In today's litigious world, more and more professionals are being called upon to testify as both fact and expert witnesses. Both state and federal law require the testimony of a like-kind professional to establish the standard of care or standard of professional practice. Case management, although not entirely recognized as a separate and distinct profession (as each practitioner must have an underlying profession to qualify as a case manager), is no stranger to lawsuits. More and more, attorneys across the country are identifying case managers as potential defendants in professional liability lawsuits. The most common area of liability appears to be in those cases where case managers make decisions on the basis of cost-savings alone, without regard to quality. Clearly, such an action is contrary to the established standard of practice of both the Case Management Society of America (CMSA, 2002) and the Commission for Case Management Certification (CCMC, 2004). The CMSA, a professional organization, and the CCMC, a credentialing body, share the position that cost-effective case management must include a comparative analysis that considers the needs of the individual client, quality of service/product considered, and the impact on the payor. Should a malpractice lawsuit be filed, naming a case manager as a defendant, another case manager would be called upon as an expert witness to establish the appropriate standard of practice. It is not enough that the CMSA has printed the "standards." A case manager, available for live testimony, would be required to give his or her opinion, through a report, perhaps at deposition and ultimately at trial, as to the application of the standard to the facts of the particular case. Refer to Figure 1.
Qualifications for an Expert Witness Varies From State to State
The essence of a profession is the requisite education and training to enter the field, along with the standard of practice performed by the majority of practitioners in that field. The question is: What would a reasonable practitioner do in a similar situation, faced with approximately the same variables? As a profession develops and regulates its practice, standards are established, tested, amended, and retested. The standard of practice for the treatment of a particular disease process has been modified numerous times, as methodologies, medications, and treatments are discovered, tested, and incorporated into practice.
In 1993, the U.S. Supreme Court decided the case of Daubert vs. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which changed the standard for admissibility of expert testimony under the Federal Rules of Evidence (FRE), and many states have either adopted the FREs outright or enacted their own laws, which draw upon the federal rules for the most part.
Daubert established the legal precedent, often referred to as the "Daubert Standard" for admissibility of expert testimony. For 70 years, prior to Daubert, the standard for admissibility was based on the decision in Frye vs. United States, 54 App. D.C., 293 F.1013 (1923), which held that scientific evidence must be "sufficiently established to have gained general acceptance in the particular field in which it belongs" (Daubert/Fyre, 2006). That worked well if the expert was testifying that penicillin was the drug of choice for the treatment of bacterial infections and the theory was well-tested and confirmed time and time again, laboratory after laboratory performing culture and drug sensitivity tests, throughout the medical community and finding that penicillin was in fact the accepted standard for the treatment of certain bacterial infections, such as wound infections. Today we know that there are numerous bacteria that are resistant to antibiotics. So what happens to the accepted standard of practice? It changes.
When the examination is something new and different, 21st-century technology, such as DNA or digital communications, the problem is that there is nothing to compare the process to, until it has been on the market for a period of time and the scientific community has opportunity for evaluation and debate.
The so-called Daubert Standard requires the court "in assessing whether expert testimony is based on reliable and scientifically valid methodology that corresponds ('fits') to the facts the Supreme Court listed four guideposts (not required factors) for the District [trial judge] to consider: (1) whether the methodology can and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error of the methodology; and (4) whether the technique has been generally accepted in the proper scientific community." Amico v. Duracal Cement, Slip Copy, 2006 WL 2319313 D.N.J., August 09, 2006; citing, Daubert, 509 U.S. at 593-94.
The most common area of liability appears to be in those cases where case managers make decisions based on cost-savings alone, without regard to quality.
Not all states followed suit and there is now a distinction between Daubert States and Frye States. Connecticut, Texas, Louisiana, and New Mexico are Daubert States. Arizona, California, and New York are among those states that have retained the Frye Standard. There is another group, including Georgia, Wyoming, and the U.S. Military Courts, that have established their own standard for admissibility, sometimes described as "Frye Plus," whereas New Jersey is one of those odd states that remain on the fence and apply both standards (Daubert/Fyre, 2006).
"Under Daubert, a trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable, by asking whether the reasoning or methodology underlying the testimony is scientifically valid, and whether that reasoning or methodology properly can be applied to the facts in issue" (State v. Moore, 188 N.J. 182, 2006). Under the FRE, Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert [horizontal ellipsis] may testify thereto in the form of an opinion or otherwise." In effect, Daubert confirmed that the Rules of Evidence, like any other statute, supersede case law.
Expert Witness Credibility
An expert witness is only as good as his or her education and experience in two critical ways:
1. the first is establishing and maintaining credibility by having expertise in the required field, and
2. the second is withstanding cross-examination.
The fastest way to be excluded as an expert witness is to step "outside your sandbox." Even those experts who are experienced in courtroom testimony can be enticed to step outside their area of expertise and the next thing that happens is that there is an objection to the witness, his or her testimony in whole or in part, the expert's credibility is ruined and an otherwise solid case begins to crumble. It is no surprise that the CCM Code of Professional Conduct provides that "Certificants, when providing testimony in a judicial or non-judicial forum, will be impartial and limit testimony to their specific fields of expertise" (Section 5-S 21-Testimony). In essence, this recognizes the case manager's obligation to testify, but places the CCM on notice that they should testify only in those areas that they have specific knowledge.
Lawyers Call Upon Expert Witnesses
I recently surveyed knowledgeable and well-respected case managers, some with more than 20 years of experience in the field. I learned that many have been called upon to act as expert consultants and some to testify as expert witnesses at both deposition and trial.
In the unreported case of Thomas v. Concentra, the defendant, nurse case manager had been involved in a workers compensation case and found herself on the witness stand for seven straight hours. The allegations included the manner in which the case manager had directed care, lack of timeliness, and lack of advocacy. To establish the appropriate standard of care by which the nurse case manager would be judged, references were made to both The CCMC Code of Conduct and CMSA Standards of Practice. The verdict found that the workers compensation insurer and the case manager were both negligent and therefore liable. Similar issues are found in pending cases.
To establish the appropriate standard of care by which the nurse case manager would be judged as a defendant in a lawsuit, references were made to both The CCMC Code of Conduct and CMSA Standards of Practice.
Since most of this group of cases involving case managers settled prior to a jury verdict, and such cases typically are subject to a confidentiality agreement as part of the settlement, I am unable to cite those courts that have recognized case managers as experts; however, the cases include courts on the east coast, west coast, and mid-west states. What is important to learn from their collective experience is, what topics are the basis of such lawsuits? Inadequate discharge planning is an area of great concern and the subject of several suits. No matter what the hospital or other facility calls the case manager, the functions that are required are essential functions of the role of the case manager.
There seem to be lots of "planning," but questionable implementation. None of these cases involved complex or out-of-the-ordinary discharge plans. The problems arose when there was no follow-up with physicians after discharge. The hospital did not do enough, through its case managers, to assure that the patient and/or family knew that a physician follow-up visit was critical, and in another case, no one followed through to assure that the patient would be able to get a physician's appointment in a timely manner. I have seen cases in which a rehabilitation facility, with a staff bearing "case manager" name tags, fails to assess clients in a timely manner, fails to consider who will carry out the plans they have written, and delays postdischarge referral to outpatient services for more than 30 days, without reason or excuse. In cases where these actions result in measurable harm, damages are the available remedy.
Inadequate discharge planning is an area of great concern and the subject of several lawsuits [horizontal ellipsis]There seem to be lots of "planning," but questionable implementation. None of these cases involved complex or out-of-the-ordinary discharge plans. The problems arose when there was no follow-up with physicians after discharge.
One interesting variation occurred in a case where a young woman sustained serious injuries in a motor vehicle accident. She claimed that she and her assigned case manager could not communicate effectively and she requested a replacement from the insurance company paying her medical bills. In fact, the injured woman went so far as to hire her own independent case manager and expected reimbursement. The question arose: Does a client/patient have the autonomy to demand a new case manager when dissatisfied? The case manager, serving as an expert witness, testified at her deposition that if the relationship was such that it interfered with the necessary collaboration between the case manager and the client, which therefore interfered with the case manager's obligation to advocate on behalf of the patient, replacement may very well be appropriate. The unanswered question remains (and would vary from state to state) is whether the carrier has an obligation to pay for the second case manager. For the purpose of this discussion, the answer does not matter. More importantly, the case manager was accepted and did testify as an expert witness and in fact today, her copy of the CCM Code of Ethics is marked with an evidence sticker.
In my own practice, I recently defended a case manager when she was sued by her former employer, alleging that she had violated the "Agreement Not to Compete." This document was signed on her first day of work with a small independent case management company in a neighboring state. The employer's claim was based on her opinion that her case management business was a "unique niche business."
I responded citing the law on restrictive covenants, and covenants not to compete. When the case came to court, the plaintiff attempted to expound on the unique qualities of her case management company. I found myself in an odd position: I had full knowledge of case management (i.e., that this company was not "unique" as far as case management companies are defined), but I could not testify, as I was the lawyer representing the defendant. When the Judge asked for my response, I addressed the court and advised the judge (there was no jury) of my "unique" position.
I asked whether I might, as an officer of the court and honor-bound to tell the truth, explain my client's position. The Judge insisted that I reply. I explained that, although I was an attorney on this case, I was also a registered nurse, an experienced nurse case manager who had worked in a variety of settings, a certified case manager, and an experienced expert witness. At the time, I was the immediate past president of the local chapter of the CMSA, which I explained was the international professional organization for case management. Although it is inappropriate for an attorney to testify, I assured the court that-if the matter went to trial-I would present an expert who could testify.
Documentation is the way in which we demonstrate compliance with policies, procedures, and standards of practice, but the critical piece is "follow-through."
The Judge asked me to continue and I advised the court that case management had recognized standards of practice, a code of ethics, and that schools of higher education offered graduate level case management programs. More importantly, there were thousands of case managers and hundreds of companies just like that of the plaintiff's and, therefore, there was nothing unique about this plaintiff's company. If her company was so unique that it did not conform to the standards of practice, I supposed that it might be "unique"-but it might also be in violation of law and deviated from accepted standards of practice. The court recognized that case management was a well-established occupation, found that the plaintiff's business was not unique, and immediately dismissed the case to my client's delight.
Conclusion
Each case manager needs to be mindful of his or her role and take pride in his or her accomplishments in the field of case management. Documentation is the way in which we demonstrate compliance with policies, procedures, and standards of practice, but the critical piece is "follow-through." Actual follow-through has to happen with documentation as proof of such performance. In those cases where you have done all you can, and you can neither reach the client, the physician or a provider, documentation is your best protection to assure that you acknowledge your obligation, have taken all reasonable steps to accomplish your goals, but for some reason you simply could not accomplish the goal completely.
Copies of the Standards of Practice and Code of Professional Conduct are not just benefits of membership in the CMSA or certification by the CCMC. The Code and the Standards are there to help you in practice. They are professional guideposts establishing the parameters of practice. Case managers should read them, not once, and not just for test taking, but copies should be read frequently and the case manager should be fully familiar with the content. Figure 2 is an "Ask the Expert" inquiry form. The journal encourages you to submit your concerns or questions on this form via fax or e-mail. Future journal issues will address these questions and concerns.
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