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Order In the Court
Lessons from Twenty Years As An Expert Witness
Terry C. Wicks, CRNA, MHSCatawba Valley Medical CenterHickory, North Carolina
Presentation Overview
Disclaimer
Staying Out of Trouble
A Few Legal Points and Definitions
What Plaintiff’s Attorneys Want
What Defense Attorneys Want
Being a Competent “Expert” Witness
Disclaimer
I am not an attorney…(but I did see “The Verdict” three times)
I did not intend to become an “expert” witness. I was asked I tried to get out of it but… There’s a lot of work to be done… …and the money is pretty good.
I am not infallible and I am still learning.
This presentation is not a substitute for legal counsel…
Remember…
When a suit is brought it’s means that’s there has been a disaster for everyone except for you and the attorneys: The patient The patient’s family The anesthesia provider The anesthesia provider’s family
As an expert, embrace your responsibility with the appropriate commitment to the profession and to justice (you will be the alone in this regard).
Staying out of Trouble
Be familiar with and practice within written AANA Standards of Practice Code of Ethics for the Certified Registered Nurse
Anesthetist Scope and Standards for Nurse Anesthesia Practice Standards for Office Based Anesthesia Practice Post Anesthesia Care Standards for CRNA Guidelines for the Management of the Obstetrical
Patient for CRNAs Care for your patients like you would a member of
your family
All available for free at AANA.com
Common Problems
Incomplete or inadequate evaluation: Would a more thorough or timely evaluation materially helped to avoid the injury?
Improper Monitoring Failure to meet monitoring standards Lapses of vigilance Blood Loss
Airway Misadventures that result in anoxic or hypoxic brain injuries.
Nerve Injuries: Mechanical or drug induced
Negligence is all about…
A duty of care
Breach of that duty
Injury
Causation
Duty of Due Care
The Duty of Due Care requires all persons to conduct themselves as a reasonably prudent person would do in similar circumstances.
How do we define reasonable?
Not perfect, or best care, but what a reasonable and ordinary clinician would chose.
Local v State v National Standards
Breach of Duty
Expert WitnessesEstablish the Standard of CareShow that a breach of that
standard occurred.
The expert must be professionally qualified
Injury & Causation
The injury would not have occurred but for the defendant’s act or:
The injury was a foreseeable result of negligent conduct.
Res Ipsa Loquitor
The defendant had a duty to act reasonably.
The injury ordinarily would not occur in the absence of negligence.
The defendant must have exclusive control of the apparent cause (may be the “right” of control v actual control).
The plaintiff could not have contributed to the injury
Respondeat Superior
Hospitals, clinics, and physicians can be held responsible for the negligence of their agents or employees.
Is not based on employment status but rather, whether the person being employed was under the direction and control of the superior.
Informed Consent
The nature and purpose of the procedure
The most significant risks
Benefits of the intervention
The probable outcome of the intervention
Possible alternatives
The patient must be free from coercion
Patient Relations
There is no substitute for good patient relations “In every lawsuit, somebody’s angry” Mark
VanderLinden, BSN, JD, CPHRM, Risk Control Consultant at CNA.
Disclosure of Adverse Events Apologies help Communication
Results: Patients are more likely to be satisfied when informed about what happened, cases are more likely to be resolved quickly and in an amicable manner.
Anesthesia Records
Written records need to be complete & legible
Anesthesia records: Chronicle the pt’s response to surgery and
anesthesia Allows recreation of the anesthetic episode
at a later date Periodically turn your attention from other
matters of importance back to the patient (set the alarms!)
In general, what isn’t documented didn’t happen…most anesthesia records are atrocious.
Initial Steps if Sued
Notify your carrier if you believe or know that you are going to be sued e.g. your medical records department gets a request for records.
Never change, alter, or amend the record.
Meet with Counsel as soon as possible.
Don’t discuss the case with other potential defendants. Address and send any notes to your attorney.
Hot Seat Survival Tips
Know your scienceStay currentReview periodicallyKnow your habits
Use terms of art preciselyDon’t use jargonCorrect Counsel’s misuse of terms
An Ideal Client
Be active in your own defense
Be part of your attorney’s team
Stay in touch with your attorney, leave plenty of time for preparation for deposition.
Dress for success.
Just answer the question
Don’t guess, be as precise as possible.
An estimate is just an estimate.
Be brief in your answers, don’t elaborate, don’t be evasive.
Your conversations with your attorney are confidential
Stay calm & never, ever, lie…or make stuff up.
Rules of Self Defense
There are no stupid attorneysChameleonsBulliesSweet talkers
They know the law, but…
You know anesthesia… well, you should anyway.
Expert Requirements
The Expert Witness must be familiar with the jurisdiction’s standard of care requirements.
The Expert must be professionally qualified:EducationExperiencePractice
The Plaintiff’s Counsel
Is the issue clear cut (can you connect the dots)?
Are the damages astronomical?
What is the age of the client?
How will the client appear to the jury?
The Plaintiff’s Counsel
Was there negligence?Breach of the standard of
careFailure to follow policy
Does causality exist?
Does the record validate the claim?
The Plaintiff’s Counsel
Expert characteristicsProfessional experience
Match for age, experience, education and practice of the defendant
PresentationTestimony experience
PriceWork both sides of the street
Defense Counsel
The attorney will have interviewed the client, and reviewed the chart.
What happened and how is it charted? They look for: Errors Omissions Inconsistencies Other problems
What is the extent of the injury and how unusual is it?
Counsel for the Defense
What does an unbiased expert say about the case? Strong education & training Experience Gives candid assessment of the problem
Is the event so rare that the standard of care could not have contemplated the event?
How does the defendant, and the expert, present themselves?
Counsel for the Defense
Witness/Expert Intangibles: Arrogance and condescension are poison Good communication skills Strong positive presence
What is the venue, is it hospital/physician friendly or hostile
Who is across the table?
Does the defense have a credible story and credible witness?
An Expert’s Opinion
Read everything that is sent to you thoroughly Compare your impressions with known
standards You are not required to memorize the record
Be certain of your opinions
Discuss them candidly with Counsel Counsel wants your honest opinion, identify
the problems They may or may not choose to use you“I am an expert because I say I am…” Don Henley, The
Garden of Allah
Everything’s Discoverable
Your previous expert testimony history in deposition and at trial
Your frequency with which you provide expert opinion or testimony
Your fee schedule and it’s percentage of your income
Your notes Notes help you organize your thoughts They are discoverable
Letters and emails to and from Counsel
Sworn Testimony
Deposition Testimony is sworn testimony Is less formal than a
trial Is always recorded &
may be video taped Is for the discovery
and affirmation of facts and opinions
Trial Testimony Is sworn testimony Is more formal than
a deposition Is always recorded
& usually given before a jury
Is about the education and persuasion of the jury
Expert Deposition
Be preparedBe succinct
Answer briefly and precisely
Don’t elaborate unnecessarily
Always be honest
Always dress professionally
Always be polite
Going to Trial? Hopefully Not.
The Plaintiffs counsel doesn’t want to go to trial Expensive Time consuming They may not get paid
The Defense counsel does not want to go to trial Expensive Time consuming They may pay out a lot more money
The Court prefers that the case settle: See above.
Click icon to add picture
“Honesty is the best policy” Cervantes
Questions & Discussion