The role of the practice nurse as an expert witness

You may recognise that you are good at what you do, but have you ever considered that you might qualify as an expert witness in a medical negligence case?

In recent years there has been an increase in litigation against practice nurses as a result of patients believing they have received care below the standard to which they are entitled. Part of the legal process will be for the solicitor acting on behalf of the patient (the claimant) and the nurse (the defendant) to obtain expert witness reports from a clinician working in a similar role. Writing expert witness reports is an interesting spin off for practice nurses who enjoy writing and want to use their clinical expertise to assist the legal process for both patients and nurses.

There is a range of factors that may have contributed to the increase in litigation, including an increased awareness of litigation among the general public and the higher degree of clinical responsibility and complexity attached to the role of the nurse working in general practice. The autonomy of the role of the practice nurse and nurse practitioner is one of its attractions. However, the constant companion of this autonomy is the associated professional risk, which must be underpinned by appropriate training and crucially, an acute awareness of the boundaries of safe practice and when to refer. The role can be professionally isolated and pressure to work beyond areas of expertise heightens the necessity for the nurse working in general practice to set limits to his or her own practice as defined by their knowledge and competence.

When a patient approaches a solicitor to make an allegation of a breach of duty against a practice nurse, the solicitor will need to assess whether there is any likelihood of the claim being successful. He will be seeking to establish firstly if there was a breach of duty and secondly whether this led to the harm the patient has experienced. For this he will need the assistance of an expert witness who can analyse the evidence and write a short report. If the expert witness report concludes that there may have been a breach of duty, the solicitor will instruct the expert witness to provide a full report based on the evidence, usually transcripts of the medical records and witness statements. Based on the conclusions, the solicitor will draw up a list of allegations of negligence to present to the defendant’s solicitors. The final stage in the legal process is a trial in court, and the expert witness may be summoned to attend as a witness for his or her evidence to be cross-examined by the barrister working for the other side. However, most cases are withdrawn or settle before this.

The role of the expert witness is to use legal tests to assess the standard of care delivered, based on the evidence, and crucially to offer an expert opinion on whether or not it met these standards. It is recognised that in health care, and definitely in primary care, there are uncertainties and justifiable reasons for variations in management of clinical presentations. Clinicians are certainly not expected to have a crystal ball and foresee and prevent every possible adverse outcome for patients. However, clinicians should have acted in accordance with a reasonable and responsible body of similarly experienced clinicians in their field. Care should be – as far as possible – in line with the most up to date, recognised clinical guidelines that are available.

Writing expert witness reports has certainly made me reflect on my own practice and importantly the quality of my record-keeping. In the event of a claim, the medical record will be a key piece of evidence and claims are often made several years after the consultation with the patient. It is unlikely that you will remember the consultation in question, and therefore accurate record-keeping and clear documentation is of paramount importance.

The types of cases practice nursing experts have been involved with include whether or not a claimant should have been referred for further medical opinion (e.g. vascular, gynaecological) following attendances with the practice nurse, management of diabetic foot ulcer, travel immunisation issues, failure to suggest a pregnancy test and issues relating to insertion/removal of the subdermal contraceptive implant.

When instructed to write an expert witness report, you are often presented with a huge amount of documentation in the form of medical records, much of which will be irrelevant to the aspect of the case you are concerned with. An important skill is to be able to filter this information appropriately and focus in on what is relevant. The over-riding responsibility of the expert witness is to provide a clear, objective opinion on the management of the patient and whether or not it satisfied the legal tests. If you enjoy writing, and have an ability to be analytical and objective about standards of clinical care, then writing expert witness reports is a challenging and satisfying way of using your primary care nursing experience.

If you have been qualified for a minimum of 10 years and you are interested in finding out more about this role or the opportunities to be an expert witness with Somek and Associates please contact:

Somek & Associates

Tel: 01494 792711

Email: recruitment@somek.com

Web: www.somek.com