Order In the Court

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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
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

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