Nurse Case Managers

Comp Clues
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.