Nurse Life Care Planning - Through the Ages Section 11 11 Workbook.pdfANA's Code of Ethics for Nurses with Interpretative Statements – nursing encompasses prevention of illness,

©2011, Shelene Giles. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission from the publisher.

Section 11

Legal

WORKBOOK

Nurse Life Care Planning - Through the Ages

©2011, Shelene Giles. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission from the publisher.

Nurse Life Care Planning - Through the Ages Section 11 – Legal

OBJECTIVE 1: Review the nursing process as a life care planning foundation. Discuss case studies from previous

sections and apply the nursing process to a life care plan for a spinal cord injury, traumatic brain injury, amputation, and

burns client.

OBJECTIVE 2: Define the anatomy of a law suit. Explain the role of the nurse life care planner as an expert witness.

OBJECTIVE 3: Role play the nurse life care planner as an expert witness in a deposition and trial testimony.

_______________________________________________________________________________

Agenda

Methodology

Case Studies

Spinal Cord Injury

Traumatic Brain Injury

Amputation

Burns

Anatomy of Law Suit

Consultant vs. Expert Witness

Qualifying as Expert Witness

Deposition

Trial

_______________________________________________________________________________

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©2011, Shelene Giles · [email protected] · (828) 698-9486

History of Nursing

Past

1800's - Florence Nightingale provided foundation for nursing and basis for autonomous nursing practice as distinctly

different from medicine - beginning of evidenced-based nursing practice

1893 – ‘Nightingale Pledge’ – first nursing code of ethics

1896 – American Nurses Association (ANA) created – purpose to establish & maintain code of ethics for nurses

1900's – Advanced degrees in nursing education erupted – then study of nurses and nursing education emerged (i.e,

nursing research)

During last 50 years – hospitals developed specialized nursing skills (med-surg, pediatrics, anesthesia, midwifery, ER,

mental health, etc) – nurses also began addressing public health

1960's - Nursing process broadly accepted by nurses - initially had 4 parts (assessment, planning, implementation and

evaluation)(nursing diagnosis was excluded until 1973)

1970's – Nursing evolved into profession with distinct body of knowledge, university-based education, specialized

practice, standards of practice, social contracts, and ethical codes

2001 – ANA's Code of Ethics for Nurses with Interpretative Statements

2003 – ANA's Nursing's Social Policy Statement

_______________________________________________________________________________

Present

Nation’s largest health care profession

3.1 million RNs

100+ specialty nursing associations

Largest employers are hospitals/facilities, community health & nursing homes

Future

Current trend is interest in nursing as profession

Large percentage of nurses will retire within next 10-15 years

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Definition

American Nurses Association (ANA) defines nursing as the protection, promotion, and optimization of health and

abilities, prevention of illness and injury, alleviation of suffering through the diagnosis and treatment of human response,

and advocacy in the care of individuals, families, communities, and populations. The human response includes the

response of the individual and family to actual or potential health problems. ANA notes “…Nurses are educated to be

attuned to the whole person, not just the unique presenting health problem.

While a medical diagnosis of an illness may be fairly circumscribed, the human response to a health problem may be

much more fluid and variable and may have a great effect on the individual’s ability to overcome the initial medical

problem. It is often said that physicians cure, and nurses care. In what some describe as a blend of physiology and

psychology, nurses build on their understanding of the disease and illness process to promote the restoration and

maintenance of health in their clients…”

Nursing is a key element in patient survival as well as in the maintenance, rehabilitation, and preventive aspects of

healthcare.

_______________________________________________________________________________

History of Life Care Planning

1976 – Dr. Paul Deutsch began working on development of basic tenets, methodologies & principles of life care planning

1981 – Damages in Tort Action - established guidelines for determining damages in civil litigation cases and initial

terminology/description of life care plan

1985 – A Guide to Rehabilitation (introduced life care plan terminology into healthcare/rehabilitation industry)

1996 – International Academy of Life Care Planners (IALCP) established

1996 – International Commission on Health Care Commission (ICHCC) offered CLCP certification exam

1997 – American Association of Nurse Life Care Planners (AANLCP)

1998 – Journal of Nurse Life Care Planning

1998 – CNLCP® Certification Board offered CNLCP® certification exam

1999 – 1st edition of Life Care Planning and Case Management Handbook

2000 – Role & Function Study of Life Care Planners by Southern Illinois University

2002 – Journal of Life Care Planning

2002 – Foundation of Life Care Planning Research established

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2004 – 2nd

edition of Life Care Planning and Case Management Handbook

2004 – Pediatric Life Care Planning and Case Management Handbook

2005 – IALCP affiliated with International Association of Rehabilitation Professionals (IARP)

2010 – 3rd

edition of Life Care Planning and Case Management Handbook

2010 – Role & Function Study of Life Care Planners by University of Florida

_______________________________________________________________________________

AANLCP Nurse Life Care Planning definition: The Nurse Life Care Planner utilizes the nursing process in the collection

and analysis of comprehensive client specific data in the preparation of a dynamic document. This document provides an

organized, concise plan of estimated reasonable and necessary, (and reasonably certain to be necessary), current and

future healthcare needs with the associated costs and frequencies of goods and services.

The Nurse Life Care Plan is developed for individuals who have experienced an injury or have chronic healthcare issues.

Nurse life care planners function within their individual professional scope of practice and, when applicable, incorporate

opinions arrived at collaboratively with various health care providers. The Nurse Life Care Plan is considered a flexible

document and is evaluated and updated as needed.

_______________________________________________________________________________

IALCP/IARP Life Care Planning definition: The Life Care Plan is a dynamic document based upon published standards

of practice, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current

and future needs with associated cost for individuals who have experienced catastrophic injury or have chronic health care

needs.

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Certifications

Certified Nurse Life Care Planner (CNLCP®) - governed by CNLCP® Certification Board

CNLCP® criteria

1. Licensed Registered Nurse for at least 5 years

2. 2 years of paid full time employment in life care planning and/or case management experience

3. Minimum of 120 continuing nursing education units in life care planning and/or case management

CNLCP® certification exam

CNLCP® renewal

1. Every 5 years

2. 60 continuing education units

_______________________________________________________________________________

Certified Life Care Planner (CLCP) certification - governed by International Commission on Health Care Certification

(ICHCC)

CLCP criteria

1. Qualified Health Care Professional - entry level academic degree or certificate/diploma within profession

2. 120 hours training in life care planning or areas that can be applied to life care planning, 16 hours of training

specific to basic orientation, methodology, and standards of practice in life care planning within 12 months of

application, and 120 hours can be obtained through online training/educational programs, onsite presentations,

and conferences

3. Life care planning training/program must include:

a. Life care planning methodology (16 credit hours)

b. Catastrophic case management

c. Vocational rehabilitation

d. Legal component with onsite testimony/trial experience

e. Preparation of life care plan and review by approved LCP program or ICHCC

4. Minimum of 3 years field experience within 5 years preceding application

5. Must also meet one of the following:

a. Submit sample life care plan

b. Supervision of 1 year with CLCP

c. Graduation from accredited training program which includes practicum/internship and development of

independent life care plan and critique by CLCP faculty member

CLCP certification exam

CLCP renewal

1. Every 5 years

2. 80 continuing education units

3. 8 of 80 continuing education units specific to ethics

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_______________________________________________________________________________

Associations

American Association of Nurse Life Care Planners (AANLCP)

International Academy of Life Care Planners (IALCP) / International Association of Rehabilitation Professionals (IARP)

American Association of Legal Nurse Consultants (AALNC)

Association of Rehabilitation Nurses (ARN)

Case Management Society of America (CMSA)

_______________________________________________________________________________

Your specialty area & certification board also have standards of practice and standards of professional performance

(AANLCP, CNLCP® CB, IARP/IACLP, ICHCC)

_______________________________________________________________________________

Comparison of methodologies

Nursing Process Life Care Planning Process

Assessment Data collection includes assessment

Nursing diagnosis Understands primary and secondary diagnosis

Outcome identification Outcome identification

Planning Planning/research

Implementation Consulting and possible implementation

Evaluation Monitors/evaluates/collaborates

_______________________________________________________________________________

You Methodology = Nursing Process

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Critical thinking

Critical thinking is a process

Clinical judgment is result of a process (forming an opinion or making a decision)

Critical thinking = clinical judgment

Most important and challenging aspect of becoming a nurse – developing clinical judgment/clinical reasoning skills

Clinical judgment (critical thinking) entails knowing what to look for, how to recognize when a patient’s status is

changing, and what to do about it

Critical thinking and clinical judgment in nursing is guided by professional code of ethics, such as ANA Standards of

Practice and AANLCP Standards of Practice

_______________________________________________________________________________

Evidence Based Practice

Nursing care has shifted from tradition to evidenced-based approaches

EBP requires knowledge be transformed by systematic study of how evidence from research can best be applied

in practice

Example – Clinical Practice Guidelines (CPG) – recommendations of how to manage care in specific

diseases/problems/situations

CPG are developed for specific use and are designed by a collaborative panel of clinical and scientific experts

_______________________________________________________________________________

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Nursing Process

Nursing process forms foundation of nurse’s decision making

Nursing process – composed of assessment, diagnosis, outcomes identification, planning, implementation & evaluation –

serves as foundation of decision making & evidence-based practice

YOUR METHODOLOGY (doesn’t matter which nursing specialty) = NURSING PROCESS

Nursing Process (as described by ANA)

1. Assessment

Collects comprehensive data pertinent to patient’s health or situation

2. Diagnosis

NANDA defines a nursing diagnosis as a clinical judgment about an individual, family, or community

response to actual or potential health problems and life processes. Nursing diagnoses provide the basis for

selection of nursing interventions to achieve outcomes for which the nurse is accountable.

Nurses analyze assessment data to determine nursing diagnoses or issues

Medical diagnoses focus on disease process

Nursing diagnoses focus on human response to stimuli

3. Outcomes Identification

Identifies expected outcomes for plan individualized to patient or situation

4. Planning

Develops plan that prescribes strategies and alternatives to attain expected outcomes

Clarify expected outcomes, set priorities, determine interventions to detect/prevent/manage health problems and risk

factors, promote optimum function/independence/sense of well-being, achieve expected outcomes safely and efficiently

5. Implementing

Implements identified plan

Nursing care implemented according to care plan, puts plan into action, performs interventions (nursing actions),

reassess patient to determine end result/outcomes, changes as needed, chart nursing actions and patient’s responses

6. Evaluation

Evaluates progress toward attainment of outcomes

_______________________________________________________________________________

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Critical thinking + nursing process = ANA Standards of Practice (foundation of nurse’s decision making)

Nursing process = tool

Critical thinking = how to use the tool

Evidence based = Nursing Practice Act

ANA's Code of Ethics for Nurses with Interpretative Statements – nursing encompasses prevention of illness, alleviation of

suffering, and protection, promotion, and restoration of health in care of individuals, families, groups, and communities

Nurses function in role of direct care activities, delegation, teaching, research & administration

_______________________________________________________________________________

ANA has developed generic standards that apply to practice of all professional nurses

Specialty nursing organizations stem from these practices and develop their own individual practice statements, and

standards of practice specific to specialty practices

ANA's Standards of Practice describe a competent level of nursing care as demonstrated by critical thinking model known

as nursing process

Nursing Practice Act defines scope of nursing practice in specific state of licensure

Based on state RN licensure - some state licensures do not have Nursing Practice Act, rely on ANA

_______________________________________________________________________________

Nurse Life Care Planning (NLCP) = applies nursing process to life care planning

Critical thinking + nursing process + life care planning = NURSE LIFE CARE PLANNING

_______________________________________________________________________________

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Developing the Life Care Plan

ASSESSMENT

Referral

Address qualifications

Relevant information

Role (consultant or expert witness)

Requested service

Demographics

Deadlines

Conflicts of interest

Fees/Retainer Services Agreement

Forward to referral source - referral letter/services retainer agreement/fee schedule/retainer

fee/CV/HIPAA release (purpose to clarify service & business practice in writing & show establishment of

professional relationship)

Requested information - complete set of medical records, medical bills, and supporting documentation

(deposition, pictures, videos, and school records) (confirm current demographic info - don't rely on medical

records)

_______________________________________________________________________________

File set up

Referral sheet

Flow sheet

Notes

Print/organize medical records/bills/supporting documentation

Schedule Life Care Plan Assessment

Client contact/introduction

Travel arrangements

Confirm LCPA

Prepare for LCPA

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Records review

Begin LCP documentation

Additional requests (by NLCP or referral source)

Develop Medical Timeline

Carefully review medical records for indirect recommendations to include in LCP, example – complications, pattern of

care (reference MD & date of dictation for LCP recommendation)

Medical Timeline - focus on SOAP note (subjective, objective, assessment, plan) - leave out details not relevant to current

status of case (lab values, vital signs, medication dosages, negative diagnostic studies), leave out NLCP opinions, focus

solely on regurgitating/paraphrasing medical records, not all medicals need to be in Medical Timeline, hit highlights that

relate to outcomes & NLCP recommendations, watch slang/abbreviations, spell out initially - then abbreviate

_______________________________________________________________________________

Life Care Plan Assessment - allow for 3-5 hours, offer to pay for lunch - if eating out/ordering in

Review records - prior to LCP assessment

Nurse Life Care Plan sample

HIPAA release

LCPA form

Home assessment

Using standardized assessment form - shows consistency/methodology

_______________________________________________________________________________

NURSING DIAGNOSIS

Clinical judgment and evidence based nursing is foundation for nursing diagnosis

Provides basis for selection of nursing interventions to achieve outcomes for which the nurse is accountable

_______________________________________________________________________________

OUTCOME IDENTIFICATION

Determining expected outcomes & interventions by predicted responses

Interventions should be designed to - detect, prevent & manage health problems; promote optimum

function & wellness, and achieve desired outcomes safely and efficiently

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Collaboration

Treating providers

Independent Medical Examination (IME)

Rely on vendors/colleagues

_______________________________________________________________________________

Medical research

Text books

Journals

Associations

Databases/Search engines

Websites

Clinical guidelines

Include probable complications and LCP recommendations to reduce/avoid secondary diagnoses

Outcome identification provides a continuity of care

_______________________________________________________________________________

Outcome Identification & Planning are most time consuming of LCP process - research & cost analysis

PLANNING

Goal is to make individual as functional and independent as possible

This is not only cost effective, but improves the quality of life

Recommendations are to prevent/minimize future complications

Planning includes

LCP Recommendations

Costs of care

Writing the Life Care Plan

_______________________________________________________________________________

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Recommendations in Life Care Plan

Medical

Medical care

Surgeries/Procedures

Hospitalizations

Therapeutic Evaluations/Modalities

Diagnostic Studies

Lab Work

Medications

Medical Supplies

Durable Medical Equipment/Aids for Independent Function (HANDOUT - Empirical Validation of

Medical Equipment Replacement Values in Life Care Plans

Orthoses/Prosthesis

Mobility

Home Care/Living Arrangements

Respite care

Home Health Care (skilled vs. unskilled)

Facility Care

_______________________________________________________________________________

Medical necessity

No universal standard definition, medical necessity mentioned in Social Security Act of 1965

Medical necessity - reasonable and necessary for the diagnosis or treatment of illness or injury

Prevent onset or worsening of illness/condition/disability

Establish medical diagnosis

Provide palliative, curative or restorative treatment for physical and/or mental health condition

Assist individual to achieve or maintain maximum functional capacity in performing daily activities -taking into

account both functional capacity of individual & those functional capacities that are appropriate for individuals

of same age

_______________________________________________________________________________

Non-medical

Home modifications

Transportation

Educational/Vocational

Other

_______________________________________________________________________________

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Costs

Geographical location

Records review and actual providers

Local providers

Research

Coding

Costing

Collateral resources

(HANDOUT - What a Forensic Economist Needs from a Life Care Planning Expert)

_______________________________________________________________________________

Why medical coding in LCP?

Offers systematic process to costing LCP

Developed by nationally known associations

Developed/implemented by federal government

Recognized/implemented by insurance carriers

Millions of providers participated in cost research

Peer reviewed and updated annually

_______________________________________________________________________________

Calculation of LCP

Life expectancy

Annualized

Reduced life expectancy/rated age

Writing the Life Care Plan

Template

Computer Software

_______________________________________________________________________________

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IMPLEMENTATION

Case management

Client/family education

EVALUATION

Follow up

Life Care Plan review/critique

Life Care Plan revision

Settlement mediation

Medicare Set-Aside Allocation

Structured settlement

Special Needs Trust

Case management

_______________________________________________________________________________

Finalizing the LCP report

Tracking time/invoicing?

Medicals/relevant medicals provided/reviewed/updated?

Depositions provided/reviewed?

Photographs or day-in-the-life video provided/reviewed?

Medical timeline/narrative?

Does LCP follow published standards?

Foundation established?

Collaboration?

Medical research?

Stayed within area of expertise?

Complications identified?

Preventative/rehabilitation recommendations to reduce complications?

Unrelated recommendations?

Geographical costs?

Overlapping recommendations?

Luxury/frivolous recommendations? - swimming pool, hot tub, massage - reduces credibility with jury

Options for home care/living arrangements?

Offsets (food, clothing, vehicle)?

Calculations?

Aesthetics of report (professional look/easy to read/typographical or date errors)?

_______________________________________________________________________________

CASE STUDIES

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_______________________________________________________________________________

Anatomy of law suit

Sources of law

Constitutional law - supreme law of land and takes precedent over state and local law

Statutory law - laws enacted by legislature (federal, state, and local legislation)

Administrative law - administrative agencies under executive branches of government (state boards of nursing)

Common law - based on judicial decisions and previous rulings in court cases

_______________________________________________________________________________

Types of law

Criminal law - offense against authority of state, public wrong (against society) vs. private wrong (against individual)

Contract law - legal obligation resulting from parties agreement

Civil law - private rights & liabilities, resolution involves monetary compensation

Tort - civil law that encompasses negligence, personal injury, and medical malpractice claims

- Breach of duty/wrongful act resulting in injury to person/property

- Burden of proof in tort cases is "preponderance of evidence" (> than 50%)

- Causation

- Damages

_______________________________________________________________________________

State court - injury/accident occurred, state of residence

Federal court - federal agencies/government, interstate companies

_______________________________________________________________________________

Legal Process

Investigation

Statute of limitations - depends on state rules, children - age 18

Plaintiff attorneys files original complaint/petition/pleading – begins civil action

Defense attorney files original answer to complaint

Discovery – disclosure of information

Interrogatories – written questions/answers between plaintiff & defense, not to witnesses or experts

Motions and Requests

Depositions - out of court testimony in writing by court reporter, can be used for discovery or in place of court

appearance - no difference in process

Subpoena duces tecum – notice/order for witness to appear & bring specific documents/records

Work product – internal documentation

_______________________________________________________________________________

Page 18 of 35


Litigation

Settlement – negotiation in writing/verbal

Mediation – judge can order before scheduling trial, nonbinding dispute resolution involving neutral third party as

mediator, day in life video

Arbitration – judge can order, dispute resolution involving neutral third party and decision of arbitrator is binding, no

court proceedings, day in life video

_______________________________________________________________________________

Trial

Jury selection – voir dire

Opening statements – plaintiff/defense

Plaintiff’s introduction of evidence – direct exam/cross exam

Defendant’s introduction of evidence – direct exam/cross exam

Closing statements – plaintiff/defense

Jury instructions/charge

Jury deliberations

Verdict

Not guilty

Guilty – assess percent of liability & damages

Appeal by appellate court (payment to plaintiff on hold)

Only 2% of lawsuits go to trial

90% of trials involve personal injury cases

73% of trials decided by jury

_______________________________________________________________________________

Why do attorneys hire expert witnesses?

Due to legal burden of proof - need expert's knowledge and expertise to assist jury to understand certain facts

Experts offer conclusions/opinions about "fact patterns" presented in case

_______________________________________________________________________________

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Roles in litigation

Neutral/fact witness – presents information

Consulting expert – protected & not involved in litigation process, not revealed to opposing side, no testimony

Expert witness (causation/liability and damages) – revealed, testimony, subject to litigation process, renders opinions

Damages experts - medical, life care planners, vocational, life expectancy, and economist

_______________________________________________________________________________

Educator

Advocate

Goal of LCP - restore client & family to level of function they would have before accident

LCP addresses needs for quality of life, independent functioning & restore lifestyle

_______________________________________________________________________________

Qualifying as Expert Witness

Federal Rules of Civil Procedure (Rule 26(a)(2)(B)) (HANDOUT - Rule 26)

Disclosure of expert witness

- should be accompanied by written/signed report

- report shall contain complete statement of all opinions to be expressed and basis and reasons thereof

- data and other information considered by witness in forming opinions

- any exhibits to be used as a summary of or support for opinions

- qualifications of witness, including list of all publications authored by the witness within the preceding 10 years

- compensation to be paid for study and testimony

- list of any other cases in which witness has testified as expert at trial or by deposition within preceding 4 years

_______________________________________________________________________________

Federal Rules of Evidence (Article VII - Opinions & Expert Testimony, Rules 701-706) (HANDOUT - Rules 701-706)

Rule 702 - “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may

testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data; (2) the

testimony is the product of reliable principles & methods; and (3) the witness has applied the principles & methods

reliably to the facts of the case"

_______________________________________________________________________________

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(1) Testimony based upon sufficient facts or data

Assessment (review of medicals, client interview)

Nursing Diagnosis (actual & potential)

Outcomes Identification (collaboration, medical research)

Planning

(2) Testimony is product of reliable principles & methods (methodology - nursing process)

(3) Witness applied principles & methods reliably to facts of case (methodology - nursing process)

Testimony must be composed of scientific/technical/specialized knowledge, assist jury in understanding evidence, and

witness must be qualified to render opinion

Qualify expert witness based on knowledge/skill/training

CV

Education (nursing process) (ANA's Nursing Scope & Standards of Practice)

Licensure/certifications (Nursing Practice Act)

Experience/employment

Training (conferences/seminars, participation)

Professional organizations

Publications

Teaching

_______________________________________________________________________________

Federal Rule (403) - Although relevant evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudices, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence

_______________________________________________________________________________

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) - Frye rule determines if expert is qualified to offer opinion based

on whether the scientific method or theory of the testimony has reached the level of "general acceptance" in the scientific

community - do opinions have scientific legitimacy

_______________________________________________________________________________

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Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) - Daubert sets standards for

admissibility in court as set forth by US Supreme Court, judge should act as gatekeeper and become responsible for

determining whether expert testimony should be admitted into evidence, questions admissibility of opinion &

qualifications of expert, "general acceptance" of scientific theory no longer required as long as the reasoning or

methodology underlying the testimony is scientifically valid & applicable to facts at issue, 4 factors to consider when

determining admissibility of testimony

_______________________________________________________________________________

1. Theory can and has been tested

2. Theory has been subjected to peer review and publication*

3. Technique has a known or potential error rate

4. Theory or technique has gained general acceptance as valid by relevant community*

Texas Supreme Court added 2 more factors

5. Technique relies upon subjective interpretation of expert

6. Non-judicial uses which have been made of the theory or technique

* applies to LCP - educational courses/conferences/peer reviewed publications, journals, and books

theory - LCP process

Daubert motion/hearing

90% of Daubert motions based on experience/training & no literature – LCP should have been based on standards

(nursing process) & literature/guidelines

Daubert Tracker - search LCP (50+ expert challenges found on Daubert tracker specific to LCP)

(HANDOUT - Medical Foundation - Changing the Structure)

_______________________________________________________________________________

Is the LCP relevant?

Is there a connection between evidence to be admitted & issue at hand/expert's opinion?

- medical records

- medical/therapeutic consultations

- expert consultations (life care plan assessment)

_______________________________________________________________________________

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Is the LCP reliable? (HANDOUT - The Efficacy of Professional Clinical Judgment: Developing Expert Testimony in

Cases Involving Vocational Rehabilitation and Care Planning Issues)

Is evidence grounded in established evidentiary methods/procedures accepted within profession?

- LCP is evidenced based practice

- LCP subjected to traditional research

- LCP is tool used by professionals trained (nursing, rehabilitation counseling, psychology, social work,

medicine, and other health related professions) in applying published techniques (nursing process, case management/

rehabilitation model) to benefit client

- LCP is process which case managers implement/evaluate recommendations in LCP

- LCP considers reasonable and necessary goods and services that are:

- dictated by onset of disability

- reflective of goals and desires of patient/family

- dictated by realities of geographic area in which client resides

- LCP has published definition

- LCP considers complexity of disability which necessitates a methodology to be applied by

trained/knowledgeable professions to include: disability specific issues, client specific issues, family specific issues, phase

changes as age and disability combine, and technological changes over time

_______________________________________________________________________________

Has the LCP process been tested?

Reliability & Validity study (HANDOUT - A Quantitative Reappraisal of a Qualitative Survey to Assess

Reliability and Validity of the Life Care Planning Process)

Retrospective surveys

Standards of Practice

Foundation for Life Care Planning Research

Basis for LCP recommendations must be founded in current research, practice guidelines, and established

standards within medicine/nursing/rehabilitation/health related professions

_______________________________________________________________________________

Has the LCP process been subjected to peer review and publication? (theory is peer reviewed, not individual LCP)

Nursing process peer reviewed by ANA & state board of nursing organizations

Associations (IARP/IALCP, AANLCP, CMSA, ARN, AALNC, ICHCC)

(Council on Rehabilitation Education/CORE - new standards for certification of graduate programs, includes LCP)

LCP Summits

Publications

Texts

Journals

_______________________________________________________________________________

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Does the LCP process have a known error rate? (no) refer to Reliability & Validity study (HANDOUT - Reliability of

Life Care Plans: A Comparison of Original and Updated Plans)

Potential rate of error based entirely on LCP's knowledge/skill as applied to LCP

Professional differences of opinion may be reflected in level of access to information and clinical backgrounds of LCP

_______________________________________________________________________________

Has LCP process been accepted within rehabilitation/nursing community?

1981 - LCP in litigation first appeared in literature

93+ universities in US offer graduate programs in rehabilitation counseling - many include LCP courses

Nursing schools - addressing nursing opportunities outside of hospital (legal setting)

Associations recognizing LCP as specialty (AANLCP, IARP/IALCP, CMSA, ARN, AALNC)

Recognized educational programs providing LCP training

Related organizations offering CEUs in LCP

_______________________________________________________________________________

Are there non-judicial applications of the LCP process?

Case management (health insurance, long term disability, short term disability, workers' compensation, geriatric)

Special needs trust

Medicare Set-Asides

Inpatient acute/post acute rehabilitation programs

Residential/long term post acute rehabilitation programs

Discharge planning

Independent/Assisted living programs

Regional rehabilitation centers - have in-house LCP (Shepherd, Emory, Chicago Institute of Rehab, Scottish Rite,

Florida Institute of Neurological Rehab, Timber Ridge Rehab Center)

_______________________________________________________________________________

Kumho Tire Co. v. Carmichael, 119 S. Ct 1167 (1999) - Gatekeeper function applies to all types of expert witnesses,

not just scientific/technical knowledge, Daubert factors do not always apply, testimony must be relevant to facts of case,

judge has discretion and leeway in admitting testimony, expands Daubert when expert testify outside of pure science,

includes life care planners, emphasized methods utilized by expert to arrive at opinions/conclusions must be based on

literature or proven testing, not just expert's opinion

_______________________________________________________________________________

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) - Judges have discretion regarding what testimony to allow or not

allow under admissibility rules, 'abuse of discretion rule'

_______________________________________________________________________________

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Court Folder - IMPORTANT DOCUMENTS

CV

Deposition/trial log (past 4 years)

Publications (past 10 years)

Fee schedule

_______________________________________________________________________________

Degrees

State licensure/standards of practice/scope of practice/code of ethics (Nurse Practice Act)

Certification standards of practice/scope of practice/code of ethics

Association standards of practice/scope of practice/code of ethics

Role & Function Study (2000 & 2010)

Journal of Life Care Planning LCP Survey

_______________________________________________________________________________

Deposition (HANDOUT - Effective Preparation of the Expert Witness for Deposition)

Purpose of deposition - know qualifications, evaluate credibility, explore methodology, learn your opinions, probe for

bias/inconsistencies, intimidate, and lock down expert

PREPARATION, PREPARATION, PREPARATION

Opposing strategy

Impeach credibility of witness - you are not believable

Undermine credibility of your source of info - who did you talk to, how many times

Try to make their case through you (expert witness)

Make plaintiff look greedy or defense is denying case

_______________________________________________________________________________

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Scheduling deposition

Fee schedule - prepayment & subsequent

Date/time

Office vs. offsite location

Deposition notice/subpoena duces tecum

Organize file - expert's file is discoverable - beware of preliminary opinions, do not highlight in file

Subpoena

Referral sheet

Correspondence (mail & electronic)

Medical records/bills/supporting documentation

Life Care Plan/enclosures

Notes

Research

Photographs/video

Invoice

Review file

Preparation with attorney

Conference call

Onsite meeting

Review file

Strengths & weaknesses

Confirm deposition date/time/location

_______________________________________________________________________________

Testimony

What to bring to deposition?

Subpoena/file/CV

Ask attorney

Appearance

Arrival

Breaks

Ending deposition - read/sign deposition transcript

_______________________________________________________________________________

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Questions

Qualifications

Education

Licensure - requirements/exam/renewal

Certification - governing body/requirements/exam/renewal/continuing education

Employment - relevant to life care planning, reasons for leaving

Continuing education

Professional affiliation/associations

Community organizations

Presentations - for marketing & education

Publications - peer reviewed & marketing

Awards, honors, or peer recognition

Foundation

LCP educational course

LCP process - for published methodology - refer to educational courses/peer reviewed publications in LCP/NLCP

journals/books/articles

Nursing process - refer to Nursing Practice Act, ANA, AANLCP

Case related

Who, what, why, where, when, and how?

Pre-existing/unrelated medical

Collaboration

Complications

Frequency/replacement

Costs - geographical location (national database with zip code modifier, local vendors), median (middle) cost vs.

highest/lowest cost, costs are fair/reasonable/necessary, over-the-counter items vs. prescription items, brand name vs.

generic name, do not include collateral resources - unless requested

High dollar items - expect intense questioning on high dollar items or biggest areas of $$ discrepancy

Life expectancy - outside of your scope of practice, defer to other expert

Discounted/present day value

_______________________________________________________________________________

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Testimony tips for deposition (HANDOUT - The 10 Biggest Mistakes Life Care Planners Make During Depositions)

Sit up straight

Look at attorney asking question

Maintain eye contact

Maintain composure

Be truthful (intellectual honesty)

Listen carefully to question

Ask for clarification/rephrasing

Wait for question

Pause/take breath

Concentrate on answer before speaking

Answer only question asked

Respond calmly/slowly/precisely

Give short answers

Be objective

'I don't know' or 'I don't remember'

Nothing is authoritative

Do not mention collateral resources

Correct mistake

Documents

Concede to obvious/irrefutable point

Avoid slang expressions (uh-huh, yep)

_______________________________________________________________________________

Snares (HANDOUT - Impeachment of the Expert Witness)

Qualifications

Authoritative treatises

Collateral resources

Open-ended questions

Response cut short

Yes or no questions

'Wouldn't you agree...'

'Isn't it true...'

'Isn't it a fact...' or 'Isn't it fair to say...'

Hypothetical questions

Compound questions

Double negatives

'Too early to tell' technique

'Two schools of thought' technique

'Are you hoping...'

'I don't know, but...'

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Stay within your authority/area of expertise

Prior inconsistent statements/changing your opinion (impeachment)

Are there any opinions that you plan to offer at trial of this matter that you haven't expressed here today?

Attacking Expert Witness:

1. Qualifications

2. Financial bias

3. Purpose of retention

4. Basis of opinions

5. Base costing & duplications

_______________________________________________________________________________

Trial

PREPARATION, PREPARATION, PREPARATION

_______________________________________________________________________________

Review file

Update LCP?

Review deposition

Prepare with attorney

Testimony

What to bring to trial?

file/CV

Ask attorney

Appearance

Arrival

Breaks

_______________________________________________________________________________

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Testimony

Swearing in

Direct examination - role is to educate, review education/licensures/certifications/experience, explain purpose of

plan, explain recommendations in detail/use analogies, explain what will happen if recommendations not provided,

explain complications, recommend/explain role of Case Manager

Cross examination - goal is to undermine expert's opinions/attack credibility

Re-direct examination - provides opportunity to explain, offers last words on subject, be brief/focused

Objections

Asked and answered

Assumes facts not in evidence

Beyond the scope

Calls for speculation

Compound question

Hearsay

Non-responsive answer

Ambiguous, confusing, misleading, vague, unintelligible

Wait for judge's response - sustained vs. over ruled

Using your file

Demonstrative evidence

Testimony concludes - do not leave stand until directed by judge

_______________________________________________________________________________

Believe in your own opinions

Testimony tips for trial

Sit up straight

Adjust microphone

Look at attorney asking question

Look at jury when answering

Maintain eye contact

Maintain composure

Be truthful (intellectual honesty)

Listen carefully to question

Ask for clarification/rephrasing

Wait for question

Pause/take breath

Concentrate on answer before speaking

Answer only question asked

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Respond calmly/slowly/precisely

Use analogies/examples

Use number references for explanations

Give your opinion

1) Question

2) Opinion

3) Facts

Be objective

'I don't know' or 'I don't remember'

Do not mention collateral resources

Correct mistake

Documents

Concede to obvious/irrefutable point

Avoid slang expressions (uh-huh, yep)

Do not talk with jurors

_______________________________________________________________________________

Cross examination tips

Do not change demeanor

Inappropriate behavior

Smile

Concede when necessary

Stay within your authority/area of expertise

Remember snares

_______________________________________________________________________________

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What matters?

Knowledge & expertise

Objectivity & Neutrality

Ability to converse your knowledge in a manner that others will understand

Humility

What is important to jurors?

Credentials

Direct experience

Knowledge about case

Personality

What is not important to jurors?

Fees

Anything not related to case

Juror turn-offs

Bad teacher

Advocating for position

Overly aggressive, arrogant, or defensive behavior

Wasting juror time

Capturing the jury

Visual aids

Analogies

Eye contact

Dress

_______________________________________________________________________________

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Responses...

The Life Care Plan is specific to the individual and is intended to follow the client throughout his/her lifetime to ensure

funds will be available to properly care for the client.

Though the cost of these complications cannot be predicted, recommendations have been provided in the following tables

to help prevent/lessen these complications. The cost of treating these complications are not included in the Life Care Plan

tables.

_______________________________________________________________________________

My clinical judgment includes formal training , continuing education, experience from like cases, and adhering to the

standards of practice for my licensure/certification.

My opinions (LCP recommendations) are based on a review of the medicals, client/family assessment, collaboration with

healthcare providers, and research.

_______________________________________________________________________________

Life Care Planners have 'independent knowledge' to provide opinions. This independent knowledge is based on my

qualifications (education, licensure/certification, and experience). This independent knowledge is confirmed through

conducting literature research, collaboration with health care providers, contacting vendors, and utilizing databases.

Recommendations are based on a reasonable degree of certainty in an effort to manage symptoms, reduce complications/

secondary diagnosis, maintain functioning, and optimize independence throughout lifespan.

_______________________________________________________________________________

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DO DO NOT

Clinical reasoning/judgment Assumption

Opinion Educated guess

Recommendation

Reasonable degree of nursing certainty Reasonable degree of medical certainty (not MD)

Recommend/project Prescribe/order

Objective third party Hired gun

LCP is proactive Reactive

Probability Possibility/potential

Well respected Authoritative

Educator/Teacher Advocate

Reimbursed for time Reimbursed for opinions

Fee for service Contingency fees (based on outcome of case)

Avoid absolute words

Avoid - typically, normally, usually, rarely, generally, probably, possibly

Avoid weak speculative words - ‘maybe, guess so, think so’

Is your LCP speculation? No

(HANDOUT - Rational Life Care Planning) (HANDOUT - An Irreverent Look At Life Care Planners)

_______________________________________________________________________________

Page 34 of 35


Mock Deposition - NOTE PAGE

Page 35 of 35


Mock Trial - NOTE PAGE