Mistakes To Avoid As A Disclosed Expert Witness

As you are getting acquainted and considering how you are going to launch your nurse expert career, who you will market to, and why, there are a few things to consider for avoiding mistakes.  

Being disclosed means your client will tell the other side your name and nursing opinions regarding the case.  There are numerous areas nurses are hired to review a case but not necessarily disclosed.  This is an important distinction and clarification should be made early on before accepting a case to review.

One of the most important concerns is to spread yourself too wide.  If you have been asked to review or you are considering accepting a case in an area you have never worked in, never been educated in and perhaps not even licensed in, is unethical.  Your expertise and credibility are at stake.  You do not want to be known as a “hired gun.”  Your expertise is in the field you have experience in, that you understand, trained, and practiced in.  You have the nursing knowledge about the in and out of that particular area of nursing. 

Your potential client, who reaches out to you to review a case, may think, and their understanding may be that nursing is nursing, no matter the area of nursing.  To some extent, this is true.  However, there is the definition of the nursing standard of care we all follow. However, each area of nursing will have variances of procedures and protocols from ICU, Cardiac, Urgent, Emergency room, Long Term Care, Hospice, and Pediatrics to mention a few of the various areas a registered nurse may gain expertise. 

Perhaps this is best explained by examples.

 

#1 Example:  

I was asked to review a case in an SNF (Skilled Nursing Facility) for an incident where the resident was injured.  I was very familiar with the skill needed, performed the skill many times in my current employment, and I understood the Federal and State regulations for the event.   I was fully qualified; however, the problem occurred with my being considered as a disclosed “expert witness” to review the case.

This particular SNF unit is situated inside a hospital-based facility and not a “free-standing facility.”  Because of most of my recent SNF experience and the specific State requirements regarding a disclosed expert witness, I could not be a disclosed expert.  I was able to review the case and discuss my nursing opinions.  The client had the time and expense of finding another expert who had worked in a hospital-based SNF unit.  

It is essential to be very clear about your experience, work environment, and training to be sure you are the correct fit.  It can be a fine line, but essential.  You do not want it to come to the court's attention that you have not worked in a particular area you are speaking and giving your expert opinion.  The risk of the case being dismissed and thrown out is high. 

 

 #2 Example:  

 When accepting a case to review, you need to have a clear understanding of the expectations of your review to provide your nursing opinions to the client or if you are going to be disclosed.  Most importantly, you need to hold a current license for the area you will be disclosed and testifying.  You do not want to be disqualified by the court.

In a past case, the opposing side had presented their expert witness for the deposition[1].  My client was getting ready to depose her and to find out the expert witness opinions. The witness had presented the review and a written notarized affidavit[2].  The client who hired this witness had not performed a sufficient background, nor had the expert witness given full disclosure of her background.  This witness was not licensed during the period of time of the case she was testifying.  In other words, since she did not hold a license during the period of the event, she was testifying.  Additionally, her sworn and notarized affidavit was void, not truthful, and she was disqualified as an expert witness for no current license during the appropriate time frame. Her credibility as an expert witness was now in jeopardy for future cases. 

This is a situation of not being current with your license and a position you never want to find yourself in.  Additionally, the continuing education to maintain a current license is essential and you may be requested by the court to present these certificates and support your expertise and valid license.    

In Review:

Being truthful, accurate, full disclosure of your education, training, and work experience is extremely important, and it cannot be overemphasized when you are a disclosed expert witness. 

 

Undisclosed Nurse Expert

If you have accepted a case for fact-finding, working with the client for an undisclosed nursing opinion to assist the client with the case,  this is quite different than being disclosed.   Your nursing opinion on the deviation in the nursing standard of care can be valuable.  Your client should fully understand your expertise and your experience may not be in the area you are reviewing.  This is a different situation.   You are just a behind the scenes consultant which many nurses prefer to do, and they are extremely helpful for their clients 

Often law firms will hire nurses directly to organize the case medical records, work on discovery, and assist with a case, including finding an expert in the field of the case.  There are many areas for nurses to grow, assist, and develop their nursing legal skills to assist others.

 

“Once in a lifetime go somewhere you have never been.”

 Dali Lama

 

 


[1] a proceeding outside the courtroom in which a party or witness gives sworn testimony under oath before a court reporter, who then creates a written document; the written document created as a result of such a proceeding

[2] A written statement of facts voluntarily made by an affiant under an oath or affirmation administered by a person authorized to do so by law.

 

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