news GVLNCA Welcome to the Spring/Summer edition of the Greater Vancouver Legal President s Message ISSUE 6 SPRING 2014 by Angela Sibbald, RN, BSN

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1 u natalia ivolgina, ll.b. interview with a plaintiff medical negligence lawyer... 2 ISSUE 6 SPRING 2014 u susanne raab, ll.b. the influence of the retaining lawyer on an expert s report... 3 u dom bastita keys to legal expertise GREATER VANCOUVER LEGAL NURSE CONSULTANT ASSOCIATION GVLNCA President s Message by Angela Sibbald, RN, BSN news Welcome to the Spring/Summer edition of the Greater Vancouver Legal Nurse Consultant Association (GVLNCA) newsletter. The GVLNCA has spent the past several months building connections with health care professionals and the legal community. On November 1, 2013, the GVLNCA hosted an educational event that was attended by legal nurse consultants, guests and members of the legal community. One of our legal nurse consultants, Lisa Constable, has agreed to share a few of her insights from the education event. Catherine Woods, a defense lawyer with Guild Yule LLP, made a presentation on nursing standards of care and causation issues. Catherine shared many insights, including: a negative outcome does not mean that negligence was involved; proving negligence can be challenging not enough to say there was a breach of care period you have to prove that the breach led to causation (outcome); and good charting practices save nurses. Mark Davies, a psychologist in private practice, shared his expertise regarding post-traumatic stress syndrome (PTSD). Mark discussed how PTSD can be based on an accumulation of events, and that it does not have to be based a single incident. Mark also spoke about how memory and emotion are linked and imbedded inside of us. By using cognitive behavioral therapy, people can be helped to separate the emotion from the memory by reliving the situations that caused their PTSD. Richard Chang, a lawyer with McComb Witten, discussed the importance of the expert seeking clarification to questions being asked of them in the courtroom. Richard reminded us that although we have been retained by a specific lawyer, we are not there for the lawyer; we are there as an expert for the court. Ray Ferris, a retired social worker, spoke passionately about the problems with the legal system and social services in handling cases where children have been wrongfully removed from their parent s home. People who are involved in these cases should not infer injuries from symptoms alone, sometimes there are other explanations. The day ended with Abigail Wiley sharing a presentation on professional branding and the importance of looking at what we do well, discovering what the client wants, and not allowing fear to prevent us from taking on new challenges.

2 Upcoming Conferences and Courses Greater Vancouver Legal Nurse Consultant Association Presents: Luncheon/Educational Event April 12, :15 AM to 2:00 PM Shangri-La Hotel 1128 West Georgia Street Vancouver, British Columbia The LNCAC Ontario Chapter Presents: Lawyers and Nurses working collaboratively to address Medical Malpractice: what every Nurse should know Sunday, May 4, :30 to 14:30 LNCAC AGM: 14:45 to 16:30 Westin Harbour Castle, Toronto 1 Harbour Square, Toronto, Ontario Natalia Ivolgina Interview with Natalia Ivolgina by Angela Sibbald, RN, BSN Natalia Ivolgina is a plaintiff counsel with Pacific Medical Law in Vancouver, British Columbia. Natalia practiced medical defence prior to becoming a plaintiff medical negligence lawyer. She now represents individuals who have lost family members in fatal accidents, and individuals severely injured in motor vehicle accidents. Recently, I had the pleasure of meeting with Natalia to ask about her personal and professional life. A. Where did you grow up? Why did you decide to move to Canada? N. I grew up in Moscow, Russia. As I have family members who live in Canada, I made the decision to come here to study. A. What inspired you to become a lawyer? N. My volunteer experience with Youth Court, restorative justice initiatives and wanting to help people who have been injured. A. What do you find most rewarding about your chosen profession? N. Being able to help people get the compensation they need. A. What do you like to do in your free time? What are your favourite hobbies or interests outside of work? N. I enjoy traveling, hiking, being outdoors, reading, and working out at the gym. Quotable Quotes Happiness is not in the mere possession of money; it lies in the joy of achievement, in the thrill of creative effort. -Franklin D. Roosevelt Cherish your visions and your dreams as they are the children of your soul, the blueprints of your ultimate achievements. -Napoleon Hill To improve is to change; to be perfect is to change often. -Winston Churchill A. What are some of the challenges you face in your profession as a lawyer? N. Probably not being able to provide any immediate financial relief to my clients and dealing with the fact that it takes a long time to arrive at any results. A. How do you keep a healthy work/life balance? N. I do yoga, work out at the gym, and visit with family and friends. I m also blessed to be working at a firm that encourages work life balance. A. Tell me something about yourself that people might not readily know. N. I once swam with wild sharks off the coast in Belize. A. What one word would you use to describe yourself? N. Adventurous! 2 GVLNCA news Spring 2014

3 The Influence of the Retaining Lawyer on an Expert s Report Where to Draw the Line by Susanne Raab, LL.B. Lawyer with Pacific Medical Law, Vancouver This is an area which often creates a degree of uncertainty among experts. An expert may be concerned about the propriety of discussing his or her report with the lawyer who retained him or her. The expert may feel the process of receiving input and comments from the lawyer may compromise his or her duty to be independent and impartial. Input from the lawyer is essential to a properly drafted expert report. A well-written expert report which conforms to the rules of evidence and rules of court reflects positively on the expert, and avoids lengthy objections at trial which can detract from the value of the expert s opinion. It is entirely appropriate, and often necessary, for the lawyer and the expert to review and discuss the expert s report before it is finalized, as long as certain boundaries are respected. The areas where the retaining lawyer may have some input into the expert s report include the following: To ensure the technical requirements of an expert report, as set out in Rule 11 of the Supreme Court Civil Rules, are met; To suggest corrections to grammatical and typographical errors; To ensure the factual assumptions contained in the report are clearly set out, and include only those factual assumptions which the lawyer will be able to prove at trial; To ensure the expert report does not contain unnecessary and irrelevant factual assumptions; and To ensure the expert has fully addressed the issues identified by counsel. There are, however, limitations and boundaries which must be respected when the expert consults with the lawyer. While the lawyer may play a role in the formation of the opinion by directing the expert s attention to relevant facts and by identifying the questions to be addressed by the expert, the final opinion of the expert must be that of the expert alone. It is inappropriate for the lawyer to enter into the realm of collaborating with the expert on the very substance of the expert s opinion, or to otherwise influence the expert s opinion. Keep in mind that as the expert in the witness stand, it is the expert s reputation on the line. The lawyer will respect an expert for being firm and unwavering in his or her opinion, as it will give the lawyer confidence in the expert s ability to stand firm on his or her opinion during cross examination Spring GVLNCA news 3

4 Keys to Legal Expertise Continuing Legal Professional Development by Dom Bautista Three and half years ago, the Government of British Columbia, after consulting with stakeholders, legislated a new set of Rules of Court, designed specifically to provide just, speedy and inexpensive determination of every case on its merits. These rules now require parties to prepare their materials within a shorter timeframe. For lawyers who practice personal injury law, the shortening of time has heightened the need to collect and analyze medical records of injured parties in a more efficient manner. Some lawyers who have relied on experts to assist in the interpretation of clinical records have been better abled to focus on the evidentiary aspects of the claim. Some higher volume practices have opted to bring medical expertise through the hiring of in-house nurses; others have hired Kinesiologists as case managers providing medico-legal triage. If the prospects for a legal nurse career look good, how does an RN get there? For nurses who enter the legal field, they come with one set of highly prized skills: their knowledge of medicine (some even have specialized. In order for them to be taken seriously by legal professionals, nurses need to acquire legal knowledge. In the Winter 2013 GVLNCA newsletter, Ms. Brown posited the question: how do you gain the lawyer s trust? One good way is to learn the same body of knowledge and skills that young lawyers and legal support staff need to acquire. And to learn it alongside them. In designing Law Courts Center s Legal Nurse Personal Injury Program I Certificate, we recognized that nurses needed to be comfortable with the language, the mindset, the approach to files, the Rules of Court, ethical issues, medically related legal issues and most importantly, in their ability to convey their analysis to the rest of the legal team. So how daunting are these classes? The learning outcomes are the same for all learners, but all the work (and there is quite a lot), is open-book. Everyone is encouraged to ask anyone (even lawyers), to collaborate to finish their work. As you know, a handful of intrepid colleagues of yours have begun their studies with us. Doreen Carlson RN: The class was congenial, helpful and their knowledge was impressive, and was conducive to learning. Pauline Barratt RN: My fellow students are delightful, friendly and respectful of my different professional background. I have developed a deep respect for the skills of paralegals, their knowledge and the demands of their jobs. And I particularly enjoy the opportunities in the classes to share our diverse areas of knowledge and learn from each other. As an added bonus, being in a room with lawyers and support staff has its benefits. Angela Sibbald RN says: It gave me an opportunity to share what a legal nurse consultant is for those who aren t familiar with the role of a legal nurse consultant. Completing Law Courts Center s Legal Nurse Personal Injury Program I Certificate should translate to an increased level confidence when communicating with lawyers and their staff. Completing the certificate program will provide you with competence and confidence to be part of a legal team. Dom Bautista is Executive Director at the Law Courts Centre. Legal Nurse Personal Injury Program I Certificate Civil Litigation 102 (to understand fundamentals of civil litigation) Clinical Records Studies 101 (to understand how legal teams approach the reports) Heads of Damages 101 (to understand how pecuniary and nonpecuniary damages translate to quantums) Modern Litigation Writing 101 (to be able to write reports and correspondence) MVA Files 103 (to understand how files are acquired and managed) Part 7 Benefits 101 (to understand how the no-fault portion of the ICBC insurance policy works, particularly in managing health related disbursement claims) Reference: lawcourtscenter.com 4 GVLNCA news Spring 2014

5 Ask A Lawyer Surgical Negligence Versus Surgical Misadventure by Miles Obradovich, BSc, JD Obradovich Law I have been asked to comment from a legal perspective, on how you determine what is negligence versus misadventure? Negligence in surgery can be difficult to prove. Often successful cases are grounded in a problem in the pre-operative workup or in the failure to recognize or promptly treat postoperative complications rather than in an error in the surgery itself. The reasons for this are manifold. It is a matter of common sense, well reflected within our jurisprudence, that an unsatisfactory surgical result is not necessarily indicative of negligence. However carefully and expertly a surgical procedure may be performed, it is understood that a positive outcome cannot be guaranteed. There are risks inherent in virtually every surgery, and the mere proof of surgical injury will be insufficient, per se, to establish negligence on the part of the surgeon. Mere misadventure must not be considered negligence. A surgeon will not be held liable for mere errors of judgment. The legal principles involved require every medical practitioner to bring to the surgical task a reasonable degree of skill and knowledge and to exercise a reasonable degree of care. He or she is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he or she holds himself out as a specialist, a higher degree of skill is required of him or her than of one who does not profess to be so qualified by special training and ability. It is not always easy to apply these legal principles to particular circumstances. In trying to assess whether a surgical outcome is a result of negligence as opposed to a misadventure or accepted risk of the surgery lawyers look for departures from standard and usual practice. These can include failure to obtain necessary pre-operative imaging, failure to obtain an adequate operative field, failure to recognize a known normal part of anatomy, failure to recognize that the surgical site is an incorrect one, failure to use appropriate or properly prepared equipment, failure to follow manufacturer s instructions for the use of guides and tools, failure to properly measure, failure to use the surgical technique or remedy best suited for the particular injury, failure to take due precaution for the preservation of portions of the anatomy that are not the subject of the surgery, or failure to recognise or suspect iatrogenic injury. These considerations are not simply theoretical. For instance a study has shown that wrong level disc surgery is the second most common reason for reoperation of a herniated disc. It can be the case that even though the outcome is one of an accepted risk that it still occurred as a result of negligence. I will illustrate this by way of a daily life analogy. One of the risks of surgery is that an unintended cut may occur whether it is one that was too deep, too long or occurred as a result of a slip. Everyone who slices vegetables in the kitchen on a regular basis sooner or later nicks a finger in some way. It is an expected risk and try as you might it never seems to be avoided. However if the nick occurred because you didn t remove vegetable oil from your hand or knife handle before starting then the cause of the nick is in fact negligence for failing to take due precaution. Creative Commons: Image courtesy of Evan Leeson on Flickr. Miles Obradovich, BSc, JD Obradovich Law Toronto Dominion Centre 95 Wellington Street West PO Box 4, Suite 901 Toronto, ON M5J 2N7 T: GVLNCA Executive Angela Sibbald, President Doreen Carlson, Vice-President Pat Kermeen, Secretary 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 2014 Spring GVLNCA news 5

6 Ask A Lawyer Omitting Information from Reports by Rose Keith Rose Keith Law Corporation A lawyer asks you to change your report by omitting Q mention of evidence or an observation based on material that may be in dispute, but you had initially included it in your analysis of the case. Omitting the information does not alter your opinion, in fact it significantly strengthens it, but this makes you vulnerable to cross-examination regarding its omission if it is admitted. Do you change your report and omit the information? I would say change the report and omit the information. I don t see how it harms you because if under cross examination A you are asked whether you considered that piece of information you are able to say yes. Also there may be a reason that the lawyer has asked for you to omit it from your report such as that they do not think that the other side will have identified that piece of information or something similar to that. Reviewing Health Records If you are reviewing records and it becomes evident that the plaintiff/patient has a history of a condition that is relevant to the litigation, how can you best assist legal counsel? Let s use an example to understand this. If you are hired on a case involving a knee injury, as legal counsel I would want you to point out to me several things after you have reviewed the records: 1. Anything in the records that is a sign or symptoms of the problem that the plaintiff had subsequent to the negligent act; 2. Anything in the records indicative of treatment to the area that is the subject of the litigation; 3. Any indication that the prior problem had been dealt with; 4. Any indication that there likely are other records that are relevant to the issue; 5. Anything in the records that would indicate that the plaintiff was more vulnerable to injury; 6. Anything in the records that indicated that this was an aggravation of a pre-existing condition; 7. Anything in the records that indicate that this condition would have arisen regardless of the negligent act; and 8. Anything in the records that indicate that the person s condition was worsened by the negligent act. The other information that would be helpful to me as legal counsel: An understanding from you of the nature of the condition that we are dealing with, how it is known to arise and what the natural course of it is. Furthermore, what is the treatment for it and the tests that are relevant to it? Importance of understanding opinion on standard of care based on the charting notes and previous history. Whether there has been non-compliance with treatment. Importance of ensuring that you have all the past information pointing out what information is missing. 6 GVLNCA news Spring 2014

7 Shoulder Dystocia The Role of the Nurse by Laurie Owens BSN, RNC, LNC Shoulder dystocia is an obstetrical emergency that occurs in up to 3% of vaginal deliveries. One definition is difficulty in the birth of the shoulders after the head has been delivered. Shoulder dystocia occurs when the delivering newborn s anterior shoulder becomes impacted behind the mother s pubic symphysis. The role of the nurse related to shoulder dystocia is to recognize the risks and to manage the emergency in a calm, focused manner. Shoulder dystocia, although unpredictable, is associated with some risk factors in the pregnant patient. Some of the more commonly associated risk factors include: Increased Birth Weight Is there a family history of large babies or diabetes/gestational diabetes in the patient? Does an ultrasound indicate a baby with macrosomia? Reoccurrence Has the patient experienced a shoulder dystocia previously, or had a baby with a clavicular fracture? Obesity Is the pregnant patient obese? Post Dates Is the patient past her due date? The nurse must also be aware of signs during the labor and delivery that may indicate possible shoulder dystocia. These include: Slow labor progress and/or slow descent of the presenting part. Turtling, which is where the delivered head pulls back against the perineum due to the impaction of the shoulder behind the pubic bone. Failure of spontaneous external rotation (restitution), which is where the head realigns with the shoulders. Recognition of the signs of shoulder dystocia and implementing proper and timely interventions should be the goal of the medical team. Some teams use the mnemonics listed here to guide them during this OB emergency: B Breathe. Have the woman breathe in order not to push any further E Elevate the legs into McRoberts position (Hyperflexing the patient s legs against her abdomen) C Call for help A Apply suprapubic pressure, which is pressure just above the pubic bone (Not fundal pressure!) L Enlarge the vaginal opening with an episiotomy (should be considered but not automatic) M Maneuvers (Further rotation maneuvers such as Woods or Rubin, or extraction of the fetal posterior arm) Other mnemonics and algorithms such as HELPERR and ALARMER are similar and may be used to guide the team. Complications may occur to mother and/or baby due to shoulder dystocia. Some common maternal complications that can have medical-legal ramifications are: Episiotomy with extensions into the rectal mucosa or muscle tissue Uterine atony and postpartum hemorrhage Bladder injury cont d on page Spring GVLNCA news 7

8 Shoulder Dystocia cont d Some common newborn complications that can have medical-legal ramifications are: Fracture to the clavicle or humerus Brachial Plexus injury ( one of the most common birth events precipitating litigation ), or Erb s palsy Asphyxiation (Mental retardation) Death After the emergency is over, the team must document what happened. The nurse will accurately document what she saw and all times for maneuvers and assistance given; who was present and the outcome of the delivery. The Legal Ramifications According to Simpson and Knox (2003), the most common reason for nurses to be named in shoulder dystocia cases is proceeding with improper techniques such as fundal pressure, applying suprapubic pressure incorrectly or performing invasive procedures without proper training. Because of the potential for litigation related to shoulder dystocia everyone working in labor and delivery should be prepared for this emergency. Adding a shoulder dystocia drill to the department s simulation training calendar would be invaluable. by Laurie Owens BSN, RNC, LNC References Shoulder Dystocia Nursing Interventions and Risk Management Strategies Mary Wright, MSN, RNC, CNS An Overview of Shoulder Dystocia The Nurse s Role Barbara Camune, CNM, WHNP, DrPH Mary C. Brucker, CNM, PhD, FACNM LNCs and the EBMSI Group In August 2013, several GVLNCA members had the pleasure of meeting Anne Renk- Bernardo, an LNC with the Evidenced-Based Medicine Social Investigation Group (EBMSI), at the Third Annual Evidence-Based Medicine and Social Investigation Group Conference in Surrey, British Columbia. Anne shared a presentation regarding the role of legal nurse consultants in these kinds of cases, what we bring to these kinds of cases and an overview of the benefits we bring to these kinds of cases. The EBMSI is designed for both families falsely accused of child abuse and professionals and paraprofessionals who work with child abuse cases. The goal is to help child protection services truly meet the needs of children and their families and to help the legal system handle these difficult cases more justly (http://evidencebasedmedicineandsocialinvestigation.org/home). I see members of the GVLNCA as providing support to EBMSI by assisting with medical record reviews, providing chronologies, locating experts and acting as a liaison between families and legal counsel. Please show your support for EBMSI by registering for the Fourth Annual Evidence-Based Medicine and Social Investigation Group Conference that will be held in Surrey from August 22 to 23, Visit the website to learn more about the GVLNCA. We wish to thank our sponsors. Copyright 2014 GVLNCA. All rights reserved. 8 GVLNCA news Spring 2014

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