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EXPERT WITNESS - Nurse Will Testify
This is a plain talk discussion on testifying sessions by a “nurse” as opposed to testifying as an Expert Witness. An Expert Witness, of course, is called to represent Nursing, Standards of Care when the practice of another nurse is in question. But, nurses must testify at other times. So, this talk is about nurse testimony in general.
ABOUT ME Since this article is about court testimony and deposition testimony as I see it, I need to tell you about my background. It’s easier to stay hidden behind other people’s articles especially since this is age revealing. I retired in June 2005, haven’t even done part time since. To give some credibility to this testimony article, let me say that I have given nursing testimony in court and handled depositions 12 times, probably not done yet. My nursing career included 3 years in Obstetrics, 11 years in Med-Surg in various positions, 2 as an LVN Instructor (LPN in some States), 20 years in Psych with 12 of those years in Staff Development, some as a DON. I had 2 years in Staff Development in Long Term Care and 6 years as a DON in Long Term Care. So, my background is varied and I certainly set myself up to give testimony in later years.
THE RESUME #1 Keep It Short. If you intend to testify as any kind of witness, or even if you don’t and you are called, having a resume handy is a real good idea. So, what do you put on it and how much? I always felt at ease that I had avoided a lot of questions in depositions by providing a resume to the attorney with me and handing a resume to the opposing attorney, keeping one for myself. With my varied experience, it was easier to look at a piece of paper to figure out when I was doing what kind of nursing. All but one attorney looked at the resume, asked a couple of easy questions and put the resume away. I said, all but one, that one went through every work experience I ever had with multiple questions. Right away, I figured she didn’t know what she was doing and I was her victim. I now summarize with the number of years in each type of experience and keep the resume to a one pager and, it works just as well. For Expert Testimony in court, a resume is, of course required. Start with the short resume and provide further details, if required. Check the resumes on some of the Expert Witnesses listed online. You will find one pagers.
A WORD or more ABOUT DEPOSITIONS As a nurse, you are “eligible” to be called for your employer in any of their cases in which you had involvement with the patient, other nurses or the Medical Record. In this case, the organization’s attorney or legal nurse consultant will meet with you and prepare you for the case. The attorney does not want any surprises. The difficult part of depositions is that while you have been prepared and the organization’s attorney is present, he or she may object to a question being asked of you, but you still must answer the question. Your testimony goes on record and quite often is videotaped. That tape is from then on available to both attorneys. Your printed testimony is typed. You may waive reading of the testimony or you may read it. You are not able to change anything, but you can submit a written correction.
A skilled attorney will ask you questions that are leading somewhere and often, you recognize where the line of questioning is going. The skilled attorney takes the questioning right up to where you can give a good answer for the defense and then stops the questions. How frustrating. However, you are there to answer to the best of your ability and more than what they are looking for is unwanted and can be dangerous to the case.
An objective of a deposition is to acquire information. The information obtained is examined and weighed by the plaintiff attorney and the defendant’s attorney. The idea pretrial is that one side makes the other side believe that a decision might go their way. If so, an agreement can be made. It is often in the best interest of the party being sued to settle rather than risk a lengthy trial and jury award.
Depositions often lead to settlements and are, therefore, mostly done by “nurses” not Expert Witnesses. When a case moves to trial, an Expert Witness may be engaged to testify on Standards of Care and the practice of nursing.
TESTIFYING IN COURT My first experience in giving testimony in court, a nurse witness, was actually in a child custody case. My nursing expertise with a review of the medical record was used in questioning to explain the child’s care given and actually used to illustrated that the nurse was able to observe child and parents. My nursing testimony involved the child’s reactions and behaviors for about 24 hours after an event between the parents. Pediatrics is not my forte by psychiatric nursing is one of them, so I guess it was okay. I was an expert in observing behavior.
The other court testimony and most recent, was in a Workman’s Comp Case. At that point, I was more experienced than either attorney. In several instances, I asked the opposing attorney to “try that question again in different words” or I was able to say, “I don’t understand the question.” Attorneys think differently than medical people and sometimes phrase a question in a way that is difficult to answer. In this case, the attorney complied and the judge didn’t have a problem with it, so it worked out all right. I have no idea how that one came out. It was only a few weeks ago.
OTHER LAW SUITS that I recall were depositions and I give examples only to show what kind of things nurses must answer to or determine an appropriate Standard for. 1) A nursing assistant dropped a patient with brain cancer, the patient bruised her hip. The resident was taken home and cared for and died three months later. The family sued. Case settled. 2) A case of “lack of consortium” (look that one up) A 95 year old man was sent from Long Term Care to a hospital with a temp of 97 (became an issue), responding differently than usual. He expired 3 days later and the wife sued for “lack of consortium.” Case Settled. 3) A family sued because a resident “declined” in our care. The resident was 87 and sent to us post op after a major surgery, recovered and went home with family. Case Settled. I bring up these kinds of cases because, most of the time, there is no Win-Lose. The entire process assigns no blame, just an agreement to stop proceedings and accept a monetary agreement. Most nurses find this frustrating when they believe that they are in the right and are never cleared.
None of these cases required research anywhere but the Medical Record. The narrative notes were the easiest to use, remember and base an answer on. Medical Charts with checks for notes are difficult to defend because a nurse could just miss a spot to check or check inadvertently. You have no other information. All the witness can say is, I say that the area in question is checked or I see that it is not checked. It sets you up to have to explain procedures and practices placed before you by the attorney from your own manuals. Of course, that is where the Expert Witness comes in, to tell the court the usual practice in this area. Anyway, “if it wasn’t charted, it wasn’t done”. Any other than narrative type of record keeping, “Charting by Exception” , “Check Offs”, whatever, will require an explanation, by the nurse witness.
The Best Advice I Can Give is to 1) Have a concise resume ready for either deposition or Expert Witness Testimony. 2) Dress professionally. 3) Answer questions without expanding with more information 4) Let your attorney lead. Don’t offer information unless asked. 5) If asked to express an opinion, base it on fact not how you feel about something because, you may need to back it up with more information. You could start your answer with, “Because ‘such and such’ happened or is true, I think……………..”
Expert Witness advice or advice on giving testimony may differ from nurse to nurse based on their experience. My experience is with two Court Testimony appearances and 12 depositions on cases from my work areas. I do not represent myself as an experienced “Expert Witness” testifying on Standards of Care.
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