Documents Given to Legal Nurse Consultant are Discoverable in Medical Malpractice Cases

This case involves a woman who brought a medical malpractice case against a hospital because of the death of her daughter. A registered nurse was employed by the hospital to investigate claims that would probably result in litigation. The nurse prepared a confidential report that included her conclusions that were addressed to the hospital’s Risk Manager. One of the hospital’s paralegals mistakenly gave the confidential report to the hospital’s only medical expert for the case, a legal nurse consultant. The legal nurse consultant was supposed to testify at trial about the standard of care issues in the case. The medico legal nurse consultant revealed at the trial that she had “glanced at it” and she also admitted that she had relied on it in giving her opinion about the case. The plaintiff’s attorney in the case sought to gain access to the report since it had been given to the legal nurse consultant and she was the hospital’s expert witness.

Question(s) For Expert Witness

1. Are documents given to a legal nurse consultant in preparation for litigation discoverable by opposing counsel in a medical malpractice case?

Expert Witness Response

In most states, there are laws that protect the confidentiality of certain documents prior to litigation. This means that certain documents that a party has in its possession may not be accessed (or be “discoverable”) by the opposing side’s attorney because the documents may be privileged work-product that is created in anticipation of litigation. Under most state laws, work product that is created after a party consults an attorney about an anticipated litigation and that involves the anticipated litigation may not be obtained in the discovery process by the opposing party’s attorney. However, under the laws of many states, any documents given to a party’s expert witness in anticipation of litigation are discoverable by the opposing party’s attorney. This is the law in most states because documents that are considered work product generally lose their protected status when they are given to a party’s expert witness in a case, including a legal nurse consultant. It is usually the law in most states that when documents are given to a legal nurse consultant prior to their formulating their medical opinion about a case, they must be revealed to the opposing party’s attorney. Even in a case where the legal nurse consultant is given documents inadvertently, the documents are discoverable by the opposing party’s attorney. Because of this, the plaintiff’s attorney in this case probably had the right to review the confidential report that was given to the legal nurse consultant.