For The Defense, July 2010 - DRI Today

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Negligence, from page 38the equivalent duty of protecting the publicfrom the negligent conduct of licensednurses. Investigations from these boardscan lead to punishments that include reprimands,suspension or revocation of license,or probation. Alternatively, the medical ornursing board can also choose to focus itsattention on re- educating and retrainingthe health care provider, a remedy not feasiblewithin the confines of a prison cell. See,Protecting the Public: How State MedicalBoards Regulate and Discipline Physicians,http://www.fsmb.org/smb_protecting_public.html,and National Council of State Boards ofNursing, https://www.ncsbn.org/163.htm.Negligent conduct is not excusable, butthe strenuous working conditions thathealth care professionals must endure eachday has led to a nursing shortage. In 2007,The American Health Care Association(“AHCA”) estimated a need for 109,900health care personnel to “fill vacant nursingpositions at nursing facilities across theUnited States.” 2007 AHCA Survey: NursingStaff Vacancy and Turnover in NursingFacilities, 4 (American Health CareAss’n Dep’t of Research July 21, 2008).These vacancies consisted of positions forregistered nurses (“RNs”), licensed practicalnurses (“LPNs”), and certified nursingassistants (“CNAs”).With fewer nurses to attend to large volumesof patients, mistakes are bound tooccur even when these health care providersperform to the best of their abilities.Bringing criminal charges against awell- intentioned nurse can only discouragethose interested in entering the nursingprofession. Additionally, the possibilityof criminal charges may make it more difficultfor nurses to be frank about these unintentionalerrors they made. An inabilityto examine mistakes or errors places allpatients at risk. See, Criminalization ofNurses for Unintentional Errors, WisconsinNurses Association, available at http://www.wisconsinnurses.org/media/WNA_Position_Paper_Criminal_Neglect.pdf. The focus should be onproviding these professionals with the opportunityto learn from their mistakes, notto punish them with criminal sanctions.ConclusionCriminal punishment for medical negligentconduct is a growing trend. Studies of thesecases indicate that the triers of fact tend toplace a greater emphasis on the defendant’ssubjective state of mind. The concern is thata jury may render a “guilty” judgment withoutconsidering whether the health careprovider’s conduct fell within the objectivestandard of care. Moreover, the criminalizationof medical negligence fails to servethe three goals of criminal law. Criminalculpability for health care providers shouldbe limited to instances of recklessness. Providerswho are reckless will be criminallypunished for undertaking actions in whichthey were aware of the risks.Ultimately, civil liability is the preferredmethod for settling issues of negligent conduct.It provides the patient with the opportunityto recover for his or her injuries andmedical expenses. Additionally, medicaland nursing boards already have existingprocedures for punishment and reform,all of which supersede the necessity of aprison sentence. With these existing civilliabilities and sanctions, the focus shouldbe on rehabilitating these health care providersto prevent them from repeating thesame mistakes, and not imprisoning themfor unintentional error.88 n For The Defense n July 2010Outside Counsel, from page 67Farm. Mrs. Dunn appealed a partial summaryjudgment order, as well as a protectiveorder for State Farm’s attorneys’ files.Regarding the protective order, Mrs. Dunnclaimed that the attorney- client privilegedid not apply because the attorneys hadcreated the documents that she soughtwhen they had been acting as investigators,rather than as attorneys.The Dunn court relied on the MississippiRules of Evidence, as well as a MississippiSupreme Court case, and the standard thatthe attorney- client privilege relates to andcovers all information that a client receivedfrom his or her attorney in his or her professionalcapacity and in the course of representationof the client. Id. at 875 (citingBarnes v. State, 460 So. 2d 126, 131 (Miss.1984)). The court noted that privilege protectiondid not require that a communicationcontain purely legal analysis or advice.Dunn v. State Farm Fire & Casualty Co.,927 F.2d 869, 875 (5th Cir. 1991). Instead,if a communication between a lawyer andclient would facilitate rendering legal servicesor advice, that communication wouldbecome privileged. Id.The Dunn court held that the attorneyclientprivilege protected the documentsthat Mrs. Dunn sought. Id. The courtextended the privilege to all communicationsbetween State Farm and the outsidecounsel that it had retained. Id. Furthermore,the court held that “The privilege isnot waived if the attorneys perform investigativetasks provided that the investigativetasks are related to the rendition of legalservices.” Id.ConclusionSo, what are outside attorneys working forinsurance companies to do? Court decisionsplace overriding importance on therole that an outside attorney fulfills. Asdetailed above, courts regard whetheran outside lawyer provides legal advice,rather than simply fulfilling a claims handlingrole, as critically important. Whenan outside lawyer has a “mixed” role, seeingto withhold documents from productionbased on the attorney- client privilegeor work- product doctrine becomes difficult.However, outside counsel can takecertain precautions to strengthen an argumentthat a court should not require a clientto produce a document when retainedby insurance companies.Although you may lose the battle, particularlywith investigative facts and materialsif you have prepared them whenretained as outside counsel before an insurancecompany has made a definitive decisionon coverage for a claim, you can stilltake measures to establish elements ofthe attorney- client privilege in your communicationswith insurers as clients. Forexample, identify yourself as your client’sattorney in all communications with them.State that the purpose of the communicationis to provide legal advice and clearlyclassify legal opinions and mental impressionsas such in your written analyses. Statethat documents prepared for your clientare privileged, attorney- client communications.Finally, exercise care, only sendingcommunications to a client, avoiding additionalor unnecessary recipients.
Multiple, from page 82agreement, then he or she should draft oneseparately and execute that as well. Thiswritten agreement will become a sourceupon which all parties may rely throughoutlitigation in discussing case strategy andexpectations. The language in the agreementmay also provide evidence for anattorney should legal malpractice issuesarise during or after representation.Consultation with ProfessionalMalpractice AttorneyJust as it is important to fully discusswith clients the potential risks and benefitsinvolved in joint- representation, itis equally important that an attorney feelcomfortable undertaking those same risksand benefits. In some instances an attorneymay have questions or concerns aboutengaging in a joint- representation. If anattorney does not understand if undertakingrepresentation of a joint defensein a particular case is permissible, youshould consider consulting with a localattorney who specializes in professionalmalpractice or legal ethics issues. Afterfully discussing the specifics of a case,the specialist can offer advice on proceedingwith the representation. Often, thisattorney will assist you to draft a jointrepresentationagreement. Just as multipledefendants do not have a legal obligationto retain the same counsel, counsel doesnot have an obligation to represent multipledefendants.ConclusionThe goal of this article has been to providethe reader with a framework withinwhich to consider actions and strategieswhen potential joint- representation arises.Joint- representation can have notableadvantages, but if you do not take carein representing multiple defendants, theramifications can prove devastating. The“elephant in the room,” though avoidable,becomes much more prominent whenattorneys are unaware of its power or forceand do not take steps to protect themselvesfrom it.Altered Records, from page 60Custom and habit evidence is importantand can be quite persuasive. Even though awitness does not have a specific recollectionand even though something was not writtendown, a witness can testify about the likelyoccurrence of an event on a specific occasionif a person acted in conformity with ahabit or routine practice. For example, indefending a claim for lack of informed consentto a hysterectomy, a gynecologist wasallowed to testify about his regular habitof discussing the nature of the surgery togetherwith its risks and benefits. Reaves v.Mandell, 507 A.2d 807, 810 (N.J. Super. Ct.Law Div. 1986). Accord, Velazquez v. Portadin,729 A.2d 1041, 1052 (N.J. Super. Ct.App. Div. 1999), rev’d on other grounds, 751A.2d 102 (N.J. 2000). Although the physiciandid not recall the specifics of the conversationwith this patient, he presentedevidence of similar circumstances “manytimes” before rather than an isolated occurrence,thus providing a foundation forthe admission of this evidence. The jury wasinstructed that it was to determine whatweight and value to give to this testimony.A jury’s acceptance of this evidenceoften depends on the perceived credibilityof the witness—the physician—describinga custom and habit. It is precisely thatcredibility that is called into question andat risk when an altered records issue arisesin a malpractice case.Custom and habit evidence is circumstantialevidence. Circumstantial evidenceis indirect evidence. It involves an inferentialprocess that establishes facts through aprocess of deductive reasoning, sometimesdrawing an inference from an inference.Circumstantial evidence falls within twocategories: (1) certain—that from whichthe conclusion in question necessarily follows,and (2) uncertain—that from whichthe conclusion does not necessarily follow,but is probable only, and is obtained by aprocess of reasoning. In civil cases, a jurydecides in favor of the party on whose sidethe evidence preponderates, according tothe reasonable probability of truth. Mereguess or conjecture cannot substitute forlegal proof, but it is difficult to mark withprecision the line that separates a just andreasonable inference from mere conjectureor surmise. Generally, to sufficiently differentiateconjecture from circumstantialevidence, the claimed conclusion from theoffered fact must be a probable or a moreprobable hypothesis, compared with thepossibility of other hypotheses.Because aspects of an incompletely documentedexamination may be deduced fromother entries, defense counsel must reviewthe circumstantial evidence and assess itspersuasiveness. An extremely simple exampleillustrates this concept. Nowherein a chart is it “written down” that a bloodpressure cuff was applied to a patient’s arm.However, an entry of 140/75 is in the record.Probably, that conclusion and resultingentry was reached through applicationof a cuff and a witness could reasonablytestify to having done so. Take a more nuancedillustration. A medical record for alawsuit involving a surgical sponge allegedlyleft in a patient where the nurses reporteda “correct” sponge count does nothave any written entry indicating that thesurgeon inspected an area of the abdomenbefore closure, but nonetheless records theplacement of a Jackson- Pratt drain just beforeclosure. This written fact leads to inferencesregarding what the surgeon did toplace the drain and to the inference that thearea of the abdomen must have been manuallyprobed by the surgeon’s hand.This analytical process can be hardwork. When defending a medical malpracticecase, an attorney needs to testthe inferences against other evidence andarguments. Although this process cannotprovide a complete substitute for a missingmedical entry and may not overcome specific,problematic entries in a chart, it offersa way of proving probable facts without thenegative effect and consequences of belatedlyaltering a record to insert a true fact.The quotation at the top of this articleis from Sir Walter Scott’s long poem,Marmion. It describes a web woven by aspider. It traps flies with its stickiness, andthe more they wriggle to escape, the morethey become entangled in the web. Thisfamous passage warns that the liar spinsand weaves his or her own trap withoutrealizing that this has been done until heor she becomes caught in it. Mixing metaphors,unless physicians avoid this trap andpreserve the integrity of medical recordsand themselves, they may fall down a rabbithole and fail to find a way out.For The Defense n July 2010 n 89
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