Blaine Jumper, MSN, RN, CMSRN, chair of the AMSN Digital Content Committee, talks with Polly Gerber Zimmermann, RN-BC, MS, MBA, CEN, ONC, FAEN, about her 2025 AMSN Convention session, “What’s Wrong With This Picture? Unfolding Scenarios of Lawsuits to Identify Practice Lacks and Picking Up Key Clues in a Patient’s Presentation.” Learn how Zimmermann’s emergency nursing background influences her work as a legal expert witness, the common documentation and assessment factors that contribute to litigation, how bedside nurses can reduce their legal risk while improving patient outcomes, and more.

Blaine Jumper: What first sparked your interest in becoming a legal nurse consultant (LNC), and how did you transition from bedside practice?

Polly Gerber Zimmermann: You stay at the bedside if you want to be an expert witness, so I never left the bedside, though it was with teaching in later years. You can become an LNC (which I am not) who does more background work and can leave the bedside. I was surprised by how many nurse attendees at the convention wanted to talk about how to become a legal expert witness.

I began the process of becoming a legal expert witness for nursing after being asked by an attorney to look at a case because someone knew I was an emergency department (ED) nurse. I’m often asked about this type of work and how to get involved in it. I only do expert witness work, opining if nursing met the standard of care. You must be working clinically or teaching to qualify for that role in the specialty field of nursing that you will be testifying about. You don’t want an OB nurse testifying about how to handle an elderly patient’s sepsis.

An LNC focuses more on the legal paperwork process and behind-the-scenes work. That can include things like making a timeline of the events from the chart, contacting expert witnesses, or research. (See below for additional resources if interested in pursuing this career.)

It is a general recommendation that a nurse have five to 10 years of clinical nursing experience before entering this type of work. Most do it part-time, especially initially. In the end, the attorneys need you for your nursing knowledge, not your legal knowledge. Your nursing experience helps you pick up the tidbits in the case, for example, that a drug was being administered too fast. Characteristics that suit this type of work include the patience to be detailed-oriented and to work independently. Only on TV do “cases” get resolved in 60 minutes.

Jumper: How has your background in emergency nursing shaped the way you analyze cases involving failure-to-rescue or missed clinical trends?

Zimmermann: Emergency nursing involves “unknown” patients, so you must develop good history taking and precise physical assessment skills. The “god is in the details”; for example, what is not being said? Or what seems atypical? 

One can begin to subconsciously think the patient is the routine presentation of a common problem and dismiss anything atypical. In ED nursing, you have situations in which variances are meaningful, so you follow up as needed. A good book about developing awareness of common prejudices/subconscious biases is Patient Safety in Emergency Medicine by Pat Croskerry, Karen S Cosby, Stephen M Schenkel, and Rober L Wears (2009, Philadelphia: Lippincott Williams & Wilkins).

Jumper: Many of your cases focus on subtle trend changes rather than dramatic events. Why do you think clinicians sometimes miss these early warning signs?

Zimmermann: We sometimes don’t follow the principles we know to do. Some neglected principles that can lead to missing early warning signs include the following:

• Remember the nursing process of assessment, analysis (diagnose), plan, implementation, and evaluation. It was not just for school. What did you conclude about your assessment? This is the analysis step in the process. I will often see in a nurses’ deposition testimony that they noted “x” but testify that they had “no thoughts” about what that abnormal finding could be signaling. For example, could that person be at risk for infection or ineffective perfusion to cerebral, gastrointestinal, renal, or peripheral tissue? Is that symptom or history feature consistent with a deficient fluid volume? Every nursing intervention also needs a timely evaluation. Did it serve its desired purpose? Do you need to pursue doing something additional or different after completing the order?
• Compare the current findings to the person’s baseline. What often happens is after a shift or two of consistent abnormal findings, such as tachycardia, hypotension, or tachypnea, the abnormality becomes the patient’s new “normal” in perception and shift report. For example, “His pulse is 100, but he runs a little fast.” However, when his baseline pulse was 80 before, you must think about why there has been a sustained, significant change.
• Think about “Worst is first.” The nurse must ask questions/ascertain/monitor that the worst-case scenario for this chief complaint is not occurring. Does the post-operative leg surgery have all the 5 Ps?
• Watch the patient’s trends: is this patient getting better, getting worse, or staying the same? Abnormal findings that do not improve over time are a deteriorating trend. I often see in the caregiving nurses’ depositions a statement that they don’t look at the previous nursing assessment findings because they do their own assessment. You do need to do your own assessment (and not just copy and paste), but how can you know the trend if you don’t see what previous nurses found on their assessments?
• I have seen some nurses’ deposition testimony claiming nurses do not look at or monitor lab values. That is not the standard of care. Nurses are responsible for recognizing and responding appropriately to abnormal results of common lab values as part of the nursing process. This is indicated in the American Nurses Association Scope of Practice, Joint Commission, the Nurse Practice Act/Board of Nursing Rules and Regulations, and the National Council of State Boards of Nursing.

Jumper: The phrase “physical before psych” appears repeatedly in your slides. Can you explain why that principle is so central in litigation cases?

Zimmermann: There are stereotypes that most of us subconsciously have and use in our decision-making. Awareness is a good start. Remember that psychiatric patients can get sick, and not all “old people” are a “little bit confused.” A female patient was labeled as a “hysterical Hispanic” when she was drooling from epiglottitis. Screaming out loud or increased restlessness is often a common early sign of urinary tract infection in someone with dementia.

Pay attention if the family indicates the patient has never been “this bad” before. Be sure an appropriate workup/consideration has been given to physical causes before assuming a psychiatric cause.

Jumper: From a legal standpoint, what are the most common documentation or assessment failures you see that ultimately contribute to lawsuits?

Zimmermann: The old “not documented, not done” mantra often does not apply, but there is limited proof without the documentation, especially if there is a pattern of documentation omissions. Key pertinent information, including the “negatives,” are needed to memorialize what is important and to communicate with other healthcare providers. For instance, nitroglycerine was given. The patient’s lack of chest pain five minutes later needs to be noted. It does not work to say the charting is by exception when it is an essential assessment related to the presentation or intervention.

Any significant notification of a physician should be documented. Document not only that you talked to the physician but also about what issue, result, etc. Some hospitals have specialized forms for physician communication, which can be helpful. Be sure and fill it out with enough details that you will be able to remember what you talked about when asked a few years later. I’ve had cases where the documentation absolved the nurse.

The nurse is to document what the family/patient says, what the nurse assesses, what the nurse does, and what the nurse teaches. Professional organizations’ Nursing Scope and Standards of Care support the documentation requirements.

Jumper: In your experience reviewing cases involving sepsis, opioid-induced respiratory depression, and neuro deterioration, what system-level factors most often contribute to delayed recognition?

Zimmermann: There is a growing trend in the cases I review for the hospital to require a related, condition-specific assessment that is placed as part of the electronic medical record (EMR).

Many hospitals have sepsis screenings embedded at certain timed intervals. Some repeated errors I see with sepsis cases when nursing completes the form is the nurse being falsely reassured by the lack of fever, looking at the white blood cell (WBC) count but missing that the bands/segs (immature WBC) are high or forgetting that a recent invasive procedure or surgery is a possible source of infection. In addition, the atypical is typical for the elderly: they tend not to spike a fever or have elevated WBCs with an infection.

The Pasero Opioid Induced Sedation Scale (POSS) is now required by many institutions before administering any additional narcotic medications because sedation proceeds respiratory depression. Ten years ago, I was teaching the POSS in my speeches as it was not widely known or used, so there has been progress in this area.

Detailed neurological assessment forms are usually available in the EMR to help ensure complete assessments. It is important to wake up patients during the night for the ordered neurological assessment and/or vital signs. They were ordered for a reason. Neuro changes are subtle, and we need to pick them up early in the neurological deterioration progression. There is the saying that if patients just needed a good night’s sleep, they would have checked into the Hilton. They checked into a hospital, so they need a nursing assessment and care. These embedded documentation aids can help if we use them properly.

Jumper: If you could give one piece of advice to bedside nurses to reduce their legal risk while improving patient outcomes, what would it be?

Zimmermann: Do what you know to do. I find in most cases the key issues are not some new or esoteric issue but failure to do what we know to do. Negligence can be (and often is) omissions rather than commissions (what you did do).

Resources

American Society of Legal Nurse Consulting has many educational offerings, including a journal and a “jump start” course.

LNC Exchange list serv. (This is described in Zorn E, Caparco C, and Burbank, S (2016, Spring) Networking and Educational Forums for LNC. The Journal of Legal Nurse Consulting 27:1 pg 26-28.) The cost is $75/year. LNCs often post their need for a certain type of expert on the list serv.

Free newsletter: Medical Practice Insight: Learning from Lawsuits, edited by Charles A. Pilcher, MD. These are true cases that are geared toward ED physicians, but the content is still informative. There are also 200 medical malpractice cases archived and available to read.