Legal Nurse Consultants & Merit Reviews: Balancing Justice and Professional Integrity

As Legal Nurse Consultants (LNCs), we frequently receive requests to perform merit reviews for potential medical malpractice cases, yet many of us may not fully grasp their significance or purpose in the litigation process. A merit review serves as a crucial preliminary assessment that determines whether a potential medical malpractice claim has sufficient basis to proceed through the legal system. Before undertaking these evaluations, LNCs must familiarize themselves with the specific rules and statutes governing merit reviews in the state where the case will be filed, as requirements vary significantly across jurisdictions. While this article focuses on Kentucky's requirements, it's essential to research and understand the particular guidelines for your case's venue. Understanding the purpose and requirements of merit reviews not only enhances our professional practice but also ensures we fulfill our vital role in the medical-legal system effectively.

Kentucky law provides specific guidelines for merit reviews in medical malpractice cases, which is distinct from the broader case evaluations that LNCs routinely perform. According to KY. REV. STAT. ANN. § 411.167 (2019), a merit review requires an affirmation or declaration that confirms two key elements: first, that the claimant has thoroughly reviewed the case facts, and second, that they have consulted with at least one qualified expert who meets Kentucky's Rules of Civil Procedure and Evidence standards. This expert must be deemed knowledgeable about the relevant issues in the particular action. It's crucial for LNCs to understand that a merit review differs significantly from a traditional case evaluation, where we analyze the four elements of medical malpractice: duty, breach, causation, and harm. Instead, a certificate of merit serves as a formal declaration stating that, after careful examination of the medical records, a qualified expert reasonably believes there is sufficient basis for the legal action to proceed. This distinction is vital for LNCs to grasp as it directly impacts the scope and focus of our review process.

A merit review represents a distinct departure from the traditional element-based evaluation that most LNCs are accustomed to performing. Rather than methodically establishing each component of medical malpractice—duty, breach, causation, and harm—the merit review process takes a more focused approach. In this capacity, the LNC examines the medical records with a different lens, looking specifically for errors, omissions, inconsistencies, or deviations from the standard of care that could justify moving forward with a claim. The threshold for a merit review is not about proving each element of malpractice, but rather about identifying sufficient indicators within the medical record that warrant further legal action. This distinction is crucial. The LNC need only reasonably believe, based on their professional expertise and review of the records, that there are enough concerning findings to justify commencing a claim. This streamlined focus allows for a more efficient preliminary assessment without the burden of establishing the complete chain of legal elements typically required in a full case evaluation.

Many LNCs face an internal ethical struggle when conducting merit reviews, largely due to our rigorous training in elements-based analysis. While it's natural—and perhaps inevitable—to consider duty, breach, causation, and harm as we review records, we must recognize the timing and context of merit reviews in the legal process. At this preliminary stage, the only available evidence is the medical record itself. No formal discovery has taken place—there are no interrogatories, requests for admissions, depositions, or additional evidence collection. The case is in its earliest phase, and importantly, discovery cannot begin until after the complaint is filed.

This timing explains the lower threshold required for merit reviews compared to full case evaluations. With limited information available, our role is to identify potential deviations from the standard of care that warrant further investigation. If such indicators are present, providing an affidavit of merit becomes crucial. Hesitating to do so based on incomplete information about elements that would typically be proven through discovery could prematurely end a potentially viable case. In essence, we must resist the urge to apply full case evaluation standards to what is meant to be a preliminary assessment of merit.

Just as important as recognizing when a case has merit is acknowledging when it does not. There will be instances where the medical record simply does not contain sufficient evidence to support proceeding with a claim. In these situations, LNCs must stand firm in their professional integrity and communicate their findings honestly to the attorney. Having this difficult conversation might feel uncomfortable, especially when working with a valued client, but it is a crucial part of our professional responsibility. While an attorney may eventually find another expert who arrives at a different conclusion, your reputation as a Legal Nurse Consultant hinges on maintaining consistent professional standards and ethical integrity. The temptation to provide an affidavit of merit simply to please an attorney can be strong, particularly when considering future business relationships. However, becoming known as an expert who can be influenced to say anything for a fee will cause irreparable damage to your professional reputation and credibility. Our value as LNCs lies not just in our medical expertise, but in our commitment to honest, unbiased evaluation.

As Legal Nurse Consultants, we occupy a unique position at the intersection of healthcare and law, where our expertise helps shape the path of medical malpractice litigation. Understanding the distinct purpose and scope of merit reviews is crucial to performing our role effectively and ethically. While these preliminary assessments require a different analytical approach than traditional case evaluations, they serve as a vital gateway to justice for potentially injured patients. When we maintain clarity about the purpose of merit reviews we can better serve both the legal system and our profession. Our role demands a delicate balance. We must remain open enough to recognize potential merit with limited information while maintaining the professional integrity to acknowledge when merit doesn't exist. This balance not only upholds the standards of our nursing profession but also ensures that the legal system functions as intended, protecting both healthcare providers from unfounded claims and patients who have experienced genuine negligence. In the end, our commitment to honest, professional assessment in merit reviews helps ensure that justice is served while maintaining the integrity that defines our profession.

Understanding merit reviews and their vital role in the medical-legal system is just the beginning. If you would like to learn more about merit reviews, case evaluations, or other aspects of legal nurse consulting, I invite you to visit my website at www.garveyces.com. For personalized guidance or to discuss your specific needs, please reach out to me directly at matthew.garvey@garveyces.com. Together, we can continue to advance the standards of our profession while ensuring justice for those we serve.

Disclaimer:

The information provided in this article is based on my education, professional knowledge, and clinical experience. I am not an attorney; this content is for informational purposes only. It should not be construed as legal advice.