|
Respectfully Submitted by Robert Doyle, Attorney at Law
Due Doyle Fanning Metzger,LLP
The subject of nurse case managers has been a subject that is of great
interest to the Worker’s Compensation Board of Indiana. Many questions
have been raised with respect to the duties, responsibilities, and the
scope of the nurse case manager’s participation in a worker’s
compensation claim. We recently completed a Board-sponsored seminar for
attorneys across the state on the issue of nurse case managers. We will
set forth below the law with respect to the discoverability of nurse
case manager reports and the basis responsibilities of nurse case
managers as they fit into the Indiana worker’s compensation system.
A. GENERAL PROVISIONS
The Code of Ethics for nurses is available on the American Nursing
Association web site (www.nursingworld.org). Under the Nurses Code of
Ethics, a nurse’s primary commitment is to the patient. There is a core
value of respect for human dignity, which requires that the nurse should
honor dignity in every patient encounter. The Code also addresses the
changes involving health care financing, and potential conflicts between
economic interests and professional integrity. The Code states that it
is ethically incumbent upon the nurse to be sensitive to the potential
effects of financial cutbacks and conflicts which may put a patient at
risk of substandard health care.
Nurse case managers also have a legal duty to injured employees. That
extends beyond the ethical considerations noted above. A nurse case
manager’s failure to properly coordinate and communicate under certain
circumstances could create an unreasonable risk of harm and give rise to
a duty to the injured worker. Campbell v. Eckman/Freeman & Associates,
670 N.E. 2d 925 (Ind. Ct. App. 1996).
It is recognized that nurse case managers are often put in a difficult
situation. There is a certain connection with many injured workers, and
a sincere effort to see them recover from their injuries. There is also
the added responsibility of moving the claim to a reasonable conclusion
in the face of certain claimants who expect to be made completely whole
as they were pre-accident. Sometimes this can be a difficult balancing
test. However, as a general rule, it is recommended that the nurse case
manager provide the medical information and that the employer or
insurance company provide the decision making process with respect to
the information provided.
It is understood that nurse case managers are frequently placed in the
difficult position of managing a claim, managing difficult claimants,
and the expectations of employers. Added to this is the mistrust that
some claimants and Plaintiff’s attorneys bring to the process. For that
reason, it is recommended that nurse case managers proceed to conduct
the management of the case as objectively as possible in all reports and
actions. For instance, we frequently hear Plaintiff’s attorneys
complaining that nurse case managers seem to have an inappropriate
relationship with doctors’ offices, and are permitted to roam freely in
the hallways and communicate with staff members not necessarily involved
in that case. This causes claimants to believe that the system is
stacked against them. It is recommended that appropriate sensitivity
should be maintained with the idea that the injured workers do not
necessarily have a familiarity with the worker’s compensation process.
B. DISCOVERABILITY OF NURSE CASE MANAGER REPORTS
Disputes often arise concerning the discoverability of nurse case
manager reports. The Worker’s Compensation Board incorporates by
reference the provisions of Trial Rule 26 through Trial Rule 37, which
are the trial rules pertaining to discovery. 631 IAC 1-1-3. Discovery is
guided by the general provisions of Indiana Trial Rule 26. Trial Rule
26(B)(1) provides:
Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, which
it relates to the claim or defense of the party seeking discovery or the
claim or defense of any other party, including the existence,
description, nature, custody, condition and location of any books,
documents, or other tangible things and the identity and location of
persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissable at trial
if the information sought appears reasonable calculated to lead to the
discovery of admissible evidence.
“The discovery rules are designed to allow a liberal discovery process,
the purposes of which are to provide parties with information essential
to litigation of the issues, to eliminate surprise, and to promote
settlement.” National Engineering & Contracting Co., Inc., v. C & P
Engineering & Manufacturing Co., Inc., 676 N.E. 2d 372 (Ind. Ct. App.
1997).
The work product privilege is provided for by Trial Rule 26(B)(3), which
provides:
[A] party may obtain discovery of documents. . .prepared in anticipation
of litigation or for trial by or for another party or by or for that
other party’s representative (including his attorney, consultant,
surety, indemnitor, insurer or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of his case and that he is unable without undue hardship to
obtain the substantial equivalent of the material by other means. In
ordering discovery of such materials when the required showing has been
made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of any attorney or
other representative of a party concerning the litigation.
In the context of an insurance claims file, “a document generated or
obtained by an insurer is entitled to the protection from discovery
found in TR 26(B)(3) if the document can fairly be said to have been
prepared or obtained because of the prospect of litigation and not, even
though litigation may already be a prospect, because it was generated as
part of the company’s regular
operating procedure.” Demoss v. Dobson, 540 N.E. 2d 655 (Ind. Ct. App.
1989).
The Worker’s Compensation Act specifically states in I.C. 22-3-36, “No
fact communicated to, or otherwise learned by, any physician or surgeon
who may have attended or examined the employee, or who may have been
present at any examination, shall be privileged . . .” Although this
section only refers specifically to physicians and surgeons, it
logically extends to nurses as well.
As noted in the above research materials, all parties involved should
expect that the nurse case managers’ notes will be subject to review by
the Plaintiff and Plaintiff’s attorney. We frequently see reference to
cost-saving measures in connection with the case manager’s work or
certain personal items placed in regarding an assessment of the injured
worker that is separate from the medical evidence and documentation. It
is recommended that the reports remain strictly medical in nature with
respect to the treatment and the treatment plan, and that any other
communication be made preferably with adjusters to the extent that it is
necessary. Any cost-saving documentation should be placed in another
format.
Back to Top
|