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Stepping up to be a nurse expert witness

Phillips, Emily BSN, RN, ENPC, TNCC; Stark, Sharon W. PhD, RN, APRN-BC, CFN, CPG

doi: 10.1097/01.NURSE.0000432076.72763.62
Feature: PROFESSIONAL GROWTH
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If you're intrigued by courtroom proceedings, consider sharing your nursing knowledge as an expert witness. Read this article to discover what qualifications you need and how to get started.

Emily Phillips is a staff RN at MICU Froedtert Hospital in Milwaukee, Wis. Sharon Stark is associate dean and coordinator of the nurse practitioner and forensic nursing programs at the Marjorie K. Unterberg School of Nursing and Health Studies at Monmouth University in West Long Branch, N.J.

The authors have disclosed that they have no financial relationships related to this article.

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NURSES ARE UNIQUELY qualified to be expert witnesses because of their knowledge of the nursing process, attention to detail, and critical thinking, assessment, and problem-solving skills. Those who can speak with confidence about their educational and professional background and provide objective testimony during litigation are qualified to provide pertinent information and opinions in their specialty area.1,2

This article describes the qualifications and duties of nurse expert witnesses and the differences between fact and expert witnesses. It also outlines legal processes and other considerations so you can decide if you'd like to venture into the legal arena.

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Role for nurses

RNs have served as expert witnesses in medical litigation for more than 30 years. Such litigation usually involves identifying whether acceptable standards of nursing were followed in care rendered to patients.3,4

Planning to become a credible nurse expert witness begins with proficiency in nursing practice through hands-on experience, which includes honing an area of practice expertise and advancing one's education. Education, training, and experience providing direct patient care are significant qualifications that make nurses both experts and credible witnesses.1,4,5

Nurses with extensive practice experience have highly developed nursing skills and thorough knowledge of standards of patient care and nursing practice. They also understand medical terminology, documentation requirements, diagnostic procedures, and pharmacologic and nonpharmacologic interventions.6 The nurse expert witness should be able to simplify complex issues and provide clear explanations that can be understood by legal professionals and ordinary people sitting on juries.

Although expert witnesses can be subpoenaed to appear, they're more likely to be hired by defense attorneys or prosecutors to review the evidence and give testimony. Joining a professional organization such as the American Association of Legal Nurse Consultants will provide opportunities to network with other professional nurses who are expert witnesses and to become familiar with methods of becoming recognized as an expert. Law firms, government agencies, insurance companies, health facilities, and patient safety organizations are just a few types of groups that seek expert witnesses.

Responsibilities of the nurse expert witness may include

  • reviewing facility or agency policies, procedures, and protocols relative to an incident
  • evaluating health records for accuracy, consistency, and missing data
  • researching literature pertinent to the case
  • examining state statutes, nurse practice acts, and if applicable, nursing scope and standards of practice for specialized areas of nursing practice.7

To better understand what expert witnesses do, contrast their duties with those of fact witnesses.

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Sorting out the facts

Fact witnesses have first-hand knowledge about the events and/or facts in a case. They can testify about sensory perceptions, such as what they saw, heard, smelled, tasted, and felt. Their purpose is to testify to what happened during a situation or event, typically things noted during direct patient contact.

Unlike expert witnesses, fact witnesses shouldn't draw conclusions or form opinions. If they offer an opinion, it's based solely on what they perceive occurred based on what they experienced through their senses.3,4,8

Expert witnesses, in contrast, usually have no first-hand knowledge about the case and are expected to provide an opinion and draw conclusions from the facts based on their expertise.7 Because of their specialized knowledge and education, they serve as authorities in court when testifying about information pertinent to a case. Unlike fact witnesses, expert witnesses are paid for their expertise in evaluating facts and testifying in a case.9 Expert witnesses command knowledge, expertise, and skills surpassing those of the average layperson.1,3,4,8

Generally speaking, an expert witness must be licensed and have training and recent experience in a relevant discipline or have credentials that qualify him or her as expert in a specialized area.7,9 (See Qualifying as a nurse expert witness.) An example of expert testimony is a pediatric nurse who provides testimony about screening protocols for growth and development milestones during well child visits. (See Playing by the rules.)

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Establishing credibility

Expert witnesses' credentials and qualifications establish that their testimony is based on evidence and sound scientific principles and that they're qualified through knowledge, training, skill, experience, and/or education to render an informed opinion. State statutes delineate credentials that an expert witness must possess to testify as an expert. Nurse expert witnesses are qualified as experts through education, experience, current practice, and membership in professional organizations.10

The final decision to admit any professional as an expert witness is made by the judge of the trial.35,7,11 For example, in State v. Bragg, the court ruled that a pediatric nurse practitioner with 40 years of pediatric nursing experience and 23 years of experience assessing victims of child maltreatment was qualified to be a nurse expert witness.3,11

In Sullivan v. Edward Hospital, the court ruled that a physician wasn't qualified to testify about whether a nurse could take patient safety concerns up the “chain of command” as an alternative to using restraints or supervising patients.12 Though physicians' education and credentials qualify them to be experts in their own medical practice, it doesn't qualify physicians to be experts on nursing practice and protocols.

Before hiring a nurse expert witness, legal teams want to be assured that a nurse's reputation is beyond reproach. Prior legal or professional problems make it less likely that a potential expert witness will be selected. If a nurse expert witness has ever had such problems, these issues should be revealed at the time of hire so that there are no surprises brought forward later (such as at a trial).4,5,13

A curriculum vitae (CV) is another way a nurse establishes and maintains credibility as an expert witness. A CV is an organized summary of past and present work experiences, education and training, certifications, attendance at professional conferences, and professional presentations and publications in one's area of expertise. Nurses can support their expert status by keeping records of trials, depositions, and cases in which they participated, including names of the litigants (such as plaintiffs, defendants, attorneys, and judges in a deposition or trial).1,3,4 For more information on making the right impression, see Nailing the details.

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What's expected of a nurse expert witness?

Adhering to the scope of practice within one's specialty and having solid knowledge of the appropriate standards of care are crucial for a nurse expert witness's credibility.4 All nurses should have knowledge of nursing scope and standards of care because these delineate the professional role and practice of all nurses.14 Nursing standards of care clearly identify whether nursing care was provided at the expected level of care that a reasonably prudent nurse in similar circumstances would provide.15

A nurse expert witness can testify about whether a nurse has breached or complied with standards of nursing care.7 The provision of ethically sound care, as outlined in the American Nurses Association Code of Ethics and knowledge of the Federal Rules of Evidence as they apply to testimony, evidence collection, and preservation, are also important for the nurse expert witness to consider.1619 A thorough understanding of the processes for subpoenas and depositions, as well as appropriate courtroom attire, further promotes and maintains the nurse's credibility and professionalism.

Testimony on medical causation was previously reserved for physicians, based on their extensive education and practice experience.3 But recently, the Pennsylvania Supreme Court overturned a prior ruling that a nurse wasn't qualified to testify in the malpractice case of Freed v. Geisinger, in which a car crash patient sued after developing pressure ulcers that became infected.20 The Pennsylvania Supreme Court ruled that the nurse can provide an expert opinion on the standard of nursing care and the cause of injuries sustained.21

Because expert witnesses help judges or juries understand evidence or determine facts, they must stay current in their specialty area, maintain accuracy in all aspects of their perspective (especially during courtroom testimony or when giving testimony during a deposition), have a clear understanding of what they know and don't know, and admit it if they can't answer a question or find it's outside their scope of practice.1,4,17

No matter what the circumstances, expert witnesses should never sway from their ethical standards. For example, as in any area of nursing practice, they can't alter documents in any way. In addition, they must

  • tell the truth without “stretching” it to fit
  • refrain from overstating their opinions
  • be consistent from case to case
  • rely on facts as they're presented.22
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Come to terms with legal processes

Familiarity with court proceedings and processes increases the nurse's confidence in testifying and promotes a professional and credible appearance in front of the judge and jurors.

Subpoenas are court orders that mandate that a person appear in court. Subpoenas include the name of the defendant, the court that will try the case, and the names of both the investigator and attorney. For the duration of the trial, whether hired or subpoenaed, the expert witness must be available for testimony via telephone standby so that he or she can be in court when contacted.1

In the discovery phase of a case, the expert witness may be called to provide a deposition, which is a way for witnesses to give sworn testimony without going before a judge and jury.7 Depositions let counsel discover what the nurse expert witness's testimony reveals about the case.1,15 A deposition can last from minutes to hours. When it's over, the expert witness should request a copy of the transcript for review in case he or she needs to clarify any portion of the testimony. Any conflicts between deposition testimony and court testimony will most likely be exploited by opposing counsel and could even be grounds for a charge of perjury.10 At this stage, opposing lawyers may bargain or negotiate a settlement. If a settlement can't be reached, the case will go to trial.

When a case goes to trial, the nurse expert witness assists in preparing for trial. During pretrial preparation, the expert witness should review the deposition to ensure the information is fresh in his or her mind before testifying. Copies of any documents reviewed pretrial shouldn't be brought into the courtroom because if they are, they'll be considered “discoverable.”1,7,15,22 Evidence that's discoverable during the pretrial process isn't automatically admissible at trial. The defense and prosecution pursue what they believe to be the most important evidence for presentation. Discovery may include interviewing witnesses and examining documents and other evidence.10

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Ready for a new role?

The multifaceted role of the nurse expert witness requires diligence, organization, and preparation. Consider all the angles before applying your nursing knowledge to this intriguing field.

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Qualifying as a nurse expert witness

At a minimum, these qualifications are highly recommended for nurse expert witnesses because they strengthen their credibility:

  • a BSN or higher degree
  • certification in a specialty area
  • at least 5 years' current clinical experience
  • publications and/or research experience
  • good communication skills
  • strong critical thinking and organizational skills.
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Playing by the rules

  • Federal Rules of Evidence 701 refers to witnesses testifying based on their perceptions of an event.4,17,18
  • Federal Rules of Evidence 702 refers to witnesses who qualify as experts through knowledge, skill, experience, training, or education. Expert witnesses provide factual information and opinions based on reliable principles and methods and sufficient facts.4,17,19
  • For more information, see Cornell University Law School. Legal Information Institute. Federal Rules of Evidence. Rule 701. Opinion testimony by lay witnesses. http://www.law.cornell.edu/rules/fre/rule_701 and Cornell University Law School. Legal Information Institute. Federal Rules of Evidence. Rule 702. Testimony by expert witnesses. http://www.law.cornell.edu/rules/fre/rule_702.
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Nailing the details

Don't overlook the detail of appropriate professional attire. Inappropriate attire can detract from the credibility of the expert witness. Nurse expert witnesses should avoid wearing any clothing with a political or religious theme or team names, uniforms, scrubs, and white coats. Hairstyles and jewelry should be conservative and modest.

Allow ample time for traffic, parking, and moving through security to the courtroom. Always address all members of the court with respect and courtesy.1,13,23

Follow these tips for court testimony:

  • Speak clearly. Be concise and to the point.
  • Make eye contact with jurors. Don't feel rushed to answer questions.
  • Answer only the question that's asked, and don't volunteer more information than requested.
  • If the question isn't clear, ask to have it rephrased or clarified.
  • Use lay terms whenever possible, and explain medical terminology and procedures.
  • Don't be condescending, and maintain composure even when under fire.10
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REFERENCES

1. Ruiz-Contreras A. The nurse as an expert witness. Top Emerg Med. 2005;27(1):27–35.
2. Miracle VA. Serving as an expert witness. Dimens Crit Care Nurs. 2007;26(5):191–193.
3. Cohen M, Rosen L, Barbacci M. Past, present, and future: the evolution of the nurse expert witness. J Leg Nurs Consult. 2008;19(4):3–8.
4. McConnell TC, Vaughn S. Standards for nurse expert witnesses: a recommendation. J Leg Nurs Consult. 2010;21(2):3–7.
5. Fedorka P. The expert witness: a crucial role in successful litigation. J Leg Nurs Consult. 2008;19(4):20-21, 34.
6. Brous EA. Malpractice insurance and licensure protection. Am J Nurs. 2008;108(5):34–36.
7. Murphy EK. The expert nurse witness. AORN J. 2005;82(5):853–856.
8. Lynch VA, Duval JB. Forensic Nursing Science. 2nd ed. St. Louis, MO: Elsevier Mosby; 2011.
9. Friedman E, Kontorovich E. The economic analysis of fact witness payment. J Leg Anal. 2011;3(1):139–164.
10. Hammer RM, Moynihan B, Pagliaro EM. Forensic Nursing: A Handbook for Practice. 2nd ed. Burlington, MA: Jones and Bartlett Learning; 2013.
11. State v. Bragg-Ohio-WL 831023-Ohio County (2004).
12. Sullivan v. Edward Hospital-Illinois-806 NE2d 645 (2004).
13. Paterson MA, McMullen P. So you want to be a legal nurse consultant or an expert witness. J Nurse Pract. 2007;3(1):29–32.
14. American Nurses Association. Nursing:Scope and Standards of Practice. 2nd ed. Silver Spring, MD: American Nurses Association; 2010.
15. Dearmon V. Risk management and legal issues. In: Roussel L, ed. Management and Leadership for Nurse Administrators. 6th ed. Burlington, MA: Jones and Bartlett Learning; 2013:557–586.
16. American Nurses Association. Code of Ethics for Nurses with Interpretive Statements. Silver Spring, MD: American Nurses Association; 2001.
17. Bocchino AJ, Sonensheine DA. Federal Rules of Evidence with Objections. 8th ed. Louisville, CO: National Institute for Trial Advocacy; 2009.
20. Freed v. Geisinger Medical Center 601 Pa. 233, 971 A.2d 1202 (2009).
22. Clifford R, Wagner KC, Hunter-Adkins D. Effective preparation of the expert witness for deposition. J Leg Nurse Consult. 2008;19(4):26–29, 34.
23. Garbacz Bader DM, Gabriel S Forensic Nursing: A Concise Manual. : CRC Press/Taylor & Francis Group; 2010.
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