Expert witness: Ready for a Perry Mason moment?

Tips and tricks to know before taking the stand

Infection control professionals considering the exciting trial by fire of being an expert witness should be ready to "think like a lawyer" and realize they are entering into a realm where there are more questions than answers, a former colleague turned attorney advised.

"When you’re in infection control, you usually have answers," explained Julie A. Savoy, BSN, RN, JD. "You can tell them, This is contact isolation, or standard precautions is all you need.’ Now I find that in this role, all I have are the questions. All I have are the issues. There aren’t a lot of answers, and you have to become comfortable with that."

A veteran ICP who decided to make a career change and go to law school, Savoy described the role of the expert witness recently in San Antonio at the annual conference of the Association for Practitioners in Infection Control and Epidemiology (APIC).

"Being an expert witness is very exciting," she said. "It’s worthwhile because you get the opportunity to really vindicate the rights of an injured individual or to be able to protect a health care provider in a meritless suit. But it’s very difficult. You’ve got to have a good attorney team. You’ve got to have good preparation, and you yourself have got to be very solid to put yourself through that."

Attorneys may seek out ICP experts when a medical-related case hinges on an epidemiological issue.

"To be an expert witness, you’re going to want to be the one who is up there on the stand providing that Perry Mason moment for the attorney who has employed you. They happen," added Savoy, a lawyer with the Gachassin Law Firm in Lafayette, LA.

The battle is joined

But before one gets to that dramatic moment, there are legal details, gamesmanship, and the dreaded deposition. Once the legal battle is joined, there is a process called "discovery" when both sides review the facts and decide whether to negotiate a settlement or proceed to trial. Even at this early point, ICPs may be contacted either as potential expert witnesses or as legal nurse consultants, she said. The roles are different, because the nurse consultant will not be taking the stand and providing expert testimony to the jury.

"A legal nurse consultant really works behind the scenes," she said. "Typically, they are employed on a contract basis or in some large firms on a full-time basis by the firm that does a lot of medical malpractice, defense, or plaintiff’s work. They often act as kind of a paralegal."

The nurse consultant somewhat serves as a gatekeeper, considering the issues and weighing in on the legitimacy of the claim, she noted. In medical malpractice litigation, the question often is has there been a breach in the standard of care? That requires a precursor question: What is the standard of care?

"Typically, a lay jury or a judge is not expected to have that knowledge. They require the assistance of an expert to provide them with what the standard of care is and whether there was a breach in that said standard of care for a given case," Savoy said.

That’s where the ICP as expert witness comes in. "Typically, if we’re talking about infection control or employee health, you’re going to need an expert in that area to explain to the jury what the standard is and what occurred in that particular case," she said.

The judge first will determine whether testimony of an expert to is testable, peer reviewed, and has widespread relevant scientific acceptance.

"This could be tailor-made for infection control science and epidemiology," she said. "Just about anything that you would end up being called to testify about in infection control or hospital epidemiology is going to meet these criteria. If it doesn’t, you probably shouldn’t be testifying."

By the same token, ICPs should not venture outside of their area of expertise when providing expert testimony. "If you’re in a long-term care setting, I caution you against becoming employed as an expert in an acute case because that’s a very weak spot in your translation of knowledge that the other side’s going to attack," Savoy warned. "Even though you’re certified and you have the basic knowledge, it’s not where you practice every day."

Make sure you use relevant current, reputable references and that your opinion is based on an "objective" review of the facts. "Yes, you’re being employed by them, whichever side that you choose to be employed by, but you’ve got to sleep at night," she said. "You have to make sure — because it’s your knowledge that’s going to be up there on the stand — that what you’re testifying to is grounded in science."

The dreaded deposition

The discovery phase of the case also includes the deposition, where the attorney from the other side asks you questions for the record. "Even this far down the road toward trial, there may be room for settlement negotiations at that point," she said. "They want to see what it is you have to say. In a deposition, they’re really not going to be attacking you. They are more trying to be your buddy usually and kind of get all the information that they can out of you."

Typically, when attorneys depose expert witnesses, they will ask about qualifications, education, experience, and publications. "They want to know what expert opinions you have come to in your review of the case," she said. "They want to know what the basis of your opinions are. In other words, if you feel that there is no breach of the standard of care, what made you come to that conclusion?"

An attorney may try to determine if the witness made any assumptions in reaching an opinion because assumptions are subject to attack at trial. Depositions are difficult but not as demanding as the actual testimony and cross-examination that follows, she said.

"What we’ve seen from juries is that they expect the testimony that you’re going to provide as an expert to be complicated. It’s got to be complicated, or we wouldn’t need an expert," she said.

The jury may have preconceived notions that you are going to be biased and condescending. "The best thing I can tell you is all of us in our roles every day teach and teach our co-workers and the providers that we work with," she told APIC attendees. "That’s what you’re going to get up there and do as an expert witness. You’re going to teach the jury the science of the case and the facts, and a good attorney leads you through that process."

That is well and good, but next is cross-examination, when the opposing attorney may try to discredit you or your testimony. "Maintain your composure above all," she advised. "Do not become defensive. The jury is not stupid. They realize what that attorney is trying to do you. They realize [that person is] trying to confuse you. They realize [he or she] is putting things out of context. Be careful. Listen to the question. If you’re working for a good attorney, you will have been well prepared at that point."

Don’t overstate expertise

Being ill prepared could lead to disaster, as in a case where an expert witness somewhat overstated her expertise in infection control, Savoy recalled.

"The woman was not certified; she was not a member of APIC," she said. "They’re going to attack your credentials. Above all, maintain your credibility. There’s nothing worse than someone who overinflates. So be very, very careful. If anything, be humble in your expertise; be confident in your knowledge, but be humble. And teach. As I said earlier, teach the jury."

Another typical strategy is to review the witness’s prior positions in publications and testimony. "Have you ever testified before and said something differently than what you’ve said in this case?" she said. "Probably so, and maybe there was a reason for why things were different in that case. The facts were different. The hospital was different. The patient was different. But they’re going to attempt to use it against [you]."

Looking for further inconsistency, the opposing attorney will compare and contrast your testimony with what was said in the deposition, she warned. "They love to throw those depositions in your face so you’ve got to be real familiar with your deposition testimony going in there," she added.

After cross-examination, the attorney that hired the witness has the opportunity to "re-direct," essentially clarifying and restoring the proper context to the testimony. "A good attorney is going to prepare you ahead of time and pick you back up and recover you — rehabilitate the witness, so to speak — when the other side is finished with you," she said.