Articles: Medical Records
Getting the Most Out of Your Nursing Expert
 Med
League has about 100 nursing
experts
in a variety of clinical fields ready to evaluate nursing
malpractice cases. Please contact
us to discuss your needs.
Nursing
experts fit into two categories: the “behind the scenes”
expert who serves in a purely consulting role, and the testifying
expert who opines on liability. Both can provide value to
the attorney handling a case involving medical issues by
translating the sometimes mysterious world of medicine into
understandable concepts.
A consulting
expert provides work product reports protected from discovery
by supplying advice and guidance to the attorney at any
of the stages of a case. Steve New of the Law Offices
of Steven New in Beckley, WV offers this perspective
about the use of a consulting expert: “I believe that
attorneys should get a nursing expert involved early on
in any medical malpractice case they are reviewing. There
are several reasons for this. First, there may be nursing
negligence involved in the bad outcome for the patient.
Second, a nursing expert is going to be able to explain
the nurses’ roles in overall environment of care.
Finally, the nursing expert is going to be able to assist
with strategies such as whether to include the nurse’s
/ hospital’s negligence in the action, or using the
nurse’s testimony to help establish the standard of
care / breach against the physician. The nursing expert
can then help guide the attorney through research, consultation
with other experts, and the typical case development.”
Once
the attorney has reached the conclusion that a testifying
nursing expert witness is needed, several considerations
guide the selection of such an expert to get the most out
of the expert. Ray Fleming of Sachs Maitlin Fleming
and Greene of West Orange, NJ, has this to say:
“I think the main thing lawyers forget to think about
is a nurse’s specialty. They focus on that with doctors,
but often lose sight of it with nurses. If you retain a
well-qualified nurse to testify in a medical surgical case,
but the expert’s background is primarily emergency
care, or home care, she or he is going to be subject to
a credibility attack at depositions and trial. Sometimes
we think, ‘Ok, she’s a legal
nurse consultant’, but if his or her experience doesn’t
match the case, there can be trouble. Similarly, we usually
want the nurse to have recent clinical experience. Sometimes,
there’s an academic issue, like the meaning of a hospital
policy, but usually the big issue in these cases is a clinical
judgment. I have been able to call many nursing experts’
credibility into question on the basis that they have not
been on the front lines making the tough decisions my poor
defendant nurse has to make every day.”
Peter
Berge of Bendit Weinstock in West Orange, NJ, focuses
on several selection criteria for a nursing expert: clinical/teaching
experience in the appropriate field/specialty at issue in
case; comparison of qualifications of the expert with those
of defendant(s), including experience, education and certifications;
and any legal requirements regarding matching liability
experts with the defendants. He also considers how the expert
will be qualified to opine on the actions of the defendant
and on matching the expert’s practice setting with
that of the defendant. Peter advises attorneys to look for
experts with applicable clinical certifications, such as
those granted by the clinical nursing associations which
result in certification such as Certified Pediatric Nurse,
Certified Post Anesthesia Nurse, Critical Care Registered
Nurse, or Certified Emergency Nursing. A nurse who wishes
to become certified has to reach a threshold of clinical
experience and pass an exam based on standards of the professional
association. See
more certifications. Ray Fleming points out, “A
lot of the nursing specialty organizations have published
guidelines and standards. These can be a great resource,
either affirmatively or for use in cross-examination of
the other side’s expert, and a lot of attorneys don’t
know to inquire about these.” Your nursing expert
likely has copies of these standards or can readily obtain
them for you.
Ray
Fleming offers some concrete suggestions for getting the
most out of your expert as the case progresses. “Ask
for an honest assessment of the case and don’t ask
an expert to say anything he or she is not comfortable with.
Be sure all of the documents needed to accurately assess
the case are supplied to the expert. Keep the experts up
to date with new deposition transcripts that come in after
they’ve rendered a report and with new reports of
other experts, etc.” It is frustrating for experts
to receive a package of depositions to review a few days
before the expert’s deposition is to take place. The
expert risks missing key pieces of information in the rush
to read and assimilate the new information. Ray points out
this can overwhelm the expert the night before a deposition
or trial. “Use the nurse as a resource, and call to
ask for his or her input and help before deposing the other
side’s expert. And I always try to keep them informed
of the status of the case, especially changes in deposition
or trial dates...make your witness your friend, not your
enemy!”
Steven
New advises attorneys handling nursing employment matters
to consider using nursing experts in those cases. He is
seeing a trend for retaliation against whistleblower nurses
who report violations of standards of care or staffing,
or behavioral issues of other healthcare providers. Attorneys
need reliable nurses with management background who are
ready to address those issues.
Back
to Expert services.
|
