One Consultant, Two Requests, and a Contingency Offer

The hospital request: decline, in writing, and do not discuss the case.

• The current engagement makes the hospital an adverse party. Accepting would be a concurrent conflict, and no waiver cures it, because I hold the plaintiff's confidences and could not un-know them.
• Confidentiality did not end with any earlier matter; it attaches to the client's information permanently.
• My written decline should be short, should not reference the existence or subject of the pending case, and should not disclose the name of my client. Tell the friend the answer is a professional one, not a personal one.
• Note the secondary risk: a friend who is a risk manager may later be a witness, and any informal conversation now becomes discoverable and impeachable.

The prior engagement and the unpaid invoice.

• Disclose to current counsel now: the date, scope, duration, and that the work was for a different firm on the same patient's NICU course. Counsel decides whether a waiver or a screen is needed and whether the prior firm must be notified.
• Identify whether I hold anything from that matter that is the prior firm's work product or the prior client's confidence. I do not reuse it in the new engagement without permission.
• The unpaid invoice is a business dispute and must be kept separate. I may discuss it with the prior firm as a billing matter; I cannot use the new engagement or the records as leverage, and the debt must not influence any opinion I give now.
• Document all of it. The paper trail is the defense against a later disqualification motion.

Three separate problems, three separate answers.

1. Drafting the client's interrogatory answers. Interrogatory responses are verified by the party and prepared under counsel's direction; drafting them is the practice of law, and a nurse consultant is not licensed to do it. What I can properly do is assemble the factual raw material - a dated chronology with Bates cites, a list of providers and facilities, a summary of the treatment record, and a schedule of the plaintiff's caregiving history - and hand it to counsel. The attorney converts it into answers.

2. Writing the physician's report 'in counsel's voice.' A retained expert's report must reflect the expert's own analysis, prepared by or under the direction of that expert, and signed by that expert. A report drafted by counsel and merely signed is vulnerable on cross and may not satisfy the disclosure rule at all. My legitimate role is to prepare the records digest, the chronology, and a list of the specific records and questions the physician must address.

3. Signing for another expert. Categorically no. Signing a document that represents itself as another professional's opinion is misrepresentation, regardless of a promise that he will 'sign later.'

Overall message to counsel: I will do everything that is within the LNC role and nothing that is outside it, and I will put that boundary in an email so the record is clear. Say no once, clearly, and offer the alternative in the same message.

Decline the contingency bonus.

• Compensation contingent on the outcome converts the consultant from an independent analyst into a party with a financial stake in the verdict, and it is squarely impeachable: on cross, every opinion becomes 'you are paid more if the jury believes you.' The fee arrangement would be worth more to the defense than any single opinion I could give.
• It also creates a structural conflict at the merit-review stage. My value to counsel depends on my willingness to tell him the case is weak. A success bonus purchases the opposite incentive.
• The cleaner structure is hourly or flat-fee, with a written fee schedule and a retainer - and, if counsel wants, a defined scope for the trial-testimony phase billed separately.

The revised engagement letter should address:

• Role clarity - consulting expert versus testifying expert, and that opinions are mine, not counsel's.
• Scope - the deliverables, the cases covered, and a scope memo for anything added later.
• Fee and payment terms, including what happens if an invoice goes unpaid.
• Confidentiality and privilege - that communications are attorney work product, that I will maintain separate files, and that I will not disclose the engagement or the client's identity.
• Conflicts - my duty to disclose prior and concurrent engagements on the same patient or facility.
• Licensure and standards - the state nurse practice act, my professional obligations, and my duty to withdraw from an engagement if asked to give an opinion I cannot support.