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                 Resources for Legal Nurse Consultants

PRINCIPLES OF RIGHT CONDUCT:

Ethics and Your Everyday Business

Betty Joos, MEd, BSN, RN, Informed Decisions, Inc. Atlanta AALNC B March 16, 2004

This is the handout from a talk Betty did at the Atlanta AALNC Chapter

OBJECTIVES: Following this presentation, participants should be able to:

I. Recognize the impact of one=s personal ethics in business.

II. State the importance of knowing the ethical codes particularly associated with nurse consulting.

III Identify at least three issues of ethics from the American Bar Association=s Model Code that has an impact on legal nurse consulting.

IV. Identify at least one method of working through an issue that has ethical implications.

Ethics: (morals) Principles of right conduct; the discipline dealing with what is good and bad and with moral duty and obligation; the principles of conduct governing an individual or a group, especially a professional group. [Two different dictionaries]

Personal Ethics/character: (From the Greek, ethos) What we are when no one is around to see usB Seen in how we treat others and how we take responsibility for our actions. [BJ]

The AALNC Code of Ethics and Conduct is found on the AALNC.org website and in Legal Nurse Consulting Principles and Practices, 2^nd edition, p. 229.

The ANA Code of Ethics for Nurses is also found in LNC P & P, 2^nd edition, p. 238.

Chapters 10 and 46 in Legal Nurse Consulting Principles and Practices, 2^nd edition, are about ethics for the LNC.

Facts related to ethics of the legal professional:

21822. Lawyers are governed by a code of ethics determined usually by state bar associations or by state statutes. The courts are often empowered to enforce the code of ethics as well as the state bar associations. In many states the Model Code of the ABA has been adopted.

21823. Lawyers who fail to follow the prescribed code of conduct set out in their state risk being Aadmonished, reprimanded, suspended, or disbarred@ by the courts.

21824. Lawyers can be held responsible for the unethical behavior or any member of their teamB including LNCs.

21825. Unethical behavior by legal nurse consultants can result in loss of integrity, loss of clients, loss of respect of cohorts, causing disciplinary action for the lawyer, and the LNC possibly being named in a civil lawsuitBor even criminal prosecution.

Model Code excerpts discussed today:

Canon 3 states that AA Lawyer Should Assist in Preventing the Unauthorized Practice of Law.

Offering medical reviews for the lay public to state whether or not they have sufficient cause to take a case to an attorney can be construed as Apracticing law@ Bdetermining whether a case should be filed is a legal issue.

In regard to fees, this Canon also states that the Alawyer may not share legal fees with a non-lawyer.@ Thus, no contingency fees, since that would be sharing the lawyer=s fees.

Canon 4: A Lawyer Shall Preserve the Confidences and Secrets of a Client

Confidentiality issues include stating the case in potentially recognizable form either in general conversation, on the Internet, or through other discussant means.

Even within a law office, cases should not be discussed indiscriminately.

The lawyer=s ethical duty of confidentiality is extended to include his legal teamBeven the contract LNC. If they betray confidences, the lawyer pays the consequences (but so will the LNC eventually).

This includes the work product rule. Even the inadvertent discovery of the Aother side=s@ work product is protected from being disclosed.

Canon 5: A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client

Conflict of interest falls under this Canon. The LNC should develop awareness of any personal knowledge or issues, family issues, business involvement, or other cases or work done which might be a conflict of interest. Some conflicts are obvious to all, while others are more difficult to determine, but each situation is specific to the issues and must be considered on an individual basis.

Canon 7: A Lawyer Should Represent a Client Zealously Within the Bounds of the Law

While the lawyer is charged with representing a client zealously under the law, the LNC is charged with providing services to all without prejudice and with objectivity and integrity.

Another issue under this Canon is that a lawyer Ashall not handle a legal matter which he knows, or should know, that he is not competent to handle....@ This can be extended to the LNC who accepts a case as an EXPERT WITNESS and for which s/he is does not have the clinical expertise to expound on the SOC within that specialty.

EXAMPLES OF ETHICAL SITUATIONS:

1. A plaintiff=s attorney wanted an LNC to write and sign an affidavit on a situation that involved some nursing issues, but essentially was a physician liability, Ajust to see if he could >scare the hospital= into offering a settlement.@ The LNC stated, Athis is the only time in my 5 years of practice that I have used the exact phrase >I'm sorry but I cannot be a plaintiff's whore.= This was only after he had badgered me about doing it for the 3rd time. I explained to him that when I sit down for a deposition, I have to believe in every word I say, and I could not, in good conscience sign an affidavit against nurses for what I believed was ultimately a physician's responsibility.@

2. Working in the Boston area for eight years, as both a consultant and occasional nursing expert, for both plaintiff and defense, an LNC worked "behinds the scenes" as consultant on a case for a plaintiff firm and also located their nursing expert.

After the case was filed, she received a call from an LNC at a defense firm for whom she had previously reviewed cases as an independent contractor. The firm LNC began describing a case, wanting the LNC to review it to be the nurse expert. After a few minutes, the LNC independent realized it was the case she had done for the plaintiff. She says of the situation: AI was trying to think of a way to stop her from revealing more without telling her that I was involved in the other side. I interrupted her and told her I was "too busy" or >not right= for the case. I did not allow her to tell me anymore. I suggested another nurse expert and gave her the contact info.@

The independent LNC kept the information confidential, never telling the plaintiff client about the conversation and stated that, Afortunately, nothing of importance, such as strategies or other experts was revealed. It was an eye opener to me as to what a small world it can be and that we must be ethical and careful in our dealings or it can come back to bite you.@

3. An example involving billing practices was told by another LNC. A legal assistant told her (per the attorney=s request) to invoice services for one plaintiff, under another plaintiff@s name. (They had just received a settlement, and her payment would have been taken from funds that were to go directly to the second plaintiff.) The attorney would have been reimbursed for her expenses on a case he had decided not to pursue. The LNC states, AI told the legal assistant that I could not do that, and sent my usual invoice.@

4. Another LNC reports that she was asked by an attorney to add points to a written report after she brought them up in their case conference. She agreed. AHe then took the written report, crossed out sections that he wanted me to leave out, and wrote in a statement that he wanted me to add that would have essentially changed my opinion. (I was floored!)

It was so unexpected, all I could think to say, was that I would do additional research, and if I could come up with any authoritative published reports that would support his side, I would include it in my report.@ After additional research, her opinion was unchanged, and she sent her report with no deletions or changes..

She added that the attorney always requested e-mail reports along with printed copies. She still had concerns that he couldBand mightBtake the electronic reports that she had done in MSWord and change them to suit himself.

How to work throughBand resolveBethical issues

1. Define the problem with specificity

AWho@ and Awhat@ was involved and how did the situation occur?

Who will be affected by the outcome?

2. Once defined, assess if it is legal and then how is ethics involved?

Is there a Aclear@ right and wrong or is it a Aright@ vs. a Aright@ with one more so?

3. What ethical codes are involved?

Assess personal ethics as well as any professional codes involved

4. Identify alternative decisions/actions with anticipated outcomes for each.

What is the WORST that can happen? What is the BEST that can happen?

What can be realistically expected to happen?

Is the decision/action FAIR to all involved?

Will this decision/action Acome back to haunt me@?

Would I be willing to share this decision with my family, friends, cohorts?

Could I defend this decision to Dr. Phil?

5. DECIDE on the most appropriate alternative and ACT on the decision.

6. Assess the outcome and use the experience to learn and grow.