Order In the Court
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Transcript Order In the Court
Order In the Court
Lessons from Twenty Years As An Expert Witness
Terry C. Wicks, CRNA, MHS
Catawba Valley Medical Center
Hickory, 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 Witnesses
Establish the Standard of Care
Show 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 science
Stay current
Review periodically
Know your habits
Use terms of art precisely
Don’t use jargon
Correct 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 attorneys
Chameleons
Bullies
Sweet 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:
Education
Experience
Practice
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 care
Failure to follow policy
Does causality exist?
Does the record validate the claim?
The Plaintiff’s Counsel
Expert characteristics
Professional experience
Match for age, experience, education
and practice of the defendant
Presentation
Testimony experience
Price
Work 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
Trial Testimony
is sworn testimony
Is less formal than a
Is sworn testimony
Is more formal than a
trial
Is always recorded &
may be video taped
Is for the discovery and
affirmation of facts
and opinions
deposition
Is always recorded &
usually given before a
jury
Is about the education
and persuasion of the
jury
Expert Deposition
Be prepared
Always be
Be succinct
Answer briefly
and precisely
Don’t elaborate
unnecessarily
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.
Questions & Discussion
[email protected]
“Honesty is the best policy” Cervantes