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Order In the Court Lessons from Twenty Years As An Expert Witness Terry C. Wicks, CRNA, MHS Catawba Valley Medical Center Hickory, North Carolina.

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Presentation on theme: "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 transcript:

1 Order In the Court Lessons from Twenty Years As An Expert Witness Terry C. Wicks, CRNA, MHS Catawba Valley Medical Center Hickory, North Carolina

2 Presentation Overview Disclaimer Disclaimer Staying Out of Trouble Staying Out of Trouble A Few Legal Points and Definitions A Few Legal Points and Definitions What Plaintiffs Attorneys Want What Plaintiffs Attorneys Want What Defense Attorneys Want What Defense Attorneys Want Being a Competent Expert Witness Being a Competent Expert Witness

3 Disclaimer I am not an attorney…(but I did see The Verdict three times) I am not an attorney…(but I did see The Verdict three times) I did not intend to become an expert witness. I did not intend to become an expert witness. I was asked I was asked I tried to get out of it but… I tried to get out of it but… Theres a lot of work to be done… Theres a lot of work to be done… …and the money is pretty good. …and the money is pretty good. I am not infallible and I am still learning. I am not infallible and I am still learning. This presentation is not a substitute for legal counsel… This presentation is not a substitute for legal counsel…

4 Remember… When a suit is brought its means thats there has been a disaster for everyone except for you and the attorneys: When a suit is brought its means thats there has been a disaster for everyone except for you and the attorneys: The patient The patient The patients family The patients family The anesthesia provider The anesthesia provider The anesthesia providers family The anesthesia providers 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). As an expert, embrace your responsibility with the appropriate commitment to the profession and to justice (you will be the alone in this regard).

5 Staying out of Trouble Be familiar with and practice within written AANA Standards of Practice Be familiar with and practice within written AANA Standards of Practice Code of Ethics for the Certified Registered Nurse Anesthetist Code of Ethics for the Certified Registered Nurse Anesthetist Scope and Standards for Nurse Anesthesia Practice Scope and Standards for Nurse Anesthesia Practice Standards for Office Based Anesthesia Practice Standards for Office Based Anesthesia Practice Post Anesthesia Care Standards for CRNA Post Anesthesia Care Standards for CRNA Guidelines for the Management of the Obstetrical Patient for CRNAs Guidelines for the Management of the Obstetrical Patient for CRNAs Care for your patients like you would a member of your family Care for your patients like you would a member of your family All available for free at AANA.com All available for free at AANA.com

6 Common Problems Incomplete or inadequate evaluation: Would a more thorough or timely evaluation materially helped to avoid the injury? Incomplete or inadequate evaluation: Would a more thorough or timely evaluation materially helped to avoid the injury? Improper Monitoring Improper Monitoring Failure to meet monitoring standards Failure to meet monitoring standards Lapses of vigilance Lapses of vigilance Blood Loss Blood Loss Airway Misadventures that result in anoxic or hypoxic brain injuries. Airway Misadventures that result in anoxic or hypoxic brain injuries. Nerve Injuries: Mechanical or drug induced Nerve Injuries: Mechanical or drug induced

7 Negligence is all about… A duty of care A duty of care Breach of that duty Breach of that duty Injury Injury Causation Causation

8 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. Not perfect, or best care, but what a reasonable and ordinary clinician would chose. Local v State v National Standards Local v State v National Standards

9 Breach of Duty Expert Witnesses Expert Witnesses Establish the Standard of Care Establish the Standard of Care Show that a breach of that standard occurred. Show that a breach of that standard occurred. The expert must be professionally qualified The expert must be professionally qualified

10 Injury & Causation The injury would not have occurred but for the defendants act or: The injury would not have occurred but for the defendants act or: The injury was a foreseeable result of negligent conduct. The injury was a foreseeable result of negligent conduct.

11 Res Ipsa Loquitor The defendant had a duty to act reasonably. The defendant had a duty to act reasonably. The injury ordinarily would not occur in the absence of negligence. 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 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 The plaintiff could not have contributed to the injury

12 Respondeat Superior Hospitals, clinics, and physicians can be held responsible for the negligence of their agents or employees. 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. Is not based on employment status but rather, whether the person being employed was under the direction and control of the superior.

13 Informed Consent The nature and purpose of the procedure The nature and purpose of the procedure The most significant risks The most significant risks Benefits of the intervention Benefits of the intervention The probable outcome of the intervention The probable outcome of the intervention Possible alternatives Possible alternatives The patient must be free from coercion The patient must be free from coercion

14 Patient Relations There is no substitute for good patient relations There is no substitute for good patient relations In every lawsuit, somebodys angry Mark VanderLinden, BSN, JD, CPHRM, Risk Control Consultant at CNA. In every lawsuit, somebodys angry Mark VanderLinden, BSN, JD, CPHRM, Risk Control Consultant at CNA. Disclosure of Adverse Events Disclosure of Adverse Events Apologies help Apologies help Communication 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. 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.

15 Anesthesia Records Written records need to be complete & legible Written records need to be complete & legible Anesthesia records: Anesthesia records: Chronicle the pts response to surgery and anesthesia Chronicle the pts response to surgery and anesthesia Allows recreation of the anesthetic episode at a later date 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!) Periodically turn your attention from other matters of importance back to the patient (set the alarms!) In general, what isnt documented didnt happen…most anesthesia records are atrocious. In general, what isnt documented didnt happen…most anesthesia records are atrocious.

16 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. 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. Never change, alter, or amend the record. Meet with Counsel as soon as possible. Meet with Counsel as soon as possible. Dont discuss the case with other potential defendants. Address and send any notes to your attorney. Dont discuss the case with other potential defendants. Address and send any notes to your attorney.

17 Hot Seat Survival Tips Know your science Know your science Stay current Stay current Review periodically Review periodically Know your habits Know your habits Use terms of art precisely Use terms of art precisely Dont use jargon Dont use jargon Correct Counsels misuse of terms Correct Counsels misuse of terms

18 An Ideal Client Be active in your own defense Be active in your own defense Be part of your attorneys team Be part of your attorneys team Stay in touch with your attorney, leave plenty of time for preparation for deposition. Stay in touch with your attorney, leave plenty of time for preparation for deposition. Dress for success. Dress for success.

19 Just answer the question Dont guess, be as precise as possible. Dont guess, be as precise as possible. An estimate is just an estimate. An estimate is just an estimate. Be brief in your answers, dont elaborate, dont be evasive. Be brief in your answers, dont elaborate, dont be evasive. Your conversations with your attorney are confidential Your conversations with your attorney are confidential Stay calm & never, ever, lie…or make stuff up. Stay calm & never, ever, lie…or make stuff up.

20 Rules of Self Defense There are no stupid attorneys There are no stupid attorneys Chameleons Chameleons Bullies Bullies Sweet talkers Sweet talkers They know the law, but… They know the law, but… You know anesthesia… well, you should anyway. You know anesthesia… well, you should anyway.

21 Expert Requirements The Expert Witness must be familiar with the jurisdictions standard of care requirements. The Expert Witness must be familiar with the jurisdictions standard of care requirements. The Expert must be professionally qualified: The Expert must be professionally qualified: Education Education Experience Experience Practice Practice

22 The Plaintiffs Counsel Is the issue clear cut (can you connect the dots)? Is the issue clear cut (can you connect the dots)? Are the damages astronomical? Are the damages astronomical? What is the age of the client? What is the age of the client? How will the client appear to the jury? How will the client appear to the jury?

23 The Plaintiffs Counsel Was there negligence? Was there negligence? Breach of the standard of care Breach of the standard of care Failure to follow policy Failure to follow policy Does causality exist? Does causality exist? Does the record validate the claim? Does the record validate the claim?

24 The Plaintiffs Counsel Expert characteristics Professional experience Professional experience Match for age, experience, education and practice of the defendant Match for age, experience, education and practice of the defendant Presentation Presentation Testimony experience Testimony experience Price Price Work both sides of the street Work both sides of the street

25 Defense Counsel The attorney will have interviewed the client, and reviewed the chart. The attorney will have interviewed the client, and reviewed the chart. What happened and how is it charted? They look for: What happened and how is it charted? They look for: Errors Errors Omissions Omissions Inconsistencies Inconsistencies Other problems Other problems What is the extent of the injury and how unusual is it? What is the extent of the injury and how unusual is it?

26 Counsel for the Defense What does an unbiased expert say about the case? What does an unbiased expert say about the case? Strong education & training Strong education & training Experience Experience Gives candid assessment of the problem Gives candid assessment of the problem Is the event so rare that the standard of care could not have contemplated the event? 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? How does the defendant, and the expert, present themselves?

27 Counsel for the Defense Witness/Expert Intangibles: Witness/Expert Intangibles: Arrogance and condescension are poison Arrogance and condescension are poison Good communication skills Good communication skills Strong positive presence Strong positive presence What is the venue, is it hospital/physician friendly or hostile What is the venue, is it hospital/physician friendly or hostile Who is across the table? Who is across the table? Does the defense have a credible story and credible witness?

28 An Experts Opinion Read everything that is sent to you thoroughly Read everything that is sent to you thoroughly Compare your impressions with known standards Compare your impressions with known standards You are not required to memorize the record You are not required to memorize the record Be certain of your opinions Be certain of your opinions Discuss them candidly with Counsel Discuss them candidly with Counsel Counsel wants your honest opinion, identify the problems Counsel wants your honest opinion, identify the problems They may or may not choose to use you They may or may not choose to use you I am an expert because I say I am… Don Henley, The Garden of Allah

29 Everythings Discoverable Your previous expert testimony history in deposition and at trial Your previous expert testimony history in deposition and at trial Your frequency with which you provide expert opinion or testimony Your frequency with which you provide expert opinion or testimony Your fee schedule and its percentage of your income Your fee schedule and its percentage of your income Your notes Your notes Notes help you organize your thoughts Notes help you organize your thoughts They are discoverable They are discoverable Letters and emails to and from Counsel Letters and emails to and from Counsel

30 Sworn Testimony Deposition Testimony is sworn testimony is sworn testimony Is less formal than a trial Is less formal than a trial Is always recorded & may be video taped Is always recorded & may be video taped Is for the discovery and affirmation of facts and opinions 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

31 Expert Deposition Be prepared Be prepared Be succinct Be succinct Answer briefly and precisely Answer briefly and precisely Dont elaborate unnecessarily Dont elaborate unnecessarily Always be honest Always dress professionally Always be polite

32 Going to Trial? Hopefully Not. The Plaintiffs counsel doesnt want to go to trial The Plaintiffs counsel doesnt want to go to trial Expensive Expensive Time consuming Time consuming They may not get paid They may not get paid The Defense counsel does not want to go to trial The Defense counsel does not want to go to trial Expensive Expensive Time consuming Time consuming They may pay out a lot more money They may pay out a lot more money The Court prefers that the case settle: See above. The Court prefers that the case settle: See above.

33 terrywickscrna@gmail.com Honesty is the best policy Cervantes Questions & Discussion


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