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LNCtips.com: The Trials of Trial Preparation

The problem with trial preparation? It's usually not done until the case is set for trial.  Almost all medical malpractice cases in the Unites States settle before that point. For that reason, it's common for legal nurse consultants in law firms to forego trial preparation until the case is actually on the trial docket. After all, if the LNCs wait long enough, the case will go away. That makes sense, right?

But here's what happens when trial preparation doesn't occur until the trial date is set. Law firm LNCs spend weeks or months prior to trial scrambling to create reports and gather information. As they review medical records for the case, they may find names of more providers whose records should be obtained. They may find that there are missing records from providers they already have. Maybe the LNCs will be able to get the missing records; maybe they won't. 

There are lots of tasks and reports that suddenly need to be done at the last minute. And because trial prep is done so infrequently, it's a strain to remember exactly what type of tasks should be done.  Because the LNCs devote all their time to the case(s) going to trial, their other cases are neglected. After awhile, it becomes the norm to work on cases only when they too are scheduled for trial.

How can an LNC break out of this routine? I found myself in this situation at a law firm when I inherited 40 medical malpractice cases of which 13 were scheduled for trial in the upcoming 11 months. To make matters worse, there were tens of thousands of pages of medical records in those 40 cases that had not been reviewed.

I changed the way cases were worked up by changing my thinking. Instead of thinking that each case would probably settle, I approached each case as if it would go to trial. The day I was assigned a case was the day I started trial preparation. I found that the more time I spent on the front end of a case (when the case was new), the less time I needed to spend on the back end of the case (when it was set for trial). And it's far more satisfying to be involved and knowledgeable about the case right from the start. Here are the things I do on the front end to prepare for trial.

Review medical records as they arrive.

As I review the records, I identify additional treaters and providers and, if the attorney agrees, get their records. This eliminates the last minute rush to obtain records.

I develop a treater list as I review the records. The treater list can serve as a template for a fact witness list as the case nears trial.

I also tag important pages in the medical records and make copies of them. This way, I have identified at least some of the exhibits the attorney will need at trial

While I'm reviewing the medical records, I create a medical chronology and/or medical summary. Both of these documents will be used immediately and throughout the life of the case to help the attorney with the medical aspects of the case. As the case nears trial, the chronology and/or summary will be used to refresh the attorney's memory or help other trial team members gain an understanding of the medical issues.

Hire experts for the case. 

After I review the medical records, I send them to experts. This eliminates the avalanche of records that experts can receive just before trial.

I follow up with a telephone conference about the experts' review opinions. This leaves plenty of time for the attorney to strategize, or in the case of a negative review, get a new expert.

I create a  report about the experts' opinions. These reports will be used by the attorney and trial team to fine-tune their trial strategy.

I create pertinent indexes. Creating them at the start of the case and updating them as needed eliminates this task as trial approaches.

I research the pertinent medical conditions and create a Medical research index

I identify if radiographs are important to the case. If they are, I obtain pertinent radiographs and create an index of radiographs. I also make sure that I send radiographs to appropriate experts.

I identify if pathology slides are important to the case. If they are, I obtain pertinent pathology slides and create a pathology index. I also make sure that I send the slides to appropriate experts.

As the case progresses, I review additional medical records and repeat the process. Some of the other things that I do as the case progresses include: 

Update the medical chronology/medical summary, treater list and indexes.

Compare my treater list with the subpoena/medical authorization log to determine if the firm has records, radiographs, and pathology slides from all treaters.

Prepare for depositions. I tag documentation of treaters who are scheduled for deposition and I may write questions for fact and expert witnesses.

For living plaintiffs, I obtain update records from primary care and other providers.

Create other reports, such as timelines, graphs, touch charts and calendars, to clarify certain aspects of the case. These reports are often used as the basis for demonstrative evidence.

Continue to interact with experts. I send them depositions and additional medical records and periodically hold telephone conferences with them.

By the time each case is set for trial, there's not much else to do. I compile a trial notebook of the reports I've created and other information I've gathered thus far. I may create a PowerPoint presentation. By starting my trial preparation the day I get the case, trial preparation is no longer a trial.

Want to learn more about LNC skills for legal nurse consultants?  Check out the Archives.

...Katy Jones