1. Miller, Lisa A. CNM, JD

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There are many, many nurses today who find themselves considering work as an expert witness, as an adjunct to their clinical or academic practice, and there are many routes to that destination. After working as an expert witness for more than 30 years, this author has some thoughts on the subject, and as questions about expert testimony are common in many continuing education seminars, today's column focuses on just a few tips for nurses providing expert testimony. The opinions expressed herein are only the author's, and other experts may well disagree, such is the nature of experts and expert testimony.


Tip 1: Beware of hindsight bias. When reviewing a case, try to put yourself in the defendant's shoes and begin your case where the patient began her care. In other words, if the case involves electronic fetal monitoring (EFM) and a poor outcome, do not look to the last 2 hours of the EFM tracing and the APGAR scores; begin with the admission form and move through the care of the patient just as it unfolds clinically. One of the best approaches a defense attorney provided involved a postpartum case where the records for review were provided separated into segments of time, and the review of one portion of the medical record had to be completed (and opinions formed) before reviewing the next and before the final outcome was revealed to the expert. It was the closest simulation of a review in real time as was possible. Hindsight bias is a real and very problematic issue for nursing experts, and whether working for the defense or the plaintiff, it is unavoidable. Even those with the most rudimentary knowledge of the legal system know that when there is a lawsuit, it is due to a poor outcome. Every time a nurse expert is retained, he or she knows something has happened, and this knowledge alone increases the tendency to look for and find error. Do not let the attorney reveal too much about the outcome prior to records' review. Rather try to proceed through the review the same way the defendants proceeded in real time, admission assessment, diagnosis, treatment, course of stay, etc.


Tip 2: It is only one case; do not make it your career. Over the years, there were a few attorneys who did not hesitate to provide fairly specific thoughts about what they thought I should testify to in a pending case. While a discussion of the facts of the case, opposing parties' theories, and specific issues that are contentious in litigation are perfectly appropriate discussion points, the nursing expert is going to be testifying under oath and the testimony must accurately reflect the expert's honest opinions, not the lawyers' preferred opinions. Both plaintiff and defense lawyers have access to prior deposition testimony of nursing and medical experts, and it will be reviewed and, in some cases, can be used to discredit testimony that does not coincide with prior depositions. When serving as an expert witness, a reputation for honesty and integrity is paramount. Any respectable attorney, whether defense or plaintiff, wants to know the truth about the issues in the case, regardless of whether it helps or hinders the case. By providing an honest and unbiased assessment, the nurse expert helps the attorney with decision making. Do not work with attorneys who pressure you to testify in a certain way.


Tip 3: Be sure you understand the legal concept of standard of care. Not all nurses providing expert testimony seem to truly understand the legal meaning of the phrase "standard of care." Considered a legal term of art, "standard of care" is the care that a reasonable and prudent person (nurse) would provide in same or similar circumstances. Thus, it may or may not be the same as what the nurse expert would have done, a nuance often missed by many experts. As nurses, there are many ways to provide care at the bedside, and nursing practice can vary person to person, hospital to hospital, and region to region. Experts must guard against mistaking the legal standard of care for what they would have done or not done. Rather, the issue is whether the care was reasonable for the circumstances at the time. An approach that was reasonable 5 years ago may not be considered so today, the expert needs to assess reasonableness based on the time of the case facts. Experts also need to be careful not to automatically equate hospital protocols with the legal standard of care. Protocols and policies may be evidence of the legal standard of care, but providing care differently than protocol or policy does not automatically make the care rendered unreasonable. As an expert, I only reviewed protocols and policies if specifically asked by the attorney, as my opinions on the reasonableness of nursing care came directly from the record and the nursing deposition.


Tip 4: Be willing to work for both plaintiff and defense. Nursing expert testimony should be the same regardless of whether the nurse expert is retained by a plaintiff or defense attorney. Nurse experts who actively choose to only work for the defense (or plaintiff) appear biased toward that particular side. Since the opinions should be the same regardless of which side is retaining the nurse expert, there should be no hesitation to provide testimony for defense and plaintiff over the course of a career. Usually, this occurs naturally, as nursing experts perceived by opposing counsel to be credible and competent will often be approached for expert review in future cases.


Tip 5: Be sure you are truly qualified to provide expert testimony. If your experience with providing postpartum care is limited to once in a blue moon, do not testify as a nursing expert in a case where postpartum care is the crux of the matter. While there are no nationally set criteria for the qualifications of nursing experts, being able to testify to practice experience, published work, or work as a lecturer or educator on the area in question is helpful in being recognized as an expert. And don't forget membership in your professional organization! The following deposition excerpts are illustrative:


Attorney: And you intend to tell the jury you are an expert in fetal monitoring, correct?


Nurse expert: Yes.


Attorney: Are you currently teaching fetal monitoring classes?


Nurse expert: No, I last taught probably 8-9 years ago as far as a formal course.


Attorney: Are you certified in electronic fetal monitoring.


Nurse expert: No, I think I was back when I was teaching classes, but I did not maintain it.


Attorney: Tell me how frequently you currently work with electronic fetal monitoring.


Nurse expert: Well, as a faculty member, I provide education for the nursing students during their clinical rotation in labor & delivery.


Attorney: And how often is that?


Nurse expert: A couple of times a month.


Whether or not a jury will perceive this witness as a credible expert in fetal monitoring is an unknown, but if the case in point hinged on the interpretation and management of EFM, this nursing expert may have been wiser to pass. The deposition testimony does not "go away" when the case is settled or adjudicated at trial; it will be available to future lawyers, both defense and plaintiff, and may have impact on future expert work.


In closing, it should be noted that providing honest and truthful testimony in malpractice cases is an important obligation of the nursing community, and not one to be taken lightly. The tips offered in this column will not likely come as any surprise to experienced nursing experts, but the field seems to be growing at such a rapid pace the caveats herein may provide useful guidance to those newer, or just entering, the expert arena. Understanding the legal meaning of the standard of care, working in a manner that limits the problem of hindsight bias, providing honest and accurate testimony regardless of whether for plaintiff or defense, and being careful not to testify in areas outside personal expertise are just a few of the steps on the road to being a respected nurse expert.


-Lisa A. Miller, CNM, JD




Perinatal Risk Management and Education Services


Portland, Oregon