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1 u renee thompson, DNP, RN, CMSRN who suffers the most when nurse bullying exists? issue 7 WINTER 2014 u maria damiano, ll.b. utilizing a nurses expertise beyond the expert report u ray ferris at least do no harm GREATER VANCOUVER LEGAL NURSE CONSULTANT ASSOCIATION GVLNCA news Join the GVLNCA Visit the GVLNCA website for membership information at Editor s Commentary by Angela Sibbald, RN, BSN The Greater Vancouver Legal Nurse Consultant Association (GVLNCA) has been busy with exhibiting at the Trial Lawyer s Conference this past September 19, 2014, and preparing for the upcoming GVLNCA conference in Vancouver on November 7, The conference will offer our members and guests with an opportunity to network and attend a full day of educational sessions. The GVLNCA executive has spent the past few months locating a venue, scheduling presenters and marketing this event to Legal Nurse Consultants (LNC) and members of the legal community. In this edition of GVLNCA News, Maria Damiano, a lawyer with Paul Harte Professional Corporation, examines the value of nurses to lawyers beyond preparing an expert report. Sondra Rutman, President of Legal Nurse Atlantic Inc., shares with us how important an LNC s knowledge, experience and candor is during case analysis. Ray Ferris writes about children and how they suffer when child protection services delays issues before the courts in spite of the Child, Family and Community Service Act containing admonitions to quickly resolve cases where young children are involved and to maintain kinship contact. Dr. Ron Waldrop, a pediatric emergency physician, explains how the clinical characteristics, diagnosis, and management of minimal traumatic brain injury (MTBI) are well described in patients over age 15, however, less is known about how MTBI affects younger children. In this edition, Vancouver lawyer Rose Keith describes how negligence is assessed differently in slip and fall cases than in other personal injury cases.

2 Upcoming Conferences and Courses Greater Vancouver Legal Nurse Consultant Association Presents: Innovative Approaches to Enhance Your Practice November 7, :30 AM to 4:15 PM Shangri-La Hotel 1128 West Georgia Street Vancouver, British Columbia Who Suffers the Most When Nurse Bullying Exists? by Renee Thompson, DNP, RN, CMSRN It is 2 o clock in the morning and Cassie, a new nurse, is concerned about her patient. The physician on call is notoriously known for screaming at nurses, making them feel like idiots. The night shift nurses are the ones who eat their young. Cassie feels overwhelmed and alone. She does not know what to do and fears for her patient. Who is at risk in this situation? Bullying is destructive and does not belong in a profession dedicated to caring and compassion. Bullying behavior poses a significant threat to individuals, organizations, and the public. But who suffers the most when bullying exists? Individuals who are bullied suffer physical, emotional and psychological stress. Many victimized nurses decide to leave their organization and the nursing profession altogether. Organizations with a high rate of bullying incur higher turnover, higher costs, and worse patient outcomes. However, ultimately, it is the patient who suffers the most when bullying occurs. When nurses spend mental energy trying to avoid the bullies, they are unable to focus on patient care and, therefore, do not always make decision based on what is best for patients. What can nurses do to minimize bullying in the workplace? Quotable Quotes Success is to be measured not so much by the position that one has reached in life as by the obstacles which have been overcome while trying to succeed. -Booker T. Washington The key to success is to focus our conscious mind on things we desire not things we fear. -Brian Tracy Recognize Bullying Behavior Nurses get so used to bad behavior that it becomes the norm. We often hear people say, Just ignore her. That s just the way she is. Or, Don t take it personally. However, if we are going to put an end to bullying behavior, we must stop accepting the bully s disruptive behaviors! Speak Up Many targets of bullying suffer in silence because they fear retaliation. Although retaliation is alive and well, bullies use fear as a weapon against their victims, preventing them from saying anything. If nurses started speaking up, the bullies would lose their perceived power. Address Bad Behavior We need to stop ignoring bad behavior and address it. An easy way to do this is to name it. You are yelling at me in front of others. Remember, what we ignore, we condone. Remember, nurses have an ethical responsibility to make decisions based on what is best for the public. Nurses need to work together as a team, support each other, and have the confidence that their co-workers have their backs and will not stab them in the back. 2 GVLNCA news Winter 2014

3 Case or No Case? LNC Expertise by Sondra Rutman, RN, BA, LNC President, Legal Nurse Atlantic Inc. While the subspecialty of legal nurse consulting was pioneered more than twenty years ago in the United States of America, it is still relatively new in Canada. Whatever led us to search for a new career opportunity be it fatigue, burn-out from bedside nursing or an entrepreneurial spirit those of us who practice as legal nurse consultants are a determined group. We want to be successful business owners. We have been taught that we can be successful LNCs because, as registered nurses, we have accrued a vast skills-set, acquired over time and variety of clinical experience. Applied to medical malpractice, personal injury, insurance defense and products liability cases, we have an immense amount of knowledge that can assist lawyers and their clients with their cases. Perhaps our enthusiasm for our new careers can, in and of itself, be a stumbling block to our success. I have spoken to a lot of legal nurse consultant colleagues who have expressed having had similar experiences to what I am about to talk about. See if any of this sounds familiar to you: You are so excited! You just got a call from a lawyer you had previously contacted, and she wants to retain you to evaluate a case for merit. The statement of claim names two nurses in the lawsuit. You cannot believe you have gotten the case and cannot wait to dig in to the meat of the situation, to go through it with a fine-tooth comb and to provide a comprehensive, objective review. As soon as you receive the medical records, in you go, head-first. So, you slog through the heap of records and compile a list of errors and omissions you have noted. Basically, you conclude that the named nurses were stellar in their performance. Perfection, with the exception of an occasional missing documentation of a set of vital signs or potentially more serious, one of the nurses neglected to notify a physician about an increased white blood cell count of the patient. Not much, you think, but they did breach their standards of care in possibly not performing vital signs as required and certainly not documenting the vital signs was an error. And what about the nurse who neglected to inform the attending physician of an increased white blood cell count on her patient? The nurse, in fact, may not have ascertained vital signs for the patient. Was that nurse attending to another acutely ill patient by herself? Was she involved in a code for another patient? Had two nurses called in sick and she was managing fourteen patients on her own because staffing could not replace the sick nurses? These are important questions to ask and the answers may have implications for the hospital as well. Of course, if the nurse did take the vital signs and neglected to document same, that is less than ideal. What happened to the patient as a result of the nurse not documenting those vital signs? And what about the other named nurse, who neglected to notify the doctor of an increased white blood cell count on the patient? Clearly, she did not meet her standard of care for communicating vital information to ensure appropriate care for her patient. But, again, what was the situation and, more to the point, did that patient suffer any damages as a result of the absence of communicating? What harm resulted from this inaction? If the errors described above did not result in harm to the patient, it is unlikely that the case will end with a plaintiff being awarded damages. Surely, you point these issues out to your lawyer, whether defense or plaintiff; that is your job. Your lawyer will appreciate your candor about the lay of the medical landscape and that is what our business is all about. Sondra Rutman is President of Legal Nurse Atlantic Inc. and has reviewed files for both plaintiff and defense lawyers for medical malpractice, personal injury, insurance matters and product liability cases Winter GVLNCA news 3

4 Slips and Falls Causation and Duty of Care by Rose Keith, LL.B. As a personal injury lawyer I am often consulted with respect to injuries that have occurred as a result of a slip and fall. The basic principles in this type of case are no different than in any other personal injury case, specifically, it falls to the plaintiff to establish that they suffered an injury and that the injury was a result of the negligence of the named defendants. The difference is in how negligence is assessed. Just because someone has slipped or fallen on your premises does not mean that you are automatically liable for the resulting injury. As in any negligence claim to be successful, a plaintiff must demonstrate that: S. 3 of the Occupiers Liability Act outlines the nature of an occupier s duty of care in relation to persons who are using their premises. That section provides as follows: a) The defendant owed him a duty of care; b) The defendant s behavior breached the standard of care; c) The plaintiff sustained damage; and d) The damage was caused, in fact and in law, by the defendant s breach. Generally, the primary issues in a slip and fall case are whether the defendant breached the standard of care and whether that breach caused the damage suffered by the plaintiff. In slip and fall cases the claim is generally against an occupier under the Occupier s Liability Act. The standard of care for an occupier was described by the Supreme Court of Canada in the case of Ryan v. Victoria (City), [1999] 1 S.C.R. 201 in which the court said the following: Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person s property, on the premises and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises. (2) The duty of care referred to in subsection (1) applies in relation to the (a) condition of the premises; (b) activities on the premises; or (c) conduct of third parties on the premises. (3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to (a) create a danger with intent to do harm to the person or damage to the person s property, or (b) act with reckless disregard to the safety of the person or the integrity of the person s property. The standard expected of an occupier is one of reasonableness, not perfection. As stated in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33: the duty owed by an occupier of premises is to take reasonable care to see that persons using the premises will be reasonably safe. The Acts do not impose a duty to take reasonable care to insure that persons using the premises will be absolutely safe cont d on page 5 4 GVLNCA news Winter 2014

5 Slips and Falls cont d From the cases that have considered liability of an occupier, in addition to the requirement of proving that the occupier was in breach of his duty of care, a number of principles can be discerned. Those are as follows: 1. There is no presumption of negligence just because of the fact of an injury. It falls to the plaintiff to establish that some act or failure to act on the part of the occupier resulted in the injury; 2. The duty of care established under the Occupier s Liability Act does not require the occupier to remove every possibility of danger the test is one of reasonableness, not perfection; 3. The plaintiff must prove the connection between his fall and the occupier s breach of the duty of care; 4. The care that is required of the occupier varies according to the nature and use of the premises; 5. The occupier does not always have to show that they have a policy in place to deal with maintenance of the premises rather the nature of the premises will determine whether or not a maintenance scheme is required; 6. An occupier is required to take reasonable steps to remedy any unsafe condition that would be seen to be a relevant risk associated with the use of the premises. All of these principles make liability in a slip and fall case difficult to prove. The burden on the plaintiff of establishing that there is something that the occupier did or failed to do that caused the fall can be difficult and results in a two-fold evidentiary burden on the plaintiff. They have to establish first what hazard or condition caused the fall and that second that it was the defendant s breach of its standard of care that caused the hazard or condition to exist. Unless the plaintiff can state what it was that caused them to fall, they will not be successful. There has to be evidence before the court beyond speculation of what has caused the plaintiff to fall. Unless the plaintiff establishes what hazard caused the slip the court will not go on to consider whether it has been established that the presence of the hazard was caused by the defendants breach of its duty of care. If a breach of the duty of care resulting in the hazard is established, the defendant can then refute this with evidence that a reasonable standard of maintenance was in place. From the above discussion of the principles that apply in determining liability for injuries suffered in a slip and fall it will be evident that the cases are difficult and are often lost at trial on the basis either that the plaintiff failed to establish what caused them to fall or that the defendant had a reasonable maintenance policy in place. Our courts do not require perfection from occupiers, rather they only require reasonable steps to be taken to ensure that users of premises will be reasonably safe. Rose Keith Law Corporation Articles and Comments Are you interested in writing an article for the GVLNCA Newsletter or have any comments or suggestions for future articles? Send your comments to Angela Sibbald at GVLNCA Executive Pat Kermeen, President Doreen Carlson, Vice-President (Interim) Wendy Scott, Secretary Neal Dunwoody, Treasurer (Interim) Join the GVLNCA Visit the GVLNCA website for membership information at Angela Sibbald, Editor of the GVLNCA News and Event Coordinator 2014 Winter GVLNCA news 5

6 Childhood Minimal Traumatic Brain Injury Clinical Characteristics, Diagnosis and Management by Ron D. Waldrop, MD, FAAP, FACEP, FACPE Pediatric Emergency Physician, Huntsville, Alabama Minimal traumatic brain injury (MTBI) has received much attention in the press recently. The clinical characteristics, diagnosis, and management of MTBI are well delineated in patients over age 15 however, less is known in younger children. MTBI symptoms include: cognitive (i.e. slow thinking, poor memory), somatic (i.e. headache, photophobia), mood (i.e. agitation, demeanor change), and sleep related (i.e. less or interrupted) symptoms. Confounding factors in the young child include the belief by some adults that MTBI does not occur in young children, inability of children to communicate symptoms, and wide variations in neurodevelopmental state as well as unique presentations such as specific cognitive deficits (i.e. dyscalculia or difficulty in learning math) and behavior changes. Children are also subjected to symptom triggers repeatedly in the school environment such as bus rides, loud sharp noises, white teaching boards, and prolonged school days. There is increasing evidence of a longer recovery period than previously anticipated due to brain injury clinically unrecognizable but demonstrated on specialized imaging. Thus, the diagnostic term of post-concussion syndrome is becoming less descriptive since it is uncertain when the MTBI actually ends. In all age groups it remains difficult to definitively state when an MTBI victim is medically cleared to return to activity. Nonetheless, the management of MTBI still follows fundamental tenets including: early intervention of trained sideline professionals, improvement in game rules and equipment, immediate removal from activity if MTBI is suspected, rapid evaluation for catastrophic brain injury as indicated, initial cognitive and physical rest, dietary management, early and recurrent evaluation by a professional well versed in MTBI management, diagnostics as indicated including cognitive (i.e. ImPact testing), balance and ocular testing as well as symptom management (i.e. nausea, headache), rehabilitative interventions related to diagnostic findings, gradual reintegration into cognitive and physical activity, and very cautious return to participation in head threatening activities. Professionals must pay close attention to the medical literature as the scope of MTBI understanding is rapidly advancing. Dr. Waldrop is a pediatric emergency physician at the Huntsville Women s & Children s Hospital in Huntsville, Alabama. Huntsville Hospital is an 881-bed community-based, not-for-profit institution. It is the sixth largest publicly owned hospital system in the United States of America. 6 GVLNCA news 2014 Winter

7 Ask A Lawyer Utilizing a Nurse s Expertise Beyond the Expert Report by Maria Damiano, LL.B. Paul Harte Professional Corporation I have been asked to comment from a legal perspective on how a nursing expert can assist a lawyer in all aspects of his or her medical malpractice case. At our firm, we employ a former nurse as a clerk who assists in various stages of our cases from the intake to trial. Over the last few years, I have observed the growing trend in the legal community of employing former healthcare professionals to provide in house assistance. Even if you are not thinking of changing your day job, a nurse can provide assistance to a lawyer beyond just preparing an expert report. The Initial Intake and Early Stages of a Case Creative Commons: Image courtesy of Evan Leeson on Flickr. Assist in sifting through all the new case call requests to determine which case will have a good chance of succeeding from a liability perspective. Compiling relevant medical research. Assist the lawyer in developing an initial theory of the case. Pinpoint the relevant records to order. Prepare a Medical Chronology. A chronology is a cornerstone to any case as it can be utilized to draft a Statement of Claim, instruct experts, prepare for discovery and as a tool at trial. Statement of Claim/Statement of Defence With a Statement of Claim, assist in identifying the defendants in a case. Provide guidance regarding the medicine to a lawyer in drafting a claim or defence. Expert Assist the lawyer in identifying the best non-nursing experts for the case. Facilitate the retaining of the experts. Assist in drafting instructing letters to the experts. Maria Damiano, LL.B. Paul Harte Professional Corporation Woodbine Avenue Markham ON L3R 9W9 T: Assist in preparing the lawyer for a call with the expert, including identifying the relevant issues of the case and the relevant questions to ask the expert. Assist in analyzing and critiquing the other side s expert report. Discovery Provide a medical background to the lawyer. Assist in developing the questions to be asked to the defendant. cont d on page Winter GVLNCA news 7

8 Ask a Lawyer cont d Trial Preparing more detailed medical chronologies to be utilized as demonstratives at trial (i.e. medical testing chronology; medication chronology ). Assist the lawyer in preparing questions to be utilized in both direct and cross examination of relevant medical personnel (i.e. the defendant health care worker or the medical experts). The above list is a small sampling of how a nurse can provide assistance to a lawyer beyond just providing a nursing report in a given matter. In many cases, there may not be a nursing defendant. By utilizing your medical expertise, a nurse can ensure that he or she can provide assistance to a lawyer even where no nursing expert report is needed. The medical expertise and knowledge that a nurse has can often prove invaluable to the lawyer who has little or no medical background. At Least Do No Harm Social Work and Nursing by Ray Ferris Nursing and social work have a long history together. Sisters in holy orders used to tend to the sick, the poor and the orphans. Somewhere along the line everyone took different paths. A vestige of the old order lingers in medical social work. In Britain they used to be called Lady Almoners. These almoners no longer dispensed alms, but assessed what fees they thought the patient could afford. Nurses kept very faithful to the task of healing, with training becoming ever more scientific and evidence based. Social work became very preoccupied with theory and formal social work training tended to deal more with psychological theories, while practical skill training was neglected. Neither registered social workers nor registered psychologists have many practice standards defined by their respective colleges. Private practice social workers and psychologists are fairly free to their own thing. Evidence based social work is almost an oxymoron. Social workers in the public realm are mainly medical social workers, probation officers, family court counsellors and they perform various functions in child protection and related services. All these people are governed by administrative law and become executors of public statutes. For much of my career I had responsibilities under thirteen or fourteen different statutes. So I considered it important to know both the letter and the spirit of those laws. Nowadays nobody seems to bother. Child protection in this province comes under the Child, Family and Community Service Act. The best interest clauses in the Act contain many admonitions to resolve cases speedily on young children and maintain kinship contact. This is to avoid the emotional damage of separation trauma. How is it in the best interests of children to keep them in limbo and before the court for two, three and four years, while they are moved from home to home? How is it in the best interests of children to force the parents to sell the family home to pay the legal costs to get back their children? Yet that is what happens far too often. An ancient guideline in medicine is At least do no harm. This was originally written in Greek. It may as well still be written in Greek for all the attention it gets from child welfare directors. Ray Ferris is a retired social worker who has handled numerous cases of wronged foster parents and families caught up in the child protection system. We wish to thank our past sponsors. Copyright 2014 GVLNCA. All rights reserved. 8 GVLNCA news 2014 Winter

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