1. 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

2. Types of Witnesses
Defendant or plaintiff
Fact Witness
Expert Witness

3. 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

4. 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

5. 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, s, reports (including all drafts and edits)
Keep a record of your time for billing purposes

6. 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.

7. 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.

8. 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

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.