Order In the Court

Lessons from Twenty Years As An Expert Witness

Terry C. Wicks, CRNA, MHSCatawba Valley Medical CenterHickory, North Carolina

Presentation Overview

DisclaimerStaying Out of TroubleA Few Legal Points and

DefinitionsWhat Plaintiff’s Attorneys WantWhat Defense Attorneys WantBeing 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 catastrophe (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).

Stay Current, & Stay Out of Trouble

Know and practice within 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 Available for free at AANA.com. Review for periodic

updates. Care for your patients like you would a member of your

own family

Common Problems

Incomplete or inadequate evaluation: Would a more thorough or timely evaluation reduced the risk of 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…

1. A duty of care2. Breach of that duty3. Injury and4. 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 WitnessesTestify as to what constitutes the

Standard of CareIdentify when a breach of the

standard has occurred.The expert must be professionally

qualified (this is a process, not a state of being)

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.

Semper Ubi Sub Ubi

Always wear underwear…

Informed ConsentThe nature and purpose of the

procedureThe benefits and probable outcome of

the interventionDisclosure of Material Risks

Most commonMost serious

Possible alternativesThe patient must be free from coercion

Patient RelationsThere 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.

If You Are 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.

You’re On Trial: 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 defenseBe part of your attorney’s team

Stay in touch with your attorneyLeave 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 confidentialStay 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

Preferred 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?

As An Expert…

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

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

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

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? Probably 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.

terrywickscrna@gmail.com

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“Honesty is the best policy” Cervantes

Questions & Discussion

Mock Deposition and Evaluation

Be ready to critique responses and behavior…