Plaintiff vs Defense Work as an LNC

The clinical work is the same on both sides: read the record, measure the nursing care against the standard of care, and cite the source for every finding. What changes is who the client is, when you come into the case, which records you start with and the questions you are asked. Many legal nurse consultants work for plaintiffs and defendants across different matters, and a balanced history can help an expert's credibility. What you can never do is work both sides of the same matter.

What stays the same

• The standard. What a reasonably prudent nurse would have done in the same circumstances, with the information available at the time. It does not move depending on who pays you (see what the nursing standard of care is).
• The method. A sourced chronology, a check of what should be in the chart and is not, and findings tied to record pages.
• Your scope. Nursing opinions only. Causation and physician care belong to physicians on either side.
• Candor. Your client needs to hear the weaknesses, whichever side it is on.

Plaintiff work

Plaintiff firms usually bring you in early, often before a lawsuit is filed. The attorney is deciding whether to take the case, and on contingency cases the firm usually advances the costs, so an honest early answer matters.

• Typical questions. Is there a nursing deviation? Is it documented or only alleged? What records are missing? Does it justify a physician review on causation?
• Records. Often incomplete at first: what the family obtained, or a first production without the audit trail, policies or staffing records. Your list of missing records drives the next request.
• The family's account. It may differ from the chart. Your job is to show what the record supports, where it conflicts with the account, and what would resolve the conflict.
• Deliverables. Merit screens, chronologies and standard of care reviews; support for an affidavit or certificate of merit where the state requires one (see the certificate of merit nurse review); and sometimes damages work such as life care planning.
• The bias to watch: hindsight and sympathy. You know the outcome, and the family's loss is real. Judge each decision by what the nurse knew at the time.

Defense work

Defense firms, insurers and risk managers usually bring you in after a claim or lawsuit, although insurers and hospitals sometimes ask for an early evaluation of an incident.

• Typical questions. Was the care within the standard? Which allegations are weakest, and which are a real problem? What will the defense nurse expert need? Are there other explanations for the outcome that a physician should evaluate? How does the patient's history before and after the event affect the picture?
• Records. Usually more complete from the start, including the facility's own policies, plus the plaintiff's other medical records as discovery goes on.
• People. You may help the attorney prepare nurse defendants for deposition by walking them through the chart and the timeline.
• Deliverables. Record summaries, allegation-by-allegation reviews, chronologies, deposition outlines and, for insurers, input for claim evaluation. The article for defense counsel and insurers describes what they typically ask for.
• The bias to watch: normalizing and loyalty. "Everyone charts like that" or "we were short-staffed that night" may be true and still not meet the standard. Loyalty to fellow nurses is understandable; it cannot shape a finding.

Side by side

Working both sides

Opposing counsel often asks a testifying expert what share of their work is for plaintiffs and what share for defendants. A history heavily weighted to one side can be used to argue bias. Keep an accurate count of your engagements by side: you are likely to be asked, and a guess under oath is a problem. If you testify, your first deposition as a nurse expert witness covers how these questions usually come up.

Switching sides between matters is normal. These are not acceptable:

• working for both sides of the same matter, or of closely related matters,
• using confidential information from one engagement in another,
• taking a case against a facility, carrier or firm you have a current or recent relationship with, without disclosing it.

The conflicts guide covers the check to run before every proposal.

Choosing where to start

There is no wrong side. Weigh these:

• Comfort. Plaintiff work means telling attorneys, and sometimes juries, that a nurse fell short. Defense work means explaining why a bad outcome was not a nursing failure. Both mean saying things some nurses will not like hearing.
• Your region and employer. If you work clinically, reviewing cases against facilities near you raises conflict and relationship questions. Defense work for your own employer's system is a conflict too.
• Testimony. A nurse expert witness who has reviewed for both sides can often explain the standard more convincingly than one who has only seen one view of it.
• Your instincts. If you notice you are rooting for an outcome before you have read the chart, that is the side where you need the most discipline.

Say on your profile which sides you work for, so attorneys reading it know before they contact you.

Next step

Create your consultant profile: attorneys on either side post cases without names, and you send proposals on the ones that match your specialty.

General information for legal professionals, not legal advice. Rules and deadlines vary by state; check the statute and local rules that govern your case.