causing harm to the patient as a direct result, and had failed to provide care that any reasonably prudent nurse would deliver. As a nurse, I was not qualified to comment on the physicians’ performance. Other experts would analyze their roles in the patient’s death.

Because the lawyer was in Dallas and I was in Austin, we were in contact by email and telephone. I worked all summer on the case and, in addition, read the records in another case he was considering, to assess whether it had litigation merit. At the end of the summer I sent him my report on the first case.

“It’s a pleasure to read good writing,” was his reaction.

Just after Labor Day he informed me that he wanted to depose me as an expert witness. He represented the plaintiffs,
but the defense would also want to question me. He arranged for the deposition to take place in Austin and said he wanted to see me the evening before to prepare. We met in a quiet café. I expected a “suit with a briefcase” and was surprised to see a short, bearded man wearing a polo shirt and cowboy boots. His attitude toward his profession was irreverent and dismissive. He referred to attorneys as, “those saintly people that we all know and love.” As he flipped through the mass of scribbled notes that were the basis of my neatly typed 12-page report, he tossed them aside.

“We don’t need this,” he commented casually. “We can scratch that; throw those out. Just answer directly, but don’t volunteer any information,” he advised. “I’ll be there if you have any questions.”

Sweaty-palmed, heart pounding, I entered a conference room the next morning to find eight people seated around a table, including a videographer. The attorney for the defense firm was young and brash and grilled me unmercifully for three hours while the camera rolled. I learned later that firms usually send their most junior lawyers to take depositions.

A month later I received a call from the attorney’s office. The portion of the case I had worked on had been settled out of court and he wanted to thank me. The check was in the mail.

On the strength of this victory–few cases actually make it to trial–I decided this would be my new profession. Although I continued my part-time job on a medical unit, working for attorneys paid quadruple per hour what I earned as a nurse.

To become an expert in my new field I considered spending several thousand dollars on legal nurse seminars and videotapes, but decided the price was too steep. I settled for a couple of textbooks from the American Association of Legal Nurse Consultants (AALNC) for a fraction of the price, as well as a book on marketing oneself as a consultant. I eagerly devoured them all.

I needed references and called the attorney I had worked for, only to find he had given up his practice. His receptionist, the soul of discretion, would not divulge any other information. Had he relocated to a cabin in Montana? Been disbarred? Entered rehab? I would never know, but his partner agreed to provide references if needed.

Marketing Myself

To market myself, I spent hours reading the respected Martindale-Hubbell law directory online, an invaluable resource that lists attorneys nationally by location as well as by specialty. I cobbled together a list of 400 lawyers who accepted medical malpractice cases in major cities in Texas. I designed a letter, brochure, and business cards. The cost of postage alone ran into the hundreds, but I hoped my big mailout in late fall 2002 would pay off. The toughest part was making follow-up calls. Getting past dragon-like gatekeeper receptionists, trained to deflect callers, proved daunting. I did speak to a few attorneys; most said they would keep me in mind. So I waited . . .and waited. Finally, in February 2003 a local lawyer contacted me with a case. By this time I had typed up a retainer agreement form and a fee schedule. I had an “Aha!” moment when she handed me a $500 check up front.

I worked on the case all summer and was deposed as an expert witness in September 2003. I showed up, but the defense did not. I later learned that the State Supreme Court had put a stay on the proceedings. The attorney was happy with my work, but the case was on hold indefinitely.

That autumn I did another mass mailout that netted an appointment with a local lawyer, but no work. A third mailout in the spring of 2004 brought me three hours of research for an attorney in Houston and a case that I screened for merit for yet another lawyer in San Antonio.
My first contact with him was when FedEx handed me an eight-inch stack of records with a simple note: “Read this and call me.”

I told his paralegal that the lawyer needed to sign my retainer agreement before I could start, and she fired back a signed copy without, however, the $500 check requested in the second paragraph. It took three calls before I finally received the check and began reviewing the case, which I found to be without merit, initiated by an upset family.

The billable hours I spent working on the case totaled $78 more than the $500 I had been paid, and I asked him for it, never expecting to see it. To my surprise, another check arrived without further phone calls. I prided myself on sticking to my professional guns and refusing to work until I had received a retainer fee. This was a paradigm shift from the accommodating “nice nurse” image so many of us embody.

Almost immediately I got another case from a Houston lawyer involving a patient death. Although we never met, he was young, keen, and easy to talk to during our several phone conversations. My report on the nursing care ran to a dozen pages and I made a few thousand dollars over the months I worked on it. When the case settled out of court I was gratified to have played a part but disappointed that my contact with the firm was over—for the moment, anyway.

I joined the local chapter of the AALNC and paid for a listing on its website. I also attended the association’s annual convention and bought advertising in Martindale-Hubbell’s electronic media. This included listings on a website, a CD-ROM, and in Lexis-Nexis. In late spring 2004, a local attorney contacted me with a small case as a result of my first mailout almost two years earlier, which was gratifying. Constantly refining my database—law firms take on and lose partners and regroup under new names with alarming frequency—I had not contacted him since.

A Mysterious Case

One day, I got a call from a young woman with a girlish voice called Cindy. She wanted me to assess a plaintiff case for merit. When we discussed payment, she balked at my $500 retainer fee and said she would have to run it past “Mr. Hinojosa,” the senior lawyer in the firm.
A few days later she called back to offer me $350 instead. Since my fee was standard and reasonable, I stood my ground and privately felt that this attempted counter-offer was cheap and tacky. Again, she said she would have to consult “Mr. Hinojosa.” We finally compromised on their paying me $500, with an agreement that I would not bill beyond that. They would at least get several hours’ work from me and, although this compromise was against my better judgment, I needed the work.

I looked up this law firm on the Internet and learned that Cindy was an attorney. She had never identified herself as such, in itself a breach of professionalism, and I had assumed she was a legal assistant. My opinion was that the case had merit, but when I heard nothing further for several months I thought my involvement was over.

Not so. I suddenly got a call from another attorney with the firm who identified herself as Nancy Wu. She was taking over the case from Cindy and they were going ahead with it. We discussed my fee schedule and she stated she would first have to have “Mr. Hinojosa” approve it. Here we go again! I thought. Why are these people quibbling over a perfectly reasonable fee?

Ms. Wu said she would call back early the following week. When I didn’t hear from her, I left two voice mail messages. Midway into the next week we still had not spoken. I left a message that if I were to continue on the case I needed to hear from Ms.Wu. She called back, breathless and annoyed, with a tale of double-booked appointments the previous week and preparation for a trial next week. Those weren’t my concerns. She still hadn’t discussed my fee with Mr. Hinojosa. On top of that, her name sounded familiar, and I realized she was the ex-girlfriend of a friend’s son. For reasons of confidentiality, I could not mention this to either her or my friend while I worked on the case.

But I was annoyed at being stuck on a back burner, unable even to start reading the medical records until I received a retainer. I debated whether I should stay with the case. Dealing with this firm just seemed too difficult. I called the receptionist and got the firm’s FedEx account number. Wrapping up the file, I shipped it back to “Mr. Hinojosa,” stating in a note that because of communication problems and delays I had decided not to take it on.

If there was tremendous variability in the way lawyers handled cases, there was also great variety in the length of time cases took to wend their way through the system. One case for which I was retained took three years to reach the point of my being deposed for the plaintiffs. During the deposition the defense attorney, a curt macho type, tried to bluff me.

“You state that the patient was transferred from the recovery room to the floor at 3:00 pm,” he bellowed at one point.
I knew this was incorrect, a deliberate attempt to trip me up.
“Where in my report do you find that?” I asked sweetly.
The deposition wound down within two hours and I asked the attorney for whom I was working to rate me candidly on a scale of one to ten. Her answer was eight-and-a-half.

During the past five years I have worked on a dozen cases. Some legal nurse consultants work full time in law offices. I continue working from home because I enjoy flexibility and independence, though most independents also hold other nursing jobs. Some consultants specialize in plaintiff or defense cases and, while I lean towards the former, I have taken on both.

In some states, recent tort reform legislation capping monetary awards means that attorneys are accepting fewer malpractice cases. They are simply not cost-effective. Most lawyers work on a contingency basis, cover all expenses, and are reimbursed a fee of forty per cent if their client wins. After attorneys’ fees and expenses, a client awarded $250,000 might ultimately get only $75,000. Plaintiffs are responsible for court costs and attorneys’ fees if they turn down reasonable settlements offered by insurance companies and lose in court later.

I am about to embark on another mailout in hopes of netting new cases. My work comes mainly from diversified medium-sized firms that lack in-house consultants and outsource medically-related cases to people like me. Cases can be varied and challenging—who knows what may turn up next week? If you decide to try this field, be prepared for anything, and don’t give up your day job!

Diane Barnet is an RN and a legal nurse consultant. She has written for the Los Angeles Times, Backpacker, American Careers. Her book, What You Need to Know About Hospitals was published by Crossing Press, Santa Cruz, in 1998.

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