through the eyes of the expert witness

Ruth EndacottPhD, MA,DipN(Lond), RN, DeputyHead of Instituteand Reader inCritical Care,Institute of HealthStudies, Universityof Plymouth,Plymouth, UK andSchool of Healthand Environment,La Trobe University,Bendigo, PO Box199, Bendigo 3552,Vic., Australia. Tel:+61 3 5444 7814;Fax: +61 3 54447977; E-mail:[email protected]

(Requests foroffprints to RE)

Manuscriptaccepted: 08/03/02

Original article

Through the eyes of theexpert witnessRuth Endacott

Nurses are increasingly asked to provide expert advice to a court of law, for example througha formal contract as an expert witness or through providing the trust solicitor with aresponse to a complaint from a patient or relatives. The purpose of this brief paper is toshare experiences of undertaking the role of ‘expert witness’ in the UK and to highlightsome of the pitfalls and the wider context in which such a role is undertaken.© 2002 Published by Elsevier Science Ltd.

What is an expert witness?An expert witness refers to a specialist in aparticular field who is prepared to provideevidence to the court regarding accepted standardsof practice. The perspectives needed can rangefrom historical to forward looking (see Fig. 1);however, the central foundation of the role isthe commitment to justify your evidence in acourt of law if necessary. The expert is usuallyengaged following submission of a detailedcurriculum vitae to the legal team; this mustinclude a list of publications and conferencepresentations.

The key requirements to undertake the rolefollow naturally from the definition above:

Providing evidence . . .

The term evidence, as used in a court of law,embraces the wider notion of evidence gainedthrough research but also from professionalconsensus or individual expertise gainedthrough clinical experience. This ethos is inline with the underpinning philosophy ofevidence based practice. However, an expertwould be foolhardy to rest on expert opinionalone where there is a body of researchevidence that may say something to thecontrary. The expert also should avoidcontradicting an opinion that he/she has

previously expressed through publications,unless this can be justified (for example byreference to subsequent research findings).

. . . To the court

Evidence must be both impartial and objective,as emphasised in the Woolf reforms (Woolf2000). It is increasingly likely that the expertwitness will be jointly instructed by bothparties, hence any partisan or subjectivetendencies would be picked up by one side orthe other. From the expert’s perspective, this isa welcome change and reduces the likelihoodof solicitors requesting the expert to remove‘unhelpful’ aspects of their report. The extentof this sort of activity was highlighted by asurvey across a diverse range of professionalexperts (The Times 1997).

. . . Regarding the accepted standard ofpractice

Standards used by the expert may be national,local and single or multi-professional (forexamples of standards that may apply in theUK, see Fig. 2). However, the expert shouldalso define and describe the context ofcontemporary practice relevant to thetimeframe. For example, if a case of negligence

© 2002 Pub l i shed by E l sev i e r S c i ence L td . Intensive and Critical Care Nursing (2002) 18, 73–78 73

doi:10.1016/S0964-3397(02)00021-6, available online at http://www.idealibrary.com on

Intensive and Critical Care Nursing

Fig. 1 Range of perspectives included in the expert witness role.

Fig. 2 Examples of standards of practice relevant to UK nurses.

is being brought in relation to the care of a child,the actual incident itself may have happenedas long as 18 years previously. Expectationsand professional guidance regarding, forexample, the role of parents, may have beenvastly different from current practice. Theappropriate edition of the code of conductand other professional body guidanceregarding professional practice should bereferred to.

Different areas of law relevant tonursesAs has been stated many times, nurses,midwives and health visitors are legallyaccountable to the public, the patient, theprofession and the employer. These four areasof accountability are exercised through civiland criminal law (accountability to the patientand the public), the professional conductcommittee of the professional disciplinarybody, e.g. the United Kingdom CentralCouncil or new Nurses and Midwives Council(accountability to the profession) andemployment law (accountability to theemployer). In these four areas, differentjudgements may be made about the same case.For example, a civil case claiming negligenceagainst a nurse may be unsuccessful becausethere was not proof of harm to the patient butthe nurse may be sacked by his employer fornot working within trust policies and

procedures. An expert may be asked toprovide an opinion in any of these legalarenas. However, one issue is at stake with allof these areas of accountability: whatconstitutes acceptable practice?

Custom and practiceBefore providing an opinion on a specificincident, it is helpful for the expert to describethe context in which care was being provided.An incident for which a nurse is accused ofnegligence may in fact be ‘an accident waitingto happen.’ Part of the expert witness role is toexplore that possibility. Expert reports oftenraise concerns about the overall managementof a department or unit, not just about theincident itself. The ‘evidence’ that an expertwould use to make a judgement about customand practice issues is identified at Fig. 3. Forexample, if the case relates to the manner inwhich a nurse has undertaken a specific aspectof care, the expert may make comment overallabout the staffing levels to support new staffin post. It should also be possible to comparethe off-duty over a period of time with theIntensive Care Unit register or other systemused to identify daily patient workload. Thiswould allow a judgement to be made aboutoverall staffing levels.

The expert may also wish to express anopinion on the number of times that aparticular procedure is carried out in an

74 Intensive and Critical Care Nursing (2002) 18, 73–78 © 2002 Pub l i shed by E l sev i e r S c i ence L td .

Through the eyes of the expert witness

Fig. 3 Evidence reviewed related to custom and practice.

individual unit, hence how familiar/competent are the practitioners with theprocedure? This was a key issue with theBristol Royal Infirmary inquiry into deaths ofchildren following cardiac surgery. Similarlyto what extent do the unit policies andprocedures match national guidelines (forexample, setting alarms on infusion or otherequipment).

To take a more specific example, if anincident relates to an error with druginfusions, the expert may wish to explore thefollowing aspects of custom and practice:

• Does the chart document the actual amountinfused in the previous hour or amount thatwas expected to be infused?

• How do the staff identify if there is adifference?

• What happens if an infusion of a controlleddrug is discontinued?

• What is the usual time lag between drawingup an infusion and starting the infusion?

• Where are infusion syringes stored if thereis a substantial time lag betweenpreparation and administration?

Reviewing specific incidentsThe expert may be asked by the civil orcriminal court to review a specific incident.The civil court will be making a judgementregarding whether negligence occurred. Inorder for a claim of negligence to be upheld,four criteria must hold:

1. The nurse had a duty of care for the patient.2. The nurse breached the standard of care for

that patient.3. Harm resulted from the poor standard of

care (often difficult to prove).4. The harm was ‘reasonably foreseeable.’

The manager can also be held to benegligent, even if he/she was not present atthe time, particularly if the alleged negligencehas arisen from ‘accepted practice’ on the unit.

When reviewing an incident, the expert willneed to know what happened and how ithappened, and what was the precise sequenceof events. The context is often crucial: was theunit particularly busy; were there any staffingdifficulties or unusual workload issues (forexample, an emergency with another patient



Fig. 4 Evidence reviewed related to a specific incident.

depleting the staffing resources) and wheredid the incident happen? These lines ofenquiry allow the expert to provide an opinionregarding whether the standard of care wasacceptable in those circumstances, taking intoaccount custom and practice, as identified inFig. 4.

If there were a range of opinion on whatconstitutes acceptable practice, the expertwould make it clear within his/her reportthat:

although the expert would have adopted adifferent approach, the practice adopted by thedefendant was in accordance with the approachaccepted as proper by a responsible body ofpractitioners skilled in the relevant field.(Cresswell 1997)

Accountability for the actions ofothersThere has been much attention paid in the pastfew years to the responsibility of nurses toidentify the negligent actions of others (or‘whistleblow’). In the contemporary climate ofrisk management and clinical governance, thisshould be less troublesome. In reality, this ‘dutyof candour’ can be a heavy burden to bear.

From a judicial perspective, Woolf (2000)advocated a duty of disclosure if a ‘negligent’act or omission is discovered and Donaldson(1987) emphasised that:

in professional negligence cases, . . . there is aduty of candour resting on the professional man.(Naylor v Preston Health Authority [1987] 2 AllER353 at 60)

Future nursing care requirementsAnother area of work undertaken by experts isthe provision of a nursing care report for apatient who will need (usually long term)nursing care. The aspects generally covered insuch a report for an intensive care patient areidentified in Fig. 5. Whilst the focus willinevitably be on the specific needs of thepatient (for example, what type of ventilatorwill he need and how will he be fed?), thewider context of accommodation for thepatient, family and carers needs to beaddressed. Similarly, will the goal be for thepatient to be mobilised in a specially adaptedwheelchair with ventilator attached? Theexpert role is to explore all these options andprovide a nursing perspective on the resourceimplications. A balance must also be struckbetween enabling the patient and family to


Through the eyes of the expert witness

Fig. 5 Example components of a nursing care report.

feel ‘safe’ with the care and equipmentprovided but not recreating an ICUenvironment. Equipment considerations willbe similar to those for the ICU itself:

• Correct specification of equipment.• Maintenance schedule; how will the patient

manage when the ventilator is beingserviced?

• Capital replacement programme: when willthe ventilator be past its shelf-life?

Care for the patient may be provided by arange of nurses and support workers; againthe expert role is to determine which aspects ofcare require nursing expertise (and what levelof ICU expertise is required, if any?). If thepatient is discharged to another country, theexpert has to identify how nursing roles workin that setting, which is often easier than itsounds and can be influenced by cultural rules.

Becoming an expert witnessThe expert practitioner who is consideringtaking on this type of work has to consider anumber of issues:

1. appropriate training—this should includepreparation of written reports andpreparation for going to court,

2. identify the boundaries of your expertise,3. indemnity insurance. The RCN indemnifies

members who are identified on its’ databaseas undertaking expert witness work.Indemnity is provided to the tune of£1million, provided the expert meets fourcriteria:

• The expert has a written contract with thesolicitor.

• The expert has undertaken relevanttraining.

• The expert has a demonstrable level ofexpertise appropriate to the time of theincident.

• The expert is aware of, and adheres to,court guidance.

Before taking a case, the expert asks fourkey questions:

• Am I adequately prepared?• Do I have the expertise and credibility to

make an EXPERT comment on this case?• Do I have sufficient time to complete the

work?• Do I have enough information?

It is essential to bear in mind that the legalteam may presume that an ICU expert is alsoan expert in, for example, accident andemergency or theatre nursing. By accepting a



case, the expert is declaring that he/she hasthe requisite expertise.

References

Cresswell Hon Justice 1997 Expert evidence the guidingprinciples. Paper presented at the 1997 Expert

Witness conference, 7 November, 1997. Westminster,London

Donaldson L 1987 Naylor v Preston Health Authority 2All ER353 at 60

The Times 1997 Lawyers lean on expert witnesses to altertheir opinions, Monday, 13 October, 1997

Woolf L 2000 Access to Justice. HMSO, London


through the eyes of the expert witness

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