Source: CMSA Today
Title protection for professional case managers has been discussed for decades, but little has been done. The term case manager is utilized in many industries and is a fixture in the court system. In that circumstance, the term case manager literally means a person who manages the cases and their flow through a division of the court system. When we talk about case managers, we are referring to a health or allied health professional, who is defined by CMSA as “healthcare professionals who serve as patient advocates to support, guide and coordinate care for patients, families and caregivers as they navigate their health and wellness journeys” (CMSA, 2021, p. 1). In a new collaboration, case management is redefined as “a dynamic process that assesses, plans, implements, coordinates, monitors, and evaluates to improve outcomes, experiences, and value. The practice of case management is professional and collaborative, occurring in a variety of settings where medical care, mental health care, and social supports are delivered. Services are facilitated by diverse disciplines in conjunction with the care recipient and their support system. In pursuit of health equity, priorities include identifying needs, ensuring appropriate access to resources/services, addressing social determinants of health and facilitating safe care transitions. Professional case managers help navigate complex systems to achieve mutual goals, advocate for those they serve, and recognize personal dignity, autonomy, and the right to self-determination” (CCMC/ACMA, 2022, p. 1)However case management defines itself, the issue remains: how are we viewed by the law?
Recently, the New Jersey Appellate Division has made one issue that impacts case management practice very clear. If we are to be professional case managers, we must first be professionals. It is very likely had the nurse in this case been a registered nurse (RN), and had that RN acted in the same manner, liability might very well have been placed with the nurse. Remember that RNs, as independent practitioners (professionals), are responsible for their actions and inactions under the theory of professional liability (aka: malpractice).
However, in that case, a licensed practical nurse (LPN) who was present during same-day-surgery, took it upon herself to form an opinion about the status of a post-op patient, gave medical advice via the patient’s spouse and prescribed over-the-counter medications, all without ever consulting the surgeon or any other physician (Gilligan v. Junod, 2022). The court examined the facts in this case and made the determination that the actions of the LPN were clearly outside the scope of practice for an LPN and went on the reaffirm the state statute that defines RNs as professional nurses and distinguishes the fact that LPNs are not professionals. LPNs must always be supervised by an RN, and although they may perform complex tasks under the direct supervision of an RN, they cannot make independent treatment decisions. That is not to say that there are not fine, competent and hard-working LPNs across the country, but the scope of practice is an area that we, as case managers, must take seriously.
Case manager is a secondary title or credential. Under the law, we are first assessed based on our underlying license/credential, such as a licensed clinical social worker (LCSW); usually, this designates someone working at the top of their license, or as an RN, medical doctor (MD), therapist (PT, OT, RT or other), pharmacist, etc. The range of those practicing as case managers has broadened greatly in the last 2 decades. Whatever our underlying credentials, we are bound by the Practice Act of the state(s) in which we are licensed. The court in the Gilligan case made reference to a registered professional nurse pursuant in the New Jersey Nurse Practice Act (New Jersey Statutes Title 45 § 11-23). The Act defines “The practice of nursing as a registered professional nurse is defined as diagnosing and treating human responses to actual or potential physical and emotional health problems, through such services as case finding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed or otherwise legally authorized physician” (N.J.S.A. 45:§ 11-23). New Jersey law has a separate and distinct statute and definition of the licensed practical nurse and practice by them. Therefore, it was rather straightforward for the court to distinguish between the practice of professional nurses and licensed nurses. The court relied heavily on this distinction.
As a comparative example, the state of Illinois defines nursing as: “The practice of professional and practical nursing in the State of Illinois is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of nursing, as defined in this Act, merit, and receive the confidence of the public and that only qualified persons be authorized to so practice in the State of Illinois. This Act shall be liberally construed to best carry out these subjects and purposes” (225 ILCS 65/) Illinois Nurse Practice Act.
Liability for a non-professional is based upon a simple negligence standard. It is the same standard one is bound to when operating a motor vehicle. When we confront a stop sign, we understand that we have duty of care and stop to look both ways before proceeding. This standard is easier to prove and requires the identification of a duty, the duty of care by a reasonable person. In the case of the LPN, the same standard would be applied to his/her practice. What is reasonable for an LPN under the same set of circumstances? Did the LPN (or driver) breach their duty of care, and was a person harmed due to their failure to adhere to the duty of care?
What is the impact of being a professional? Professionals are held to a higher standard. This is based upon the education and training that goes into becoming a professional. Lawyers, accountants, physicians and professional nurses are all held to this professional negligence standard. In addition to a recognized duty of care, there is a requirement under both federal and state rules of evidence that an expert witness gives testimony to establish the appropriate duty for the particular professional. A professional malpractice case cannot go forward to trial without a statement from a professional, commonly referred to as an Affidavit of Merit. In this document filed at the very start of the lawsuit, a professional states under oath, in the form of an Affidavit, that he/she is a licensed professional, familiar with the alleged facts of the case, and believes, based upon their extensive education and experience, that the plaintiff (the party who believes they were harmed) has a reasonable likelihood of success. That does not take away the fact-finding authority of a jury, but rather demonstrates a baseline to get the case to trial.
The decision in the Gilligan v. Junod case relieved the plaintiff of the burden of finding an expert, having that person submit an Affidavit of Merit, as well as, eliminating the requirement that an expert witness testify at trial, thus reducing plaintiff’s burden of proof to a simple negligence standard.
As case managers, we want to present ourselves to the public as professionals who are reliable and held to a higher standard of professional performance. We seek certification as a statement that we have not only achieved our professional education but pursue and even elevated evidence of expertise through recognized certifications. The continuing education component of our professions and certifying bodies is additional proof that case management is here to stay and each year, seeks to improve itself through education and modeling professional practice.
CCMC/ACMA. (2022, September). Retrieved from CCMC Certification: https://ccmcertification.org/about-ccmc/about-case-management/scope-practice-overview#
CMSA. (2021). What is a Case Manager? Retrieved from CMSA.ORG: https://cmsa.org/who-we-are/what-is-a-case-manager/
Gilligan v. Junod, DOCKET NO. A-1907-21 (New Jersey Appellate Division November 9, 2022).
Lynn S. Muller, JD, BA-HCM, CCM, began her career at Pace University as a registered professional nurse (RN), went on to earn her bachelor of arts degree in health care management at St. Peter’s University of New Jersey and then her Juris Doctor from Quinnipiac University School of Law in Connecticut. She is currently a practicing attorney and the managing partner of Muller & Muller. Her practice includes defense of healthcare professionals before the state licensing boards, case management litigation, family law, wills, trusts and estates, as well as consulting representation of medical practitioners, facilities and health service corporations on such issues as regulatory compliance and day-to-day operations.
Dr. Muller is a popular and sought-after keynote and session speaker at national and regional conferences. She is the contributing editor of Professional Case Management, the Official Journal of the Case Management Society of America (CMSA) and the Commission for Case Management Certification (CCMC), and a former member of the board of directors of CMSA of New York City. She is an adjunct professor at Saint Peter’s University School of Nursing in the MSN and DNP Programs. Dr. Muller is the author of over 85 articles in nursing and case management journals and was featured in the Journal of Nurse Administrators. She is a contributor to the 2016 CMSA Standards of Practice and CMSA Career & Knowledge Pathways, the author of the Legal & Ethical Chapter of the 6th ed. of the Case and Population Health Chapter for Leadership and Nursing Case Management by Diane L. Huber, published by Elsevier.
Dr. Muller is the author of both legal chapters of the 3rd edition of Case Management: A Practical Guide for Education and Practice and 3rd edition of the CMSA Core Curriculum for Case Management. She is a former Commissioner for the Commission for Case Management Certification (CCMC), where she now serves on the Professional Development and Education Committee, is a certified facilitator for CCM CERTIFCATION 360TM A Multi-day Immersion Program and other special projects. She is a contributor to the CCMC Case Management Body of Knowledge (CMBOK) and a past president of the New Jersey Chapter of CMSA. Dr. Muller is the former director of social services for the Borough of Bergenfield, NJ, a community-based case management program she developed and initiated. Dr. Muller has also served her community as public defender, municipal court judge, councilwoman and chaired the Borough’s Barrier Free Committee. She is married to her law partner and is grandmother of four.