The expert nurse witness

AORN Journal,  Nov, 2005  by Ellen K. Murphy

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If the case is not settled based on what the attorney's learn in the discovery phase, the nurse expert can expect to be called to give a deposition. The expert does not need personal legal counsel for this step because the expert is neutral. The expert should, however, expect the retaining attorney to provide a basic orientation to the process and the style of the attorney taking the deposition.

The nurse expert can anticipate that questions will explore two general areas. There will be questions related to the expert's credentials and questions about the expert's opinion and on what that opinion is based. The nurse expert can anticipate that the deposing attorney will try to discredit the nurse's credentials and/or opinion if that opinion is contrary to the best interests of the attorney's client. This is an adversarial process with which most nurses are unfamiliar and may find uncomfortable. It is helpful to remember that whatever is said and done has nothing to do with the nurse expert and everything to do with how the attorney thinks his or her client is best served.

Different attorneys have different styles, and one attorney may exhibit different styles, depending on the objective of the questions. The attorney may be friendly and cajoling when attempting to elicit more information or may be intimidating and disdainful when attempting to discredit the expert's credentials or opinion. The nurse expert should remain professional in voice and demeanor regardless of the deposing attorney's style.

The only hard and fast rule is to tell the truth. Other guidelines include the following.

* Answer the question and no more.

* Ask for clarification of confusing questions.

* Take time to formulate the response.

* If a question cannot be answered with a "yes" or "no," so state.

* "I do not know" is an appropriate answer when it is true.

If the case still is not settled and proceeds to trial, the nurse expert will continue to assist as requested in preparing for trial. Trial testimony practices are similar to those for depositions. Modifications are made depending on each party's assessment of the receptivity of the jury.

THE UNETHICAL WITNESS

The medical professions have addressed the issue of the unethical expert witness--the witness who may have pushed the boundaries of data- or science-based opinions to the point of being erroneous. In a recent federal appellate case, the court upheld a professional association's decision to expel a member because of his unethical testimony as an expert (Austin v American Association of Neurosurgeons, 258 F3d 967 [7th Cir, 2001]). Unethical testimony also can be considered unprofessional conduct for purposes of licensure discipline. Some medical professional associations have taken a proactive approach by creating guidelines for their members who function as expert witnesses, and at least one has established a certification program for members interested in testifying as experts. (5) No similar discussions could be located in the nursing literature, although the National Association of School Nurses has adopted a position statement saying that only school nurses should testify as to the practice of school nurses. (6) This statement includes a provision that the nurse expert adhere to professional ethics and other guidelines.