Lions, Tigers and Bears, Oh My! The WOC Nurse as a Legal Witness Iowa Affiliate of the WOCN Society October 6, 2017 Lee Ann Krapfl, BSN, RN, CWOCN

Types of Witnesses Defendant or plaintiff Fact Witness Expert Witness

Expert Witness Expert qualifications (education, certifications, work experience) Knowledge of prevailing standards of care, clinical practice guidelines, and regulations Stay within the scope of practice; some states still require a MD to testify on causation Good written and verbal communication skills Vitae Memberships in professional organizations Publications Public speaking

Discovery Review of the record Reports/opinions of experts Depositions of staff, patient, family Policies and procedures Federal/state regulations Clinical Practice Guidelines Relevant articles and texts Diaries, photos, notes

Process Contact from plaintiff or defense team – case is briefly outlined Send copy of vitae and fee schedule Once accepted as an expert, signed contract, complete W-9, determine volume of records, how you want them-digital or paper? and timeframe for completion Records may include: the complaint, medical records, policy/procedures, declaration and report summaries of other experts, depositions of witnesses. Keep copies of all written communications to include: memos, Faxes, emails, reports (including all drafts and edits) Keep a record of your time for billing purposes

Tips Review the complaint(s) Records review – organized process Build a timeline of events Keep track of certain pages (Bates stamped) by using post-it notes or building in page numbers into your timeline. Keep copies of any reference materials you may use to formulate your opinion.

The Case Typically, each side will have several different experts Physician(s) Actuary/financial expert Nursing administration Wound clinician Ideally, the experts for each side do not contradict each other.

Throw Everything But the Kitchen Sink Pressure ulcer prevention, recognition, and treatment Prevention and treatment of other wounds (retained gauze, NPWT sponge) Communication(written and verbal) with the MD, team and patient/family Staffing, supplies, resources Education of staff Policies and procedures Pain assessment and management Nutrition and hydration Incontinence management Fall prevention Infection prevention and recognition Contractures

You Are a Teacher Help the legal team understand the medical issue in question and the medical record Do not use medical jargon. Express complex information in a manner understood by others without medical background. Express confidence in your analysis and judgment to handle intense cross-examination

Standard of Care What a reasonable nurse would do if faced with the same or similar circumstances Documentation standard is different than the standard of care. Documenting by exception is a common practice.

Written reports Respond to each item in the complaint Ask the attorney to advise on short report with few details versus longer report with specific detail. The attorney may want you to write the report. Or they may prefer to write the report and have you sign/notarize.

Deposition Set for a mutually agreed upon time and place Purpose is to find out under oath what opinions the expert is going to render at trial Bring along a copy of your vitae, all billing records and copies of all the materials you have reviewed.

Minimizing Your Risk Document interventions to include support surface, devices, treatments, education of staff, patient and family Do not be constrained by the limitations of forms and computer screens. Notification of MD Document rationale for any interventions that could be viewed as a potential deviation from standard. Keep the family in the loop respecting HIPPA regulations! DO NOT BLAME or use the medical record to joust. Document and communicate the number of pieces removed from the wound (gauze; NPWT sponge) Documentation that the skin is intact when it was not thoroughly examined.

Conclusion Litigation is on the rise. Your actions may help to minimize your risk and your agency’s risk of litigation. Your knowledge and skill provide value to the legal process. Litigation can provide an educational opportunity.