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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

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Order In the Court

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  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 • Staying Out of Trouble • A Few Legal Points and Definitions • What Plaintiff’s Attorneys Want • What Defense Attorneys Want • Being a Competent “Expert” Witness

  3. 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…

  4. 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).

  5. 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

  6. 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

  7. Negligence is all about… • A duty of care • Breach of that duty • Injury • 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. • Local v State v National Standards

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

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

  11. Res IpsaLoquitor • 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

  12. 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.

  13. 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

  14. 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.

  15. 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.

  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. • 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.

  17. 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

  18. 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.

  19. 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.

  20. 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.

  21. 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

  22. 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?

  23. 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?

  24. 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

  25. 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?

  26. 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?

  27. 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?

  28. 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

  29. 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

  30. Sworn Testimony Deposition Testimony • is sworn testimony • Is less formal than a trial • Is always recorded & may be video taped • 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 succinct • Answer briefly and precisely • Don’t elaborate unnecessarily • Always be honest • Always dress professionally • Always be polite

  32. 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.

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

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