The expert nurse witness

Headnote

This information is intended for general use only. Specific situations should be reviewed by legal counsel. If you have questions about OR nursing law that you would like answered, please send them to OR Nursing Law, c/o AORN Journal, 2170 S Parker Rd, Suite 300, Denver, CO 80231-5711.

It comes as no surprise to any perioperative nurse that the lay public has an incomplete and sometimes erroneous perception of what perioperative nurses know and do. When a question about the adequacy of a perioperative nurse's actions or competency is brought to the legal system, however, lay judges, juries, attorneys, or administrative law judges must make decisions as if they understood perioperative practice. To make these decisions, they cannot rely on their own knowledge; they must be assisted by documentary and testimonial evidence. More often than not, they require the assistance of an expert nurse witness. This column briefly defines the role of an expert witness, traces the evolution of the need for expert nurse witness testimony, and describes the consultative services a nurse expert can provide.

DEFINITIONS

According to Black's Law Dictionary, an expert is

a person who, through education or experience, has developed skill or knowledge in a particular subject so that he or she may form an opinion that will assist the fact finder.1(p619)

An expert witness is a person

qualified by knowledge, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue.1(633)

An expert witness differs from a material or lay witness in two respects: the expert usually has no first-hand knowledge of what led to the case and unlike material witnesses who are limited in their testimony to providing objective descriptions of what they observed or did, an expert witness is allowed to give his or her professional opinion and draw conclusions.

THE NEED FOR NURSE EXPERTS

Expert nurse witnesses typically are needed whenever the adequacy of another nurse's actions are in question. Usually this occurs in disciplinary proceedings against a nurse licensee before an administrative law judge or in malpractice cases where the actions of the nurse are alleged to have contributed to a patient's injury.

For decades, most courts accepted that physicians had the necessary expertise to explain...