The expert nurse witness

AORN Journal,  Nov, 2005  by Ellen K. Murphy

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It comes as no surprise to any perioperative nurse that the lay public has an incomplete and sometimes erroneous perception of what perioperative nurses know and do. When a question about the adequacy of a perioperative nurse's actions or competency is brought to the legal system, however, lay judges, juries, attorneys, or administrative law judges must make decisions as if they understood perioperative practice. To make these decisions, they cannot rely on their own knowledge; they must be assisted by documentary and testimonial evidence. More often than not, they require the assistance of an expert nurse witness. This column briefly defines the role of an expert witness, traces the evolution of the need for expert nurse witness testimony, and describes the consultative services a nurse expert can provide.

DEFINITIONS

According to Black's Law Dictionary, an expert is

   a person who, through education or
   experience, has developed skill or
   knowledge in a particular subject so
   that he or she may form an opinion
   that will assist the fact finder. (1(p619))

An expert witness is a person

   qualified by knowledge, experience,
   training, or education to provide a
   scientific, technical, or other specialized
   opinion about the evidence or a
   fact issue. (1(pl633))

An expert witness differs from a material or lay witness in two respects: the expert usually has no first-hand knowledge of what led to the case and unlike material witnesses who are limited in their testimony to providing objective descriptions of what they observed or did, an expert witness is allowed to give his or her professional opinion and draw conclusions.

THE NEED FOR NURSE EXPERTS

Expert nurse witnesses typically are needed whenever the adequacy of another nurse's actions are in question. Usually, this occurs in disciplinary proceedings against a nurse licensee before an administrative law judge or in malpractice cases where the actions of the nurse are alleged to have contributed to a patient's injury.

For decades, most courts accepted that physicians had the necessary expertise to explain standards of nursing. More recently, it has been recognized that testimony about what a nurse should have done best comes from another nurse. For example, in 1958, a California court allowed a physician to testify about what nurses should have done saying, "Surely a qualified doctor would know what was standard procedure of nurses to follow" (Goff v Doctor's Hospital, 166 CalApp2d 314, 319 [1958]). Fourteen years later, a Pennsylvania court recognized that a physician might not be the best expert on nursing standards, but it still allowed physicians' testimony to be admitted because, "all areas of medical expertise within the knowledge of nurses are also within the knowledge of medical doctors" (Taylor v Spencer Hospital, 292 A2d 449, 452 [Pa Super 1972]). Finally, in 2004, an Illinois court explicitly held that a physician was not qualified to testify as to the standard of care for the nursing profession under the laws of the state of Illinois (Sullivan v Edward Hospital, 806 NE2d 645 [Ill 2004]). Along with this increasing judicial recognition of the unique body of nursing knowledge comes an increased responsibility for nurses to be willing to share their expertise with lay legal decision makers; however, they must do so within the context of the unfamiliar, adversarial legal system.

FINDING A NURSE EXPERT

Identifying a possible perioperative nurse expert is more art than science. Attorneys may conduct online searches for persons who have spoken or written on issues relevant to the case, or they may conduct a search of nursing and health care literature online or in hard copy indices. They may ask attorney colleagues for referrals or contacts. Sometimes, they contact nursing schools or professional nursing associations.

Nurses interested in offering services as consultants or witnesses can place their contact information in classified advertisements in legal journals. Some attorneys may not consult classified advertisements, however, because of concern about the credibility of the nurse expert; some states require that experts earn most of their income from the practice of the profession, not from testifying or consulting in legal cases. (2-4)

NEGOTIATING A CONTRACT

A nurse who is asked to consult or testify must approach the agreement with the retaining attorney as he or she would any other contract. The nurse expert has absolutely no duty to consult and cannot be subpoenaed to testify unless he or she consents to do so. This is a main point that should be negotiated up front. After the nurse agrees to provide a service, the nurse is legally bound by contract to do so; thus, there must be a clear expectation of services, timelines, and remuneration for time and expenses.

* Does the service consist of reviewing medical records and providing an opinion to the retaining attorney?

* Is this opinion to be an oral or written report?