Do you want to avoid traps that will ruin your expert witness practice? Inexperienced experts may be completely oblivious to these traps. Be wary and learn the rules.
Not Quickly Responding to a Case Inquiry
“Would you like to review this case?” You receive a voice mail or email asking if you are interested in reviewing a case as an expert witness. (You may be called by an attorney or expert witness location firm.) How quickly you react will determine to a great deal whether you get the case. How soon do you respond to the request? There is only one answer from the standpoint of the attorney – the sooner the better. Yes, attorneys recognize you have emergencies, take vacations, but in today’s instant access world, if you do not respond as quickly as possible, the attorney will contact someone else. A response within 24 hours is ideal. The request for your services will usually evaporate if you do not quickly respond.
Taking a Case Outside of Your Area of Expertise
Medicine and nursing are highly specialized and separate disciplines. Increasingly the courts recognize the distinctions and will allow an expert’s credentials to be challenged. For example, a plaintiff attorney told me he was planning to use an emergency department physician to testify about the standard of care of an emergency department nurse practitioner. When I suggested he retain an emergency department nurse practitioner, he rejected my advice, until the opposing counsel was successful in challenging the use of a doctor to testify against a nurse.
Make sure you have direct firsthand and extensive experience in the area that is the subject of the lawsuit.
Making a Causation Statement As a Nurse
Nursing expert witnesses focus on the standard of nursing care and how it was followed or deviated from. Physician expert witnesses focus on the standard of medical care and how it was followed or deviated from. In addition, physician experts are permitted to address causation. The physician is allowed to determine if the deviations (if any) from the standard of care caused the patient to suffer certain consequences. In almost every jurisdiction, nursing expert witnesses are allowed very little latitude when it comes to making causation statements. They are subjected to attacks if they try to. If you have questions about what you can and cannot address, please contact the attorney.
Fabricating the Standard of Care
An expert who has an idiosyncratic interpretation of the standard of care will be attacked. Sometimes expert hope their confident, authoritative manner will convince opposing counsel. However, as an expert witness, you are expected to understand the standard of care. Back up your opinions with standards found in nursing literature, regulations, textbooks, and Joint Commission standards.
What’s wrong with testifying about the standard of care in terms of what you would do? Hopefully you are following the established standards of care when you practice. But you lay yourself open for attack by stating your opinion in terms of what you would do. You don’t establish the standard of care, sources that are relied upon do.
Missing a Deadline
A lawsuit has a series of predictable deadlines set by a judge. The court system moves step by step through this process, giving attorneys deadlines to then pass onto their experts. There are direct consequences if the attorney does not produce an expert report by the deadline.
For example, a defendant could be dismissed from a suit if the plaintiff attorney is unable to produce an expert report that describes how that person was negligent.
Take a lesson from Zappos Shoes. This shoe company tells their customers that their order will be shipped in a few days. The employees then routinely ship the shoes overnight. What does buying shoes have to do with supplying reports to attorneys? If you promised the report will be done by a certain date, and you get it done sooner, everyone is delighted. The attorney will have a chance to look at the report; you will be able to edit the report based on this advice. Everyone feels less stress. Read about 3 testifying traps here.
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