When Clinical Consulting Becomes Expert Opinion in Liability Claims

Legal nurse consulting and other forms of behind-the-scenes clinical review have become routine components of early claims evaluation in healthcare liability matters. Insurers and claims professionals frequently rely on clinicians such as nurses, physicians, and specialty consultants to clarify complex medical records, identify potential exposure, and inform strategy well before expert disclosures occur. When used appropriately, this internal clinical analysis improves efficiency, focus, and decision making.

While this framework applies to any behind the scenes clinical reviewer, legal nurse consulting represents the most prevalent and operationally embedded form of informal clinical analysis in healthcare liability claims and is therefore used as the primary reference point throughout this discussion.

As reliance on informal clinical review has expanded, an under recognized procedural risk has emerged. Analysis performed by non-testifying clinical reviewers may function as undisclosed expert opinion once claims mature and scrutiny increases. Courts and opposing counsel evaluate substance rather than role or intent. Clinical conclusions embedded in internal review, even when labeled educational or preliminary, may be treated as opinion if they resolve disputed questions typically reserved for experts.

This article introduces a functional evaluation framework, referred to here as the McCullum Standard, designed to help claims professionals classify clinical consulting work based on what it does rather than how it is labeled. The framework is evaluative rather than prescriptive. It does not assess clinical correctness. Its purpose is to improve consistency, defensibility, and clarity when clinical analysis is reviewed under scrutiny.

Clinical Consulting as an Educational Function

At its core, clinical consulting in the claims context is preparatory and educational. Its role is to translate complex medical records, clinical workflows, and healthcare context into intelligible information for legal and claims decision makers.

Defensible consulting work typically includes organizing and synthesizing records, constructing accurate clinical chronologies, explaining clinical roles and practice variability, identifying unanswered questions, and clarifying when escalation to expert testimony may be appropriate.

Educational analysis preserves uncertainty. It explains what the record shows and where it is silent or ambiguous. It does not determine whether care was appropriate, whether a standard was met, or whether actions caused harm.

This restraint is not a limitation of expertise. It is what preserves the work as consulting rather than opinion.

Expert Opinion as an Evaluative Function

Expert work serves a different function. It is evaluative and opinion based, intended for disclosure and adversarial scrutiny. Expert opinions resolve contested questions about standard of care and causation and are subject to deposition, cross examination, and admissibility standards.

The distinction between consulting and expert work is not hierarchical. The roles are complementary. Problems arise when evaluative conclusions are embedded within educational analysis without disclosure, creating confusion about function and increasing downstream risk.

Why Disclaimers Do Not Control Classification

A common attempt to manage this boundary is the use of disclaimers stating that an analysis is for educational purposes only. Disclaimers address form rather than function.

In practice, classification turns on observable characteristics. Reviewers examine whether the analysis resolves contested clinical questions, whether the language used asserts appropriateness or failure, whether conclusions substitute for expert opinion, and whether the work is relied upon determinatively in claim posture or valuation.

If analysis answers questions reserved for experts, it will be treated as opinion regardless of disclaimers.

Language as the Practical Boundary

In practice, the education opinion distinction is enforced through language. Certain patterns reliably signal evaluative drift.

Educational language describes and contextualizes. It preserves ambiguity and explains variability. Opinion-oriented language asserts correctness, universalizes norms, and collapses uncertainty into conclusions.

Terms such as failed, required, should have, and outside the standard function evaluatively even when cautiously used. Outcome-driven documentation critique and implied causation by proximity similarly convert educational analysis into de facto opinion.

The McCullum Standard as an Evaluative Tool

The McCullum Standard functions as a post hoc evaluation instrument rather than a practice directive. Its purpose is not to influence how clinical consulting work is performed, but to provide a consistent framework for interpreting that work once it exists and is subject to review.

In practice, clinical consulting materials are often reviewed long after they are created and by individuals who were not involved in their development. Claims may be reassigned, files audited, counsel substituted, or decisions revisited as litigation evolves. In those moments, the original intent of a document becomes less relevant than how the work reads and functions when examined independently.

The McCullum Standard addresses this gap by focusing on observable characteristics. It evaluates the functional purpose of the work, the degree of clinical judgment exercised, the language used to express certainty, the extent to which the analysis was relied upon in decision making, and the potential exposure created if the work were disclosed. These elements reflect how documents are actually assessed under scrutiny.

By converting intuitive judgments into structured criteria, the framework improves consistency across reviewers. Different professionals may disagree about the quality or correctness of analysis, but they are far more likely to agree on whether a document functions as informational, analytical, adjudicative, or expert equivalent when guided by shared evaluative questions.

Importantly, the framework recognizes that a single document may evolve across functional categories. A memorandum may begin as screening or analytical review and later cross into adjudicative analysis through language choices or conclusions. The Standard does not assign fault for this progression. It makes the progression visible.

This visibility is the primary value of the tool. It allows organizations to understand what their clinical consulting work has become over time and how it may be perceived by external audiences. It also provides a neutral basis for decisions about revision, reclassification, or escalation without questioning the competence or intent of the reviewer.

A longer white paper expands this framework in detail. The full paper sets out the complete scoring rubric, interpretive guidance for each evaluative domain, and multiple hypothetical applications illustrating how the Standard may be used during claims review, discovery assessment, and internal audit. The condensed framework presented here is intended to introduce the evaluative approach, while the full paper provides the operational detail necessary for consistent application.

Relevance for Claims Professionals

For claims professionals, the relevance of the McCullum Standard lies in its ability to reduce interpretive friction across the lifecycle of a claim. Clinical consulting work is often created early, relied upon informally, and later revisited under significantly different conditions. Without a shared evaluative framework, this transition introduces uncertainty that is procedural rather than substantive.

The Standard provides claims professionals with a structured way to assess how clinical analysis is functioning at each stage of a claim. It supports clearer internal communication by replacing subjective impressions with common terminology. Instead of debating whether a document feels risky or opinionated, reviewers can articulate how and why the work functions at a particular evaluative level.

This clarity improves decision making around reliance. Claims professionals can better assess whether early analysis should inform strategy, trigger expert engagement, or be limited to contextual understanding. The framework does not dictate those decisions, but it informs them by clarifying what role the analysis is already playing.

The Standard also supports defensibility during file review, audit, and transition. When claims are reassigned or reviewed by new counsel, the framework provides context for how internal clinical materials should be interpreted. This reduces the likelihood that consulting work will be misread as undisclosed expert opinion or relied upon inappropriately.

From a governance perspective, the framework enables consistency across teams and vendors without imposing uniform practice requirements. It can be used to compare work products, align scope expectations, and identify functional drift over time. Because it evaluates function rather than performance, it avoids conflating quality control with role definition.

Most importantly, the Standard reflects how claims organizations already think. It formalizes judgments that are routinely made but rarely articulated. By doing so, it reduces reliance on individual intuition and supports more consistent institutional decision making.

For organizations seeking deeper operational guidance, the accompanying white paper provides a structured scoring instrument that can be applied directly to existing clinical consulting materials. The full paper is designed as a reference document for claims leaders, counsel, and reviewers who require a more granular tool for classification and internal consistency, particularly in complex or high exposure matters.

Conclusion

Behind the scenes clinical consulting plays a critical role in modern healthcare liability claims. Its value lies in clarity, context, and preparation rather than adjudication. As reliance on informal clinical analysis continues to grow, the need for disciplined evaluation of how that work functions once it exists becomes increasingly important.

The McCullum Standard does not seek to expand or constrain the scope of clinical consulting. It offers a practical method for classifying work based on observable characteristics rather than intent or label. By standardizing evaluation rather than practice, it provides claims professionals with a shared reference point that supports greater consistency, defensibility, and clarity in decision making.

The utility of the framework will not be measured by formal adoption or declared authority, but by whether it helps organizations better understand and manage the clinical analysis they already rely upon. In that sense, the Standard is not aspirational. It is descriptive of existing realities and designed to make those realities more legible.

This article presents a condensed version of the framework suitable for general application. A companion white paper expands the Standard in full, including a detailed scoring rubric, interpretive guidance, and hypothetical applications. Together, these materials are intended to support clearer classification of clinical consulting work and more disciplined reliance on the analysis that shapes claims decisions.

The authority of the framework, if it earns one, will rest not on assertion or adoption, but on whether it proves useful to those charged with evaluating clinical analysis in real claims environments.

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Accompanying Framework: Evaluating Clinical Consulting Work

This article references an evaluative framework designed to help claims professionals assess clinical consulting materials based on how they function once reviewed or relied upon. The framework does not assess clinical correctness or professional competence. It is intended to support consistent classification and defensibility.

Key questions for review include:

• Does the analysis explain and contextualize the medical record, or does it resolve disputed clinical questions
• Does the language preserve uncertainty, or does it assert judgment and conclusions
• Are inferences framed proportionately to the evidence, or presented as determinations
• Does the analysis reflect clinical scope and practice variability, or universalize expectations
• Is the work used informationally, or relied upon determinatively in claim posture or valuation

A single document may evolve across these dimensions over time. The framework does not assign fault for that progression. Its value lies in making functional shifts visible so reliance can be adjusted appropriately.

A companion white paper expands the framework in full, including a structured scoring rubric, interpretive guidance, and hypothetical applications, and is available upon request.

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Meet the Author

Marilyn McCullum, BSN, RN, CEN, CPEN, TCRN

Triple Board-Certified Emergency Nurse Expert

Marilyn McCullum, BSN, RN, CEN, CPEN, TCRN is a nurse expert in healthcare liability matters who remains clinically active. Her work includes expert opinion, clinical record analysis, and litigation support, with a focus on standards of care, clinical decision making, and how expert analysis is evaluated and relied upon in professional liability claims and litigation. She works with insurers, attorneys, and claims professionals in matters involving healthcare delivery and professional responsibility.