Consulting vs. testifying experts: What’s the difference, and do you really need both?

U.S. companies spent $22.8 billion on litigation in 2020, according to Statista Research and Analysis. A sizable portion of those dollars came from medical cases, including lawsuits for malpractice, personal injury, product liability, workers’ compensation and others. So it’s no surprise that companies are attempting to rein in the high costs of legal fees and expenses. Attorneys, claims adjusters, insurers, senior living operators, and general counsel for hospitals and health systems are feeling the pressure to tighten their belts and find new ways to litigate medical cases or even avoid trial altogether, reducing their overall legal expense.

One simple yet effective way to manage litigation costs is through the use of legal nurses as “consulting” experts in medical-legal claims. Both legal nurse consultants and testifying medical experts can be invaluable to a legal team, but each has a different role to play in the litigation process—and arguably, both may not be needed to settle the matter at hand, resulting in total claim savings. As the clinical member of the legal team, tenured nurse consultants bring invaluable medical expertise and strategy to a case to help efficiently and effectively value a claim and move it towards a positive resolution, many times without the assistance of a higher cost testifying expert.

Legal nurse consultants – the “consulting” expert

A legal nurse consultant is a licensed nurse who assists with the investigation of medical litigation matters. Typically, a legal nurse consultant has several years of hands-on clinical expertise, strong communication skills, and a natural ability to educate others on medical issues. The legal nurse serving as a consulting expert has specific training in the nuances of medical-legal claims and established practice working within the legal industry. These professionals offer their knowledge and talents at a cost-effective rate substantially lower than an attorney or testifying expert rate.

In the most successful relationships, “consulting” experts partner with the legal team early on to quickly assess the claim and inform litigation strategy. Legal nurse consultants use data-driven processes, standard of care evaluation, and clinical judgment to identify the issues that truly matter and help the legal team determine the best path to claim resolution. If and when needed, they facilitate work with a “testifying” expert who supports the established theories of liability.

“Consulting” experts provide specialized services, including:

• Medical record review. A patient’s medical record can be lengthy and involve multiple physicians, health facilities, diagnoses, and procedures. The legal nurse consultant reviews the entire medical record, using his or her scientific knowledge to comprehend the circumstances surrounding the alleged injury. As a seasoned nurse who understands the nuances of medical record entries, the nurse “consulting” expert also analyzes the record to determine whether it has missing documents or contains inconsistencies or falsified information. Typically, the consulting expert prepares a detailed work product focused on relevant information for the team’s use throughout the litigation process. Reports prepared by the consulting expert are protected under attorney privilege.
• Evaluate the standard of care. Irrespective of the clinical specialty areas and types of medical professionals involved in the claim, the “consulting” expert utilizes their skill to research the standard of care and identify any deviations from it in the delivery of patient care. If deviations exist, the legal nurse consultant determines whether those deviations are relevant to the facts of the case and offers an informed opinion on it.
• Determine the merits of the case. Once the “consulting” nurse expert determines failure(s) in the standard of care, he or she, along with the team, investigates whether the elements of negligence have been met. Perhaps most notably—the legal nurse consultant can be instrumental in proving or disproving whether any breach caused the injury claimed and the extent of any damages.

Specifically, he or she can determine the proximate cause, the result that directly produced an event that would not have otherwise occurred. In medical cases, the event usually is a physical injury or harm. The legal nurse consultant identifies the factors that directly contributed to the injury or harm from the record and other evidence.

Early valuation of a claim can dramatically impact the expenses in a medical negligence/malpractice case.  Legal nurse consultants play a key role in assessing the extent of any damages and helping value the claim, which in turn can help determine whether the parties want to settle early or proceed to trial. Early settlement often saves money for all parties involved.

• Develop strategy. Above and beyond the clinical assessment of a case, “consulting” nurse experts seasoned in the legal aspects of managing medical-legal claims can work alongside the team to provide strategy on possible outcomes. What are the strengths and weaknesses of each party’s position? Is there enough evidence in the medical record to convince opposing counsel to settle? What is the best possible outcome? Knowing the full context of the medical record, the legal nurse consultant has answers to the questions to render behind-the-scenes opinions and assist the attorney in putting together a strategy for settlement or trial.
• Work with a “testifying” expert. If a case proceeds to trial, the “consulting” expert does not testify but can locate a testifying expert in the appropriate clinical specialty. Because much of the “pre-work” has been done on the case, the legal nurse consultant can provide the input the expert needs to dive into the case without reviewing and summarizing the entire record. Basically, the legal nurse consultant offers the testifying medical expert a road map that keeps the case moving forward efficiently and on budget, at times dramatically reducing the overall litigation expense.

“Testifying” expert

A “testifying” expert is a licensed professional with direct clinical experience in a medical specialty. The expert can review medical records, provide an objective opinion on the standard of care and testify at deposition or trial on medically-related litigation matters. Any written report prepared by the testifying expert is subject to discovery by the opposing party, and therefore, has limited use in the ongoing development of case strategy.

The primary reason to use a “testifying” expert is to secure testimony on the standard of care, needed in the event a claim proceeds to trial. The expert forms an opinion on whether the medical provider in the lawsuit used the skill, knowledge, and care required and acted as another reasonable provider would under similar circumstances. The expert must defend the opinion under rigorous cross-examination. An expert can also be used to provide testimony on complex medical conditions. The testifying expert is often retained to perform the same services as a consulting nurse, but at a higher rate—often, twice the rate of a legal nursing consultant.

Conclusion

Attorneys, claims adjusters, insurers, and general counsel for hospitals and health systems should consider using a “consulting” nurse expert as a strategic, cost-effective way to get a medical professional involved at the onset of a lawsuit. Then, if and when necessary, rely upon “testifying” experts to provide expert witness testimony at deposition and trial. Using experienced legal nurse consultants as “consulting” experts is a smart decision for the bottom line in medical-legal claims—often yielding litigation savings in the tens of thousands.