Author Archive

Lia-bil-ity…Easy as 1-2-3

March 17th, 2010. By Kristine B

Often in the media you’ll hear the word ‘liability’ thrown around. In fact, liability is a word that’s used all the time. However, while people may have an idea of what liability is, they may not know all the ins and outs of it. So, this Pleading Ignorance discusses liability and some of the forms of liability. Sound exciting? You bet it is!

Legal liability refers to a party’s legal responsibility for an act or omission. If that party fails to meet its legal obligations, it could be open to a lawsuit for any damages that resulted from a failure to meet those obligations. Hence (to use another fancy word) we say that the party is liable. By the way, it’s a “party” and not a “person” because a company or other entity can be held liable as well—not just a person.

Lawsuits involving liability must prove three things:

• That the defendant had a duty to the plaintiff
• That the defendant failed to fulfill the duty, and
• That the failure to fulfill the duty resulted in damages to the plaintiff.

Fail to prove all three and you’ve failed to prove liability.

For example, Stephen is driving a car and fails to stop at a red light. While in the intersection, he hits the car Sandra is in, which had the right of way. Sandra is injured in the accident. Sandra can argue that…

• Stephen had a duty of care to the other drivers on the road—including to Sandra
• Stephen’s duty of care was breached when he failed to stop at the red light, and
• Because Sandra was injured in the car accident she can prove that Stephen’s failure to meet his duty of care caused her injuries.

All three answered, so it’s sounding like Stephen’s pretty liable.

So you’ve got the gist of legal liability. But recently, there have been mentions in the news of joint and several Read the rest of this entry »

Tags: Joint Liability, Liability, Pleading Ignorance, Several Liability
Posted in Pleading Ignorance | No Comments »

Understanding Preemption in Plain English

March 5th, 2010. By Kristine B

Over the last year or so, there’s been some discussion in the media about “preemption.” So, I thought I’d take this opportunity to explain preemption and why it’s important (specifically, why and how it affects you). 

In legal-speak, preemption is based on the Supremacy Clause of the US Constitution. That clause states that some matters are of national importance rather than local importance. In those matters, national (federal) law must take precedence over state laws. Furthermore, states cannot pass laws that are inconsistent with the federal law. Preemption extends downwards as well, so that state law takes precedence over community law. 

Ok—let’s give a completely unrealistic and ridiculous example to simplify things here. Let’s say our friends in Washington DC decide that Wednesdays should be “Wear Red” day—kind of a “have heart” or weekly AIDS Awareness thing. Now let’s also suppose that some state actually bans wearing red on Wednesdays. Whoops—would seem to be a problem here, right? Ahh, but with preemption, federal law could “preempt” state law and you could look forward to viewing a sea of red every Wednesday. 

Now, this happens where the matter is of national importance. Not every law is subject to preemption. Also, there are situations in which state and federal laws are similar and do not entirely contradict each other, leaving questions about which laws should be followed. 

For example, not all states have the same employment laws. There’s a federal law, called the Fair Labor Standards Act (FLSA) that sets out employee wages and hours worked. However, many states have laws that overlap with the FLSA and also set out wage and hour regulations. In those situations, it is not Read the rest of this entry »

Tags: Pleading Ignorance, Preemption
Posted in Drugs/Medical, Pleading Ignorance | 3 Comments »

A Settlement, a Verdict and a Judgment walk into a bar…

March 4th, 2010. By Kristine B

(Let me preface this by saying this isn’t a legal joke—more of a little vignette. My apologies to those of you “legal purists” out there…this is Pleading Ignorance and it’s for the rest of us lay folk.) Back to the story…

After a few drinks, a hot chick (I’m a woman, so I can write that) walks up; seems she’s looking for romance—and a husband.

She approaches the Verdict first. He’s game, but he has to ask his mother first—he’s a momma’s boy at heart and momma’s the judge. She doesn’t have time for that, so she heads over to the Judgment. They chat a bit, but then she realizes he may want to bail early on—he wants to keep his options open—and she’s wanting more of a final commitment—no chance of an appeal, so to speak. So she starts chatting up the Settlement. She likes that he sounds like he’s “settled” and he’s upfront about things—no baggage—he hasn’t been through the rigmarole. Yup, the Settlement’s her guy. She buys him a drink, and off they go into the sunset.

Love story though it may be, I use the above bit of fiction to describe three legal terms that are often used interchangeably—and incorrectly so: Settlement, Verdict and Judgment.

So let’s do some ‘splaining.

What is a Settlement?

You hear a lot about settlements because, hands down, they win the popularity contest when it comes to lawsuit outcomes. Why? A few reasons. First, they happen before anyone actually goes to trial—so you avoid the possibility of a case being dragged on and on as it goes through the courts. Secondly, as a settlement arises from negotiation, both parties must agree to the terms of the settlement—and that includes the dollar amount of the settlement and terms of the settlement such as whether or not the amount of the settlement is confidential. And third, a settlement is final—there’s no Read the rest of this entry »

Tags: Judgment, Pleading Ignorance, Settlement, Verdict
Posted in Pleading Ignorance, Settlement | 6 Comments »

What does a Legal Nurse Consultant do? Katie Morales explains…

February 26th, 2010. By Kristine B

This past week, I had the pleasure of speaking with Katie Morales, a legal nurse consultant and nurse. Since it was my first time speaking with a legal nurse consultant (LNC) that I know of, I thought I would share with you what legal nurse consultants do.

How does a Legal Nurse Work with a Lawyer? 

“Legal nurse consultants help attorneys with any case that might be medical-legal, for example, medical malpractice, Katie says. “We help an attorney identify the issues: is there merit in this case, is there an issue with standard of care, are there issues for development? 

Usually, we are contacted by the attorney and our work can be both up front or behind the scenes. Say someone was in the hospital for an appendix problem and died. The family member might say, ‘Something is not right, here.’ An attorney will look for an expert to review the case. So the LNC would review the case and determine if there were deviations from the standard of care. If there are deviations from the standard of care, the LNC will give an affidavit to start the process of a medical malpractice suit. The LCN might then be called on to testify. 

Another case is where a hospital is being sued. The hospital might ask the LCN to come in and determine if there is a deviation from the standard of care. The LCN might say there are no deviations or might say, ‘Yes, there are deviations and this is where they are.'”

What made you decide to become a Legal Nurse Consultant?

“I was always interested in the legal part of nursing, but I didn’t want to be part of the group that was crucifying nurses. Since 1999, nursing has been the most trusted profession, except in 2001 when it was firefighters. I’m proud of this profession and I know we are doing our best. But, if we don’t define the standard of care, it will be defined for us. I don’t want someone dictating it for us. 

Legal nurse consultants know the system and we know where to look for information. For example, when attorneys request documents, they have to ask for exactly what they want. I am able to tell the attorney what documents to ask the hospital for. I know where to look for information and what information to ask for.” 

Katie Morales, RN, C, LNC, BSN, has been a nurse for 25 years and a legal nurse consultant for five years. In addition to being a nurse and legal nurse consultant, she also works for a company giving flu shots, and has helped set up a service, set to launch on International Nurses Day [May 12] that involves community learning and patient simulators. 

Her legal nurse consulting business is called DisceRNment, LLC, and can be found online at discernment.biz.

Tags: DisceRNment, Katie Morales, Legal Nurse, medical malpractice, Pleading Ignorance
Posted in Pleading Ignorance | 8 Comments »

“This Statement has not been Evaluated by the FDA”

February 5th, 2010. By Kristine B

And until something changes, it ain’t gonna be.

This week, a study was released suggesting that the combination of herbal remedies and heart medications can be dangerous for patients. According to the study, patients who use popular herbal remedies—including ginko biloba, St. John’s wort and Echinacea—along with heart medications are at an increased risk of serious heart rhythm problems, higher blood pressure and bleeding. Serious stuff.

If you’ve ever wondered how the herbal supplement industry is regulated, read on as Pleading Ignorance dives into the regulation of dietary supplements.

What is a Dietary Supplement?

Good question. The phrase “dietary supplement” gets tossed around a lot. It’s a vitamin. It’s a weight loss miracle. It’s a muscle-builder. Or the secret to an improved sex life. “Dietary Supplement” means a lot of things. But the FDA, in accordance with the Dietary Supplement Health and Education Act (DSHEA) of 1994, defines “dietary supplement” as a product taken by the mouth that contains dietary ingredients that are intended to supplement the diet. Sounds like a definition that basically says a lot of nothing–except that the supplement needs to be taken orally. Ok, so what’s a dietary ingredient? According to the FDA site, a dietary ingredient is a:

• vitamin
• mineral
• herb or other botanical
• amino acid
• dietary substance for use by man to supplement the diet by increasing the total dietary intake (e.g., enzymes or tissues from organs or glands)
• concentrate, metabolite, constituent or extract

Makes sense, but that date—1994—is important… Read the rest of this entry »

Tags: dietary supplements, FDA, herbal supplements, Pleading Ignorance
Posted in Pleading Ignorance | 2 Comments »