- Email: [email protected]
The infection control practitioner as expert witness
Georgia P. Dash, R.N., MS., CIC Elkins Park, Pennsylvania
Although medical malpractice suits seem to be numerous, they are rarely frivolous. In fact, a national survey showed that lawyers rejected 88% of the suits that they were asked to handle.’ Attorneys, it would appear, are not inclined to waste time on cases without real merit. The main reasons that so many cases are rejected are the standards of proof that a plaintiff (the person or persons bringing suit) must meet. Plaintiffs in medical malpractice cases involving infections are obliged to prove the same elements as plaintiffs in other medical suits must prove. To construct a successful malpractice case, a plaintiff must: 1. Establish a standard of care 2. Prove a deviation from that standard 3. Show injury and damage 4. Prove causation of the injury as a result of the deviation from the standard Obviously, the presence of an infection is not always a sign of negligence. For a hospital to be held liable for damages, the plaintiff must prove that the infection resulted from negligence. When the acts of an employee or agency of the hospital are involved, the plaintiff, in addition to proving negligence, must also prove that the facility had sufficient control over the employee or agency to prevent the occurrence. Because of the complexity of medical malpractice cases, expert testimony is required, to define for the court the appropriate standards of care, to assess the quality of care given, and to testify as to how the defendant’s actions conformed with, or deviated from, the standards. The Federal Rules of Evidence (702) define as expert “any person who possesses specialized knowledge, skill, experience, training or eduFrom the Department of Epidemiology, member of United Hospitals, Inc.
Rolling
Hill Hospital,
Reprint requests: Georgia P. Dash, R.N., M.S., CIC, Department of Epidemiology, Rolling Hill Hospital, 60 E. Township Line Rd., Elkins Park, PA 19117.
178
cases, we tend cation.“2 In medical malpractice to think of the physician as provider of expert medical testimony. A review of the literature will show that most of it addresses the physician’s role as expert witness. In cases involving alleged hospital-acquired infection, however, is the physician the expert who can best speak to the issues involved? The infection control practitioner (ICP), after all, is the health care professional who: 1. Gathers the necessary demographic and epidemiologic data 2. Analyzes and interprets the data 3. Calculates the incidence rate for nosocomial infections and alerts the appropriate staff members 4. Knows the organisms most commonly occurring in the institution and recognizes the unusual or multiply resistant organism 5. Institutes patient isolation when needed 6. Reviews Centers for Disease Control (CDC) recommendations and pertinent literature and is responsible for developing policies and procedures 7. Is responsible for educating all levels of personnel regarding infection prevention and control measures When there is a question of nosocomial infection, the certified ICP, by virtue of specialized knowledge, experience, training, and education, is by the court’s own definition an expert. Why, then, would an ICP want to serve as an expert witness? There are any number of reasons: curiosity about what goes on in a trial, a personal interest in the outcome of a case, or perhaps a desire to defend a colleague or correct a wrong. Whatever the reason, it is important that the practitioner protect his or her professional integrity. No ICP should agree to serve until convinced that the case has substantial merit. Once
Volume
15 Number
August
1987
4
persuaded, the true professional will testify whether asked to defend the accused or to support the plaintiff. What is expected of an expert witness in a malpractice case? Obviously, most 1CP.sare not qualified to testify about points of law, and the court is not interested in their opinion of the amount of damages sought by the plaintiff. If any issue becomes a problem, the practitioner should be ready to exercise his or her right to withdraw from a case, without prejudice. In deciding whether to serve, ICPs should review the case given not only the facts, but the state of the art at the time. For example, in a 1977 case that I recall, a patient claimed to have contracted hepatitis B as the result of outpatient surgery performed at a hospital dental clinic. None of the patient’s family had a history of hepatitis; the patient was heterosexual but claimed not to be sexually active, had no history of transfusions, and had no history of drug abuse. As it turned out, a resident who assisted in the surgery was hepatitis B surface-antigen positive. When the case was reviewed in 1980, I had to look back to 1977 and appraise the case by asking, “What was the standard of care in the community at the time? What hospital policies were in place; what written recommendations were available from CDC and the local health department? On the basis of these criteria, did the institution and the ICP provide responsible care consonant with that standard?” A common question asked by colleagues is, “Is it necessary for an ICP to get clearance from hospital administration before serving as an expert witness?” The answer to this lies in the ICP’s relationship with his or her institution and its policies. If no conflict of interest is apparent, and the serving is on the witness’s own time, there seems to be no reason to get such clearance. Another common question is, “How does an ICP who is interested in serving as an expert witness establish a relationship with a law firm? What are the practical and professional considerations?” Generally, an attorney learns about an ICP’s expertise from other individuals in the medical community, or from a professional organiza-
The ICP as expert witness
179
tion to which the ICP belongs. The lawyer then contacts the practitioner, indicating an interest in having that ICP serve as an expert witness. The responsible attorney clearly states whether he or she represents the defendant or plaintiff, and how he or she was referred to the prospective expert. Practitioners should be aware that their initial contact could come from a so-called middleman for a law office. Such people recruit professionals willing to testify in a manner favorable to a particular attorney’s client, under a contractual agreement. Such arrangements have drawbacks. The ICP has no knowledge of the ethics of the law firm or the legitimacy of the complaint, whether he or she will testify for the plaintiff or the defendant, the nature or completeness of the material to be made available, how seriously the practitioner’s views will be taken, or how those views may be manipulated. Under such arrangements, prospective expert witnesses lose the freedom to examine the issues objectively and to form an independent opinion. Because such an agreement could damage, or even destroy, a professional reputation, it is better for a colleague who has worked with the law firm to supply the practitioner’s name. Judgment as to whether to accept the case should be deferred until the attorney has outlined the case and asked the prospect to review the pertinent material and arrive at a preliminary opinion. Such material usually includes medical records, depositions taken from the plaintiff, defendant, and various witnesses, and perhaps a record of the complaint. The practitioner who knows the attorney or the firm should have no trouble receiving payment for the initial work. Dealing with an unknown firm can subject the ICP to the possibility of never being rewarded for sometimes prodigious efforts. The attorney, after all, may simply be trying to decide whether the case has merit, and looking to the practitioner for technical information. To avoid such a “fishing expedition,” it is best for the practitioner and attorney to establish a bond of confidence in each other’s professionalism. The scope of the work to be done by the expert witness will be defined by the attorney, who
American
180
Dash
will agree on a specific contractual arrangement with the ICP. The practitioner who has agreed to review a case should state clearly that he or she will not agree to testify until after assessing the case’s merits. No opinion should be given until all of the data have been reviewed and digested. At that point, the attorney may want to discuss the case in detail, because a written opinion may be seen and used by opposing counsel. The lawyer, having heard the prospect’s views, might decide not to use the ICP as an expert witness, should those views not support the client’s case. If the attorney believes that the ICP may be helpful to the case, he or she will ask for a written opinion. Preparing this report is very important, inasmuch as it will be the basis for subsequent testimony in depositions, the trial, or both, and it may be examined by the opposite side. In addition, because many months may pass before the case is tried or settled, a complete record prepared now will avoid the need to review all of the material again later. The ideal report should contain the following information: (1) a listing of the material reviewed, (2) a summarization of the case from an infection control standpoint, (3) an assessment of each important issue, (4) response to the attorney’s questions, (5) pertinent references and copies of all papers cited, (6) a statement of willingness to testify, and (7) a curriculum vitae. All materials received from the attorney should be kept, as should a copy of the complete report, until after the final disposition of the case. After studying the report, the attorney will arrange a meeting to discuss the case. The lawyer will probably ask a series of questions about specific points, which will later be used to establish the arguments. The next step is the deposition, during which the expert witness is for the first time subjected to the rigors of cross-examination. It and the expert’s written report comprise the testimony to be given later in court. The witness who has carefully written a report, and thereby has formed a well-thought-out opinion, has little to fear from the process. At depositions, opposing attorneys often ask
INFEGION
Journai
oi
CONTROL.
what prior experience the expert has had in malpractice cases. This is designed to determine whether the witness is a “professional expert,” that is, a “hired gun” whose opinion can be both molded and bought. ICPs who have given expert testimony before keep a record of how often they have testified for the defendant or plaintiff. Before the trial begins, the expert witness should know basic legal procedures and protocol to feel reasonably comfortable on the witness stand. The attorney will help him or her understand the manner of questioning, the rules of evidence, the proper titles of people in the courtroom, and the room’s physical arrangement . Once on the stand, witnesses usually have the opportunity, through the qualification process, to reply to questions for which they have ready answers. This will help them to gain the composure needed during the examination and the cross-examination that follow. Qualification is accomplished by asking a series of questions designed to give the jury a complete resume of the witness’s training and background, and thus establish his or her credibility. The questions generally include the witness’s name, residence, profession, location and length of practice, where licensed, degrees held, whether the witness has lectured, published, taught, or consulted, and, of increasing importance, whether the witness is board-certified. Board certification is important because, as ICPs know, the Certification in Infection Control (CIC) examination given by the Certification Board of Infection Control (CBIC) is composed of questions submitted by practitioners nationwide. If the process of certification has been adequately described to the jury, testimony by the holder of a CIC is likely to carry greater weight than that of a colleague without such qualifications. When testifying, expert witnesses should remember to answer questions in lay terminology whenever possible, so that the jury will understand what is being discussed. The witness whose “shop talk“ loses the jury has gone a long way toward losing the case. Medical terms must be made as understandable as possible. A good expert witness knows what questions
Volume
15 Number
August
1987
4
will be asked before he or she takes the stand. This is relatively easy with the witness’s own attorney, and it is not difficult with questions from the opposing lawyer, if the witness has done his or her homework. That is, when the case was first received for review, a careful study of it should have revealed the strong points of the opposition’s case, as well as the weak points of the one for which the witness is testifying. It is a safe bet that opposing counsel will concentrate on both areas. A variety of cross-examination techniques are used to discredit testimony. For example, the attorney may ask the witness to criticize actions by the person or institution for which he or she is testifying that may not have been performed in the safest or most reliable way. The attorney may attempt to get the witness to agree that legitimate differences of opinion exist between qualified experts, and that the witness’s testimony is simply an opinion and nothing more. Happily for the expert, redirect examination gives him or her the opportunity, with the help of friendly counsel, to explain or further develop points that were raised during cross-examination. The expert who did not answer a question as well or as fully as he or she could on crossexamination gets a second chance on redirect examination.
The ICP as expert witness
181
Regardless of the techniques used by zealous advocates, the expert witness cannot become caught up in courtroom histrionics. Witnesses are there for one purpose only: to render an expert opinion based solely on the facts of the case. This opinion should be founded on an informed, objective belief that the defendant’s actions in the case were, or were not, responsible and appropriate, given the standard of care existing in the community at the time. The ICP who accepts the responsibility of serving as an expert witness should be prepared to give the best, most thorough consultation possible. Anything less can only reflect in a negative way on the expert witness, and on the party that he or she represents. On the positive side, however, being an expert witness can be one of the most fascinating, educational, and challenging experiences of an ICP’s professional life.
References 1. Curran claims. 2. Rules trates.
WJ. The lawyer’s role in medical malpractice N Engl J Med 1977;296:24-5. of Evidence for United States Courts and MagisFRE Rule 702. Testimony by Experts.
Although medical malpractice suits seem to be numerous, they are rarely frivolous. In fact, a national survey showed that lawyers rejected 88% of the suits that they were asked to handle.’ Attorneys, it would appear, are not inclined to waste time on cases without real merit. The main reasons that so many cases are rejected are the standards of proof that a plaintiff (the person or persons bringing suit) must meet. Plaintiffs in medical malpractice cases involving infections are obliged to prove the same elements as plaintiffs in other medical suits must prove. To construct a successful malpractice case, a plaintiff must: 1. Establish a standard of care 2. Prove a deviation from that standard 3. Show injury and damage 4. Prove causation of the injury as a result of the deviation from the standard Obviously, the presence of an infection is not always a sign of negligence. For a hospital to be held liable for damages, the plaintiff must prove that the infection resulted from negligence. When the acts of an employee or agency of the hospital are involved, the plaintiff, in addition to proving negligence, must also prove that the facility had sufficient control over the employee or agency to prevent the occurrence. Because of the complexity of medical malpractice cases, expert testimony is required, to define for the court the appropriate standards of care, to assess the quality of care given, and to testify as to how the defendant’s actions conformed with, or deviated from, the standards. The Federal Rules of Evidence (702) define as expert “any person who possesses specialized knowledge, skill, experience, training or eduFrom the Department of Epidemiology, member of United Hospitals, Inc.
Rolling
Hill Hospital,
Reprint requests: Georgia P. Dash, R.N., M.S., CIC, Department of Epidemiology, Rolling Hill Hospital, 60 E. Township Line Rd., Elkins Park, PA 19117.
178
cases, we tend cation.“2 In medical malpractice to think of the physician as provider of expert medical testimony. A review of the literature will show that most of it addresses the physician’s role as expert witness. In cases involving alleged hospital-acquired infection, however, is the physician the expert who can best speak to the issues involved? The infection control practitioner (ICP), after all, is the health care professional who: 1. Gathers the necessary demographic and epidemiologic data 2. Analyzes and interprets the data 3. Calculates the incidence rate for nosocomial infections and alerts the appropriate staff members 4. Knows the organisms most commonly occurring in the institution and recognizes the unusual or multiply resistant organism 5. Institutes patient isolation when needed 6. Reviews Centers for Disease Control (CDC) recommendations and pertinent literature and is responsible for developing policies and procedures 7. Is responsible for educating all levels of personnel regarding infection prevention and control measures When there is a question of nosocomial infection, the certified ICP, by virtue of specialized knowledge, experience, training, and education, is by the court’s own definition an expert. Why, then, would an ICP want to serve as an expert witness? There are any number of reasons: curiosity about what goes on in a trial, a personal interest in the outcome of a case, or perhaps a desire to defend a colleague or correct a wrong. Whatever the reason, it is important that the practitioner protect his or her professional integrity. No ICP should agree to serve until convinced that the case has substantial merit. Once
Volume
15 Number
August
1987
4
persuaded, the true professional will testify whether asked to defend the accused or to support the plaintiff. What is expected of an expert witness in a malpractice case? Obviously, most 1CP.sare not qualified to testify about points of law, and the court is not interested in their opinion of the amount of damages sought by the plaintiff. If any issue becomes a problem, the practitioner should be ready to exercise his or her right to withdraw from a case, without prejudice. In deciding whether to serve, ICPs should review the case given not only the facts, but the state of the art at the time. For example, in a 1977 case that I recall, a patient claimed to have contracted hepatitis B as the result of outpatient surgery performed at a hospital dental clinic. None of the patient’s family had a history of hepatitis; the patient was heterosexual but claimed not to be sexually active, had no history of transfusions, and had no history of drug abuse. As it turned out, a resident who assisted in the surgery was hepatitis B surface-antigen positive. When the case was reviewed in 1980, I had to look back to 1977 and appraise the case by asking, “What was the standard of care in the community at the time? What hospital policies were in place; what written recommendations were available from CDC and the local health department? On the basis of these criteria, did the institution and the ICP provide responsible care consonant with that standard?” A common question asked by colleagues is, “Is it necessary for an ICP to get clearance from hospital administration before serving as an expert witness?” The answer to this lies in the ICP’s relationship with his or her institution and its policies. If no conflict of interest is apparent, and the serving is on the witness’s own time, there seems to be no reason to get such clearance. Another common question is, “How does an ICP who is interested in serving as an expert witness establish a relationship with a law firm? What are the practical and professional considerations?” Generally, an attorney learns about an ICP’s expertise from other individuals in the medical community, or from a professional organiza-
The ICP as expert witness
179
tion to which the ICP belongs. The lawyer then contacts the practitioner, indicating an interest in having that ICP serve as an expert witness. The responsible attorney clearly states whether he or she represents the defendant or plaintiff, and how he or she was referred to the prospective expert. Practitioners should be aware that their initial contact could come from a so-called middleman for a law office. Such people recruit professionals willing to testify in a manner favorable to a particular attorney’s client, under a contractual agreement. Such arrangements have drawbacks. The ICP has no knowledge of the ethics of the law firm or the legitimacy of the complaint, whether he or she will testify for the plaintiff or the defendant, the nature or completeness of the material to be made available, how seriously the practitioner’s views will be taken, or how those views may be manipulated. Under such arrangements, prospective expert witnesses lose the freedom to examine the issues objectively and to form an independent opinion. Because such an agreement could damage, or even destroy, a professional reputation, it is better for a colleague who has worked with the law firm to supply the practitioner’s name. Judgment as to whether to accept the case should be deferred until the attorney has outlined the case and asked the prospect to review the pertinent material and arrive at a preliminary opinion. Such material usually includes medical records, depositions taken from the plaintiff, defendant, and various witnesses, and perhaps a record of the complaint. The practitioner who knows the attorney or the firm should have no trouble receiving payment for the initial work. Dealing with an unknown firm can subject the ICP to the possibility of never being rewarded for sometimes prodigious efforts. The attorney, after all, may simply be trying to decide whether the case has merit, and looking to the practitioner for technical information. To avoid such a “fishing expedition,” it is best for the practitioner and attorney to establish a bond of confidence in each other’s professionalism. The scope of the work to be done by the expert witness will be defined by the attorney, who
American
180
Dash
will agree on a specific contractual arrangement with the ICP. The practitioner who has agreed to review a case should state clearly that he or she will not agree to testify until after assessing the case’s merits. No opinion should be given until all of the data have been reviewed and digested. At that point, the attorney may want to discuss the case in detail, because a written opinion may be seen and used by opposing counsel. The lawyer, having heard the prospect’s views, might decide not to use the ICP as an expert witness, should those views not support the client’s case. If the attorney believes that the ICP may be helpful to the case, he or she will ask for a written opinion. Preparing this report is very important, inasmuch as it will be the basis for subsequent testimony in depositions, the trial, or both, and it may be examined by the opposite side. In addition, because many months may pass before the case is tried or settled, a complete record prepared now will avoid the need to review all of the material again later. The ideal report should contain the following information: (1) a listing of the material reviewed, (2) a summarization of the case from an infection control standpoint, (3) an assessment of each important issue, (4) response to the attorney’s questions, (5) pertinent references and copies of all papers cited, (6) a statement of willingness to testify, and (7) a curriculum vitae. All materials received from the attorney should be kept, as should a copy of the complete report, until after the final disposition of the case. After studying the report, the attorney will arrange a meeting to discuss the case. The lawyer will probably ask a series of questions about specific points, which will later be used to establish the arguments. The next step is the deposition, during which the expert witness is for the first time subjected to the rigors of cross-examination. It and the expert’s written report comprise the testimony to be given later in court. The witness who has carefully written a report, and thereby has formed a well-thought-out opinion, has little to fear from the process. At depositions, opposing attorneys often ask
INFEGION
Journai
oi
CONTROL.
what prior experience the expert has had in malpractice cases. This is designed to determine whether the witness is a “professional expert,” that is, a “hired gun” whose opinion can be both molded and bought. ICPs who have given expert testimony before keep a record of how often they have testified for the defendant or plaintiff. Before the trial begins, the expert witness should know basic legal procedures and protocol to feel reasonably comfortable on the witness stand. The attorney will help him or her understand the manner of questioning, the rules of evidence, the proper titles of people in the courtroom, and the room’s physical arrangement . Once on the stand, witnesses usually have the opportunity, through the qualification process, to reply to questions for which they have ready answers. This will help them to gain the composure needed during the examination and the cross-examination that follow. Qualification is accomplished by asking a series of questions designed to give the jury a complete resume of the witness’s training and background, and thus establish his or her credibility. The questions generally include the witness’s name, residence, profession, location and length of practice, where licensed, degrees held, whether the witness has lectured, published, taught, or consulted, and, of increasing importance, whether the witness is board-certified. Board certification is important because, as ICPs know, the Certification in Infection Control (CIC) examination given by the Certification Board of Infection Control (CBIC) is composed of questions submitted by practitioners nationwide. If the process of certification has been adequately described to the jury, testimony by the holder of a CIC is likely to carry greater weight than that of a colleague without such qualifications. When testifying, expert witnesses should remember to answer questions in lay terminology whenever possible, so that the jury will understand what is being discussed. The witness whose “shop talk“ loses the jury has gone a long way toward losing the case. Medical terms must be made as understandable as possible. A good expert witness knows what questions
Volume
15 Number
August
1987
4
will be asked before he or she takes the stand. This is relatively easy with the witness’s own attorney, and it is not difficult with questions from the opposing lawyer, if the witness has done his or her homework. That is, when the case was first received for review, a careful study of it should have revealed the strong points of the opposition’s case, as well as the weak points of the one for which the witness is testifying. It is a safe bet that opposing counsel will concentrate on both areas. A variety of cross-examination techniques are used to discredit testimony. For example, the attorney may ask the witness to criticize actions by the person or institution for which he or she is testifying that may not have been performed in the safest or most reliable way. The attorney may attempt to get the witness to agree that legitimate differences of opinion exist between qualified experts, and that the witness’s testimony is simply an opinion and nothing more. Happily for the expert, redirect examination gives him or her the opportunity, with the help of friendly counsel, to explain or further develop points that were raised during cross-examination. The expert who did not answer a question as well or as fully as he or she could on crossexamination gets a second chance on redirect examination.
The ICP as expert witness
181
Regardless of the techniques used by zealous advocates, the expert witness cannot become caught up in courtroom histrionics. Witnesses are there for one purpose only: to render an expert opinion based solely on the facts of the case. This opinion should be founded on an informed, objective belief that the defendant’s actions in the case were, or were not, responsible and appropriate, given the standard of care existing in the community at the time. The ICP who accepts the responsibility of serving as an expert witness should be prepared to give the best, most thorough consultation possible. Anything less can only reflect in a negative way on the expert witness, and on the party that he or she represents. On the positive side, however, being an expert witness can be one of the most fascinating, educational, and challenging experiences of an ICP’s professional life.
References 1. Curran claims. 2. Rules trates.
WJ. The lawyer’s role in medical malpractice N Engl J Med 1977;296:24-5. of Evidence for United States Courts and MagisFRE Rule 702. Testimony by Experts.