Defense Win: Strategy key in lowering litigation costs and damages

When a Kentucky skilled nursing facility faced a claim for a resident’s alleged fall injuries, the company’s outside counsel turned to Med Law Advisory Partners to evaluate the case.

After first providing a high-level review of whether the facility met the standard of care, Med Law’s consulting nurse experts continued to work alongside counsel on the case, regularly assessing medical records throughout the discovery phase of litigation and helping the defense build its strategy.

The case ended in favorably in arbitration this summer, a win for the defense.

The company’s engagement of Med Law’s team ultimately saved it significant time and money, as the consulting experts helped clearly define the extent of damages the plaintiff suffered and made strategy development more expeditious–at a far lower rate than testifying experts. The case underscores the advantages of early engagement of legal nurse consultants, who bring specialized medical-legal expertise to litigation.

SITUATION

The case goes back to 2018, when a certified nursing assistant for the skilled nursing facility attempted to transfer a resident from a bed to a chair using a mechanical lift.

In the process of the transfer, the lift tipped over, causing the resident to fall to the ground. She reported pain to both legs and was taken to the hospital, where she underwent surgery for bilateral femur fractures.

The resident reported severe pain in her legs both pre- and post-operatively, which required the use of narcotics for pain control. She was discharged to the same skilled nursing facility and, over time, returned to her prior level of functioning and baseline level of chronic pain.

The resident claimed in her suit that she experienced prolonged, significant pain after the fall and never regained her prior mobility.

In March 2020, at the outset of the plaintiff’s suit, the facility engaged the Med Law team to provide a standard-of-care review in the case.

CHALLENGE

In its investigation, Med Law’s nurse consultants determined that the resident had been appropriately assessed as a high risk for falls based on her need for extensive assistance with transfers. The facility had a fall risk care plan in place for the resident, which required the use of a two-person, mechanical lift for transfers.

In the resident’s case, only one CNA was present for the transfer at the time of the fall. Med Law’s legal nurse consultants determined that the facility breached the standard of care.

Additionally, they determined the facility had done nearly everything it could to prevent the incident, from providing initial and ongoing training of all personnel in use of the lift, performing random checks for staff compliance, and keeping equipment maintenance logs current.

After determining the facility had been negligent, the team shifted to considering how to mitigate the damages and help defense counsel plot the next steps of the case.

APPROACH

Ahead of mediation in fall 2020, defense counsel and Med Law’s consulting nurse experts focused the defense strategy in three areas.

Med Law’s team re-analyzed primary and third-party medical records to establish the resident’s functional capacity and mobility levels before and after the fall, to differentiate the resident’s post-operative pain from her baseline chronic pain prior to the incident, and to pinpoint when her acute pain resolved. The team prepared a table showing her pain and function levels over time.

In its deep-dive analysis of the records, the team determined that the fractures were significant in that the resident suffered significant pain post-fall, albeit for a short period of time. Her acute pain was well-managed in the hospital and tapered off within weeks of her surgery.

The team also determined that the resident experienced little if any diminished functional capacity following the surgery.

As a result of the team’s findings, the facility’s counsel opted to concede liability and try the case on damages. The Med Law team prepared two demonstrative graphics depicting these findings for use in mediation.

Graphic of pain levels over time, depicting response to analgesics and resolution of chronic pain.

Graphic of functional level of assistance required for ADLs pre and post-fall.

RESULT

In mediation, the parties disagreed on the extent of pain the resident experienced post-surgery and when her acute pain was resolved – rejecting the mediator’s settlement proposal.

In anticipation of arbitration, outside counsel asked the Med Law team to provide supplementary proof supporting its position. The team sought and received additional medical records doing so. The case resolved favorably in arbitration this summer, with savings of close to $200,000 in damages appreciated by the defense.

“The Med Law team did an amazing job on this damages analysis and were instrumental in developing the winning strategy to reduce the amount of pain and suffering,” defense counsel said. “It was a fantastic idea to compare the pre-fall pain to post-fall pain, especially with so many of our frail clients having many of these conditions going into the injury at issue.”

The case shows the value of hiring Med Law early in litigation as consulting experts who can partner with defense counsel and help guide strategy through the course of litigation.

If and when defense counsel need to engage testifying experts to establish the standard of care for deposition or trial, the early legwork done by consulting nurse experts can help reduce time and money spent on those testifying experts.

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.

Contact us today to see how we can help you save litigation costs in your healthcare-related matters.