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Experts in their own right

Nurses bring their clinical expertise into law offices and courtrooms

Sep 03, 2015, By: Sue Cavanaugh
Chris Rokosh (right) discusses a case with lawyer Maia Tomljanovic.
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Chris Rokosh (right) discusses a case with lawyer Maia Tomljanovic.

A patient, Mrs. Jones, is back in her room on the unit after surgery. The nurse comes in to take her vital signs and finds that Mrs. Jones’ blood pressure is much lower than presurgery, her pulse is much higher and she appears pale and weak. The nurse documents the findings and tells the charge nurse that Mrs. Jones may be in danger of shock or internal bleeding. The next time a nurse comes to do an assessment, eight hours later, Mrs. Jones is dead. The family files a lawsuit against the hospital. Did the nurse do anything wrong?

In cases like this, lawyers often hire nurses as consultants to determine whether there was a breach of nursing standards of care. They provide expert opinions and analysis of adverse medical events for the prosecution or defence in medical malpractice lawsuits, personal injury cases , class actions and criminal court.

According to Chris Rokosh, the nurse should have done more in this scenario. “It’s not enough to say, ‘I told somebody in charge that there was a problem.’ You do something and then you take the time to find out if it worked, and if it didn’t, you figure out what you’re going to do next,” she says. “That’s a big part of many malpractice lawsuits that I see. Nurses have to accept the responsibility that the problem is yours until it is fixed. Telling the charge nurse or telling the doctor does not absolve you of responsibility.”

Rokosh has seen this kind of communication breakdown happen many times. In the last 14 years, she has provided her expert opinion on more than 300 cases and has reviewed more than 1,000. She is president of Connect Medical Legal Experts, a Calgary-based company that matches health-care professionals with lawyers.

The U.S. has recognized nurses as experts since the 1980s, after a court case determined that doctors were not qualified to provide expert opinions about nursing care. In Canada, nurses have been providing lawyers with opinions on nursing care for decades, but what is new in the last 10 years or so is the idea that this may become a new area of nursing practice.

In 2001, Rokosh was an RN with extensive experience in labour and delivery when a lawyer approached her to give her opinion on a case. “I loved it [the process of providing an expert opinion], but I knew so little about the legal system…I’d never even been in a courtroom before. I knew that if I was ever going to do it again that I wanted to do it really well,” she explains. “I’d been a nurse for 25 years but this was like going back to kindergarten.” That experience started her on a new career path that included studying with the American Association of Legal Nurse Consultants.

The role of expert witnesses is to provide clear, unbiased, defensible opinion on nursing care, based on their clinical expertise. They work in a variety of areas including medical malpractice; class-action lawsuits involving faulty devices or medications; vehicle, property and workplace injury; occupational health and safety; and criminal law. Lawyers may ask them to review a claim at the beginning of a case to determine whether there is any merit to it, analyze medical records, review statements from patients and health-care professionals, advise them about which documents need to be requested from the hospital, write reports detailing their findings and appear in court as experts to defend their opinions under cross-examination.

Most cases do not go to court and those that do can take years to get there. In those cases, Rokosh explains, “you don’t automatically get accepted as an expert in court, ever. The role of the other side, whether you’re working for the plaintiff or the defendant, is to always try to get you disqualified.”

“Lawyers and courts seek the expert opinion of nurses who can objectively demonstrate that they are knowledgeable, competent and have solid clinical judgment in the area of nursing practice that is the subject of litigation,” says Chantal Léonard. She is the CEO of the Canadian Nurses Protective Society and a lawyer who has defended health- care professionals for more than 20 years. “Each nursing expert will be asked questions to demonstrate his or her relevant nursing expertise at the beginning of his or her testimony. Only then will the court recognize that the nurse has the necessary qualifications to testify in that specific case.”

To maintain their status as nursing experts, Léonard says nurses need to continue to be involved in clinical care — including as a supervisor or instructor — so they remain familiar with the ever-changing standards of care. “There are certainly non-traditional nursing roles in which nursing judgment can be valuable. However, when it comes to expert testimony, a nurse who has left the active practice of nursing may soon find it difficult to be qualified as an expert.”

The time commitment to a case may range anywhere from six hours to several years of full-time employment in the case of a major class-action lawsuit.

The number 1 priority for a nurse working in this area is to remain impartial. “You have to check yourself quite often,” Rokosh says. She explains that if a nurse cannot remain unbiased because of strong personal or religious beliefs or the nurse has heard about the case for years on the news and has already formed an opinion about what happened, then he or she should step away from the case.

Medical malpractice cases can be particularly emotional to work on. In Canada, minor issues and complaints against health-care providers generally do not go to court. The only cases that do are those in which people have suffered significantly negative, even catastrophic, outcomes because of an interaction with the health system. Nurses must be able to maintain distance and impartiality and to look at the case from the perspective of an RN, not a friend or family member.

Rookie consultant Jody Wright of Calgary has 15 years’ experience in pediatric nursing. She has worked on only a few cases since beginning to consult in late 2014. Even so, she feels that getting involved in this line of work has changed the way she practises. “I’m much more aware of the importance of documentation and of the implications of not being clear in the way I communicate,” Wright explains.

She says one of her challenges is that she is a team-oriented person and likes working with co-workers nearby to help her troubleshoot problems and find solutions together. In many ways, legal consulting is the opposite of that; in these situations, nurses are on their own, working independently to develop their own strong, clear and defensible opinion on a case.

Nurses working in this area also need to be well organized, patient, analytical and able to explain their findings clearly in a way that non-medical people will understand. That is something Rokosh says nurses are generally already very good at, considering how much time they spend talking with patients.

Both Rokosh and Wright say they have heard more than once from colleagues, “How can you do this to other nurses?” Wright says she explains that her work is not about catching or tearing down nurses; it is about providing a service that will lead to better education and a better system. Rokosh notes that nursing regulatory bodies require RNs to speak up about improper care and do what they can to rectify it when they see it. She sees her job as a logical extension of this.

The Canadian Nurses Protective Society “encourages nurses to take an active interest in the law, which is relevant to virtually all aspects of nursing practice,” Léonard says. However, she cautions that “it is important for nurses to know that legal knowledge or qualifications are not required to provide expert advice on nursing standards of care and that there is no form of certification that can qualify nurses to testify as experts.”

Angela Sibbald, Legal Nurse Consultants Association of Canada president, strongly advocates for legal nurse consulting to one day become recognized as a certified nursing specialty.

Nurses should have at least five-to-10 years’ experience in a particular specialty before the court will consider their opinions as expert. She recommends that nurses who want to get into this field take a law course to get a feel for how the Canadian legal system works. Many colleges, universities and private companies offer courses for those who are interested in learning about the legal system.

In the future, this emerging field may expand beyond law offices and courtrooms and into hospital risk management, insurance companies and workers’ compensation boards — areas that are starting to recognize the value of having nursing experts advise them.

“The role of the legal nurse consultant is really on the cusp…there’s so much more to do in Canada ,” Rokosh says. “We’re just starting!”

Sue Cavanaugh is a freelance writer in Ottawa.