ARE THERE CONSEQUENCES?

Last week there were several posts about Testifying Experts who withdrew from cases after signing a contract with an attorney. There have also been threads about LNC Contractors and Subcontractors who failed to fulfill the terms of the signed contract.? Each of these examples can result in disappointment, inconvenience, loss of a business relationship, damage to a reputation, and possible legal consequences.?

First, a Breach of Contract occurs whenever a party who entered a contract fails to perform their promised obligations.? Our conversations last week have centered on LNCs who promise to serve as expert witnesses, but then pull out.? The reason was not a significant illness, family emergency, or other understandable exceptions, ?but because they no longer had the time or interest in the assignment.?

First, there is the matter of the contract that was signed. It is usually the LNC who required the contract to ensure she was paid by the attorney. ??But what happens when the LNC breaches the contract?? The overarching goal of contract law is to place the harmed party in the same economic position they would have been in had no breach of contract occurred.? As a result, the default remedy available for breach of contract is monetary damages.

In other words, if the LNC testifying expert pulls out of a case the LNC is obligated to repay any retainer or other payments from the hiring attorney because the expert did not fulfill the contract.? This is true for subcontracting LNCs also.? The contract with the hiring LNC is broken if the subcontractor does not finish the task outlined in the contract on time or does not provide services or products that are up to the standards of a legal nurse consultant. ?Make sure all parties are qualified and understand the contract before signing. ?If the LNC breaches a contract, the hiring attorney or hiring LNC may have the right to sue for the contract violation if certain elements are established.? Let your attorney investigate the breach of contract.? If the LNC breaches a contract with her attorney, she is liable whether or not the attorney sues for damages.? Thus, do the right thing.? Repay any money paid for a service you did not fulfill.

All professionals have Codes of Ethics to help regulate their relationship with the consumer and each other.? These codes of ethics are usually based on a set of values and norms that represent the philosophy and practice of the profession.? The values established by the profession become the rules of expected behavior among the members of the profession, with expectations of loyalty and adherence.

The ANA writes the Code of Ethics for all nurses which primarily focuses on behaviors expected in patient-centered care. ??AALNC writes the Code of Ethics for the practice of LNC.? Any improper conduct that adversely impacts a client, a claim, or a party to a legal action could give rise to potential liability exposure.

The most common areas of potential liability include:

1.????? Conflict of interest.? There could be a legal conflict, professional conflict, or personal conflict of interest.

2.????? Evaluating potential claims without attorney Involvement.? You cannot evaluate a potential case for a friend, neighbor, or other individual without attorney involvement.

3.????? Insufficient qualifications or expert affidavit.? Remember the nurse can only sign an affidavit or testify to the standards of nursing care, never a physician.?

4.????? ?Opining outside one’s scope of experience.? You are not qualified in every area of nursing practice.? If you have never served as an OR nurse, then don’t offer an opinion as a testifying expert about SOC by OR nurses.

5.????? Improper withdrawal as an expert witness. If after review of all the records, you cannot support the case, say so.? Sufficient notice should be given for withdrawing from a case.? If extenuating circumstances arise after you sign the contract to provide expert services, notify the attorney immediately, the expert should also assist the attorney to find a qualified, available replacement so the attorney can meet procedural deadlines.?

6.????? Behind-the-scenes LNC work products must be of the highest quality and include complete medical literature research and a complete review of the medical records.? The behind-the-scenes LNC can be liable for a faulty recommendation about the merits of a case if the recommendation was not based on professional standards found in the literature.

7.????? Billing disputes.? Billing disputes most commonly arise due to the attorney's perception of the work product quality.? You will always provide a written fee schedule, business contract, and excellent work product.?

8.????? Confidential Violation.? You can be held liable for breach of confidentiality or violation of privacy of health care information.? All behind-the-scenes work products must be marked as Confidential and Privileged Attorney Work Product and medical records should be destroyed after the case has been resolved.

Actions have consequences. You can decide you actions: however, you do not get to decide your consequences.