useofexpert$ witnessesin contested$cases ·...

USE OF EXPERT WITNESSES IN CONTESTED CASES

BY: JAMES (DUSTY) JOHNSTON GENERAL COUNSEL

TEXAS BOARD OF NURSING

SCOPE OF PRESENTATION WARNING

 Although most jurisdic0ons may have similar, or even iden0cal rules of evidence, this presenta0on is rooted in the Texas rule of evidence

TEXAS RULE OF EVIDENCE RULE 702

TESTIMONY OF EXPERTS

 If scien0fic, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or educa0on may tes0fy thereto in the form of an opinion or otherwise

FEDERAL RULE OF EVIDENCE 702 ◦  Tes0mony by Expert Witnesses ◦  A witness who is qualified as an expert by knowledge, skill, experience, training, or educa0on may tes0fy in the form of an opinion or otherwise if:

A.  the expert’s scien0fic, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

B.  the tes0mony is based on sufficient facts or data; C.  the tes0mony is the product of reliable principles and methods; and D.  the expert has reliably applied the principles and methods to the facts of

the case.

RELEVANCY OF EXPERT TESTIMONY

 QUALIFICATIONS TEST – “Knowledge, skill, experience, training and educa0on”

 KNOWLEDGE TEST – “Scien0fic, technical or other specialized knowledge” ◦  Expert cannot offer an opinion based on a discipline that lacks reliability (e.g. Astrology)

 HELPFULNESS TEST – “Assist the trier of fact to understand the evidence or determine fact issue”

DAUBERT V. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579 (1993) AND ITS PRODIGY

 The U.S. Supreme court pronounced a standard to be used in all federal courts regarding the admissibility of expert witness tes0mony.  Now used and adopted by a majority of jurisdic0ons in the united states

DAUBERT PRINCIPLES

 Judge is gatekeeper and determines admissibility

 Relevance and reliability

 Judge must ensure that the expert's tes0mony is "relevant to the task at hand" and that it rests "on a reliable founda0on”

 Judge must find it more likely than not that the expert's methods are reliable as applied to the facts.

 Scien0fic knowledge must be the product of sound "scien0fic methodology" derived from the scien0fic method

DAUBERT PRINCIPLES (Cont.)

 FACTORS THAT ESTABLISH SCIENTIFIC METHOD

◦ Empirical tes0ng: whether the theory or technique can be tested

◦ Whether it has been subjected to peer review

◦ The known or poten0al error rate ◦ The existence and maintenance of standards and controls concerning its opera0on

◦ The degree to which the theory and technique is generally accepted by a relevant scien0fic community

COMMON EXPERT NEEDS IN CONTESTED CASES

 Standard of care for RN, LVN or APRN prac0ce  Scien;fic results such as toxicology reports/drug tests  Medical and psychological evalua;ons

 Unprofessional conduct (boundary viola0ons, fraud and deceit, drug viola0ons and their nexus to nursing care)

 Applica0on of board rules and disciplinary policies?

STANDARD OF CARE-‐ APPLICABLE TO ALL NURSES AND ALL SCOPES

 Know and conform to the nursing prac0ce act and rules or regula0ons affec0ng the nurse's current area of nursing prac0ce

 Implement measures to promote a safe environment for clients and others

 Know the ra;onale of medica;ons and treatments and shall correctly

 Accurately and completely report and document

 Respect the client's right to privacy, and maintain professional boundaries of the nurse-‐client rela0onship

STANDARD OF CARE IN SPECIALTY AREAS

 Emergency room nursing  School nursing  Medical surgical floors  Intensive care units and pediatric intensive care units

 Nursing homes  Home health and hospice  Labor and delivery

USE OF IN HOUSE STAFF OR OUTSIDE EXPERT CONSULTANTS

EXPERT TESTIMONY FOR STANDARDS APPLICABLE TO ALL SCOPES OF PRACTICE

 EASIEST TO USE BOARD STAFF NURSES ◦ Documenta0on errors or failure to meet facility policies that set minimum standards

◦ Be prepared for arguments of witness bias ◦ Be prepared for claims of selec0ve prosecu0on ◦ Less expensive

 CONSIDER WHETHER EYE-‐WITNESSES CAN BE YOUR EXPERTS ◦ Director of nursing is ofen a well-‐qualified professional ◦ Charge nurses ofen know the standards and policies ◦ Nurse peers should know the standards ◦ Don’t need a contract

EXPERT TESTIMONY IN SPECIALTY NURSING AREAS

 Do not use staff consultants who do not have experience in specialty area

 Outside consultants are the best prac0ce

 Consider eye witnesses (such as don or charge nurse) if they are experts in same field

STANDARD OF CARE (ADVANCED PRACTICE NURSING)

 PHYSICIAN EXPERTS ARE GENERALLY THE BEST PRACTICE ◦  Only one standard of care (APRN’s do not provide a lower standard of care just because they are professional nurses and not physicians)

◦  Experience shows physician experts are more persuasive to the administra0ve law judge

 PHYSICIANS ARE NOT THE APPROPRIATE EXPERT FOR CRNA PRACTICE

 APRN EXPERT IN SAME SPECIALTY IS SUITABLE EXPERT ◦  Likely less expensive than physician experts ◦  CRNA should be used for CRNA prac0ce ◦  Be wary of using nurse midwife experts

 CONSIDER USING LABOR AND DELIVERY RN FOR NURSE MIDWIFE PRACTICE ◦  L & D nurses can adequately educate judge on risks and duty to pa0ent(s) in labor ◦  L & D nurse documenta0on & monitoring prac0ces should be minimum standard of all nurses

ALWAYS USE STAFF APRN IN APRN SCOPE OF PRACTICE CASE

 Even if APRN is not licensed in same role, popula0on or specialty area  Can explain nature of APRN licensure ◦  Explain educa0on and cert. ◦  Explain what advance prac0ce means based on iden0fied area of specialty

◦  Regula0ons authorizing medical management may be hard for ALJ to understand

◦  May be able to nexus between viola0ons and appropriate sanc0on

LVN OR PN SCOPE OF PRACTICE VIOLATIONS

 Consider using LVN/PN educator as expert

◦  Explain LVN/PN scope of prac0ce ◦  Explain LVN/PN educa0on

SCIENTIFIC EVIDENCE (DRUG SCREENS AND TOXICOLOGY)

 Every board should find and retain an expert toxicologist (even BSN toxicologist is good)

 Toxicologist can explain the science and scien0fic method

◦  Very versed in applicable literature ◦  Can educate the staff and ALJ ◦  Can explain metabolites and all known causes for results

SCIENTIFIC EVIDENCE (DRUG SCREENS AND TOXICOLOGY)

 Every board should contract with a drug screening company and its expert

 Laboratory should provide “li;ga;on packet” ◦  Establishes chain of custody ◦  Explains theory of tests ◦  Explains all techniques the lab uses ◦  Explains any peer review of techniques ◦ Demonstrates reliability of tests and error rates

 Lab co. expert is normally very experienced in test and giving tes0mony

 Lab co. expert can ofen establish necessary founda0on for admission of test results as well explain the validity of test results

MEDICAL OR PSYCHOLOGICAL EVALUATIONS

 Texas can request forensic evalua0ons and require physical or psychological evalua0ons

◦  Neuropsychological evalua0ons ◦  Sex offender evalua0ons ◦  Chemical dependency evalua0ons ◦  Forensic evalua0ons (criminal conduct

and unprofessional conduct)

 Referral ques;on: can respondent prac0ce nursing safely?  If evalua0on bad, put expert under contract  Psychologists who perform objec;ve tes;ng are best prac0ce

◦  Tests includes: Minn. Mul0phasic Personality Inventory (MMPI2), personality assessment inventory (PAI), and Substance Abuse Subtle Screening Inventory (SASSI-‐3)

◦  Remember: these tests are generally accepted, reliability can established, peer reviewed and subject to standards and controls

 Physicians are not the best prac0ce for psychological evalua0ons due to lack of objec0ve tes0ng

EXPERT TESTIMONY REGARDING UNPROFESSIONAL CONDUCT

 Boundary viola0ons, fraudulent or decep0ve behaviors, and/or drug related viola0ons

 Staff experts are best prac0ce ◦  Easier to establish seriousness of these viola0ons ◦  Can explain nexus between viola0ons and safe nursing prac0ce ◦  Can explain ra0onale for board rules and regula0ons ◦  Discuss appropriate sanc0on to protect public and provide safe nursing care

 Expert psychological evalua0ons may aid in establishing seriousness of viola0on

USE OF EXPERTS FOR APPROPRIATE SANCTION RECOMMENDATIONS

 Wouldn’t this type opinion invade the province of the court by providing instruc0ons on the law?

 Maybe, but it seems to always be allowed and is very helpful to ALJ.

USE OF EXPERTS FOR APPROPRIATE SANCTION RECOMMENDATIONS

 Staff Expert can give vital educa0on on appropriate sanc0on (assuming viola0ons are found)

 Staff expert normally has years of experience in nurse regula0on

 Can educate the ALJ on the applica0on of the cited rules  Can explain Board’s policies  Can iden0fy why behavior is breach of rules and regula0ons  Can state how the alleged behavior speaks to competency

 Can explain why recommended sanc0on is appropriate ◦  Board policies and precedent ◦  Apply disciplinary matrix

 Is supervision appropriate or is revoca0on recommended

USE OF EXPERTS FOR RECOMMENDING APPROPRIATE SANCTIONS

 May be the most persuasive witness  Not needed if board has established highly developed and rigid rules  If you have a Florence Nigh;ngale on your staff, failure to at least try to use them is malprac;ce

EXPERT WITNESSES: SOME LESSONS LEARNED AT TEXAS BOARD OF NURSING

DOCKET NO. 507-‐13-‐2793; TX.BON V. I.G. CASE OF NON-‐THERAPEUTIC PRESCRIBING (“PILL MILL”)

 hlp://www.soah.state.tx.us/pfdsearch/pfds/507/13/507-‐13-‐2793-‐pfd1.pdf

 Physician expert is best prac0ce (so far) ◦  Established the single standard of care for pain management ◦  ALJ will side with physician over APRN every 0me ◦  Respondent normally cannot find a compe0ng expert ◦  Downside: $$$$


 Pa0ent care evidence ◦ Mul0ple medical records ◦  Physician must analyze records ◦  Records must be authen0cated ◦  Best prac0ce is to scan records

 Time consuming to review and analyze records for ALJ

 How many records are enough? (5,10, or 20)

 Par0es agreed 10 of 26 pa0ent records were “representa0ve sample”



 Physician expert is best prac0ce (so far) ◦  Established the single standard of care for pain management ◦  ALJ will side with physician over APRN every 0me ◦  Respondent normally cannot find a compe0ng expert ◦  Downside: $$$$


 Staff’s APRN expert tes0mony ◦  Staff’s expert specialized in women’s health ◦  Explained APRN licensure in Texas ◦  Applicable state regula0ons ◦  Explained the pain management rules of medical board and nursing board and their interplay

 Appropriate sanc0on effec0vely demonstrated ◦  Explained that the seriousness of unprofessional conduct at this level implicates all the nurses’ licenses including RN

◦  Poten0al for harm ◦  Lack of trustworthiness ◦  Poten0al cross over to all prac0ce sevngs


 TAKE AWAYS:

◦  Use physician to explain single standard of care and breach of standard

◦  Use staff expert aprn to explain nurse’s duty to adhere to standards and consequences of viola0ons

DOCKET NO. 507-‐11-‐2458; TX. BON V. R.H. CASE OF COMPETING PSYCHOLOGISTS


 Alleged sexual misconduct and sex offender evalua0on was requested  Results of evalua0on were concerning  Charged with “lack of fitness” due to mental health diagnosis of personality disorder (not otherwise specified) with narcissis0c features  BON retained expert, but opinion was effec0vely neutralized at hearing ◦  BON expert failed to demonstrate all criteria of DSM met ◦  BON expert lost credibility due to her “hos0lity, mistrust and anger” toward respondent

 Note: separate evalua0on was needed, just an alack on credibility of requested eval

 TAKE AWAYS: ◦  An emo0onal expert, no maler how jus0fied, loses credibility ◦  Don’t really need a diagnosis to have concern regarding fitness

DOCKET NO. 507-‐12-‐0530; TX. BON V. K.S.A. POSITIVE DRUG SCREEN


 Alleged posi0ve drug screen for fentanyl  Respondent presented an anesthesiologist who had concluded from some research that a prescrip0on for Cipro may have resulted in false posi0ve for fentanyl  Bon expert was lab director from LabCorp and held a doctoral degree in chemistry

 Fentanyl tes0ng involves: ◦  Ini0al test using “enzyme-‐linked immunologist analysis” (Elisa); and if posi0ve ◦  2nd confirma0on test using gas chromatography-‐mass spectrometry (GC/MS)

 Moral: not even a physician can trump a Ph.D. Chemist and gas chromatography-‐mass spectrometry expert

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