By Frances W. Sills, RN, MSN, ARNP
The “Daubert standard” is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses’ testimony during legal proceedings. The citation is Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
A Daubert motion is a motion raised before or during trial to exclude the presentation of unqualified evidence to the jury. This is a special case of motion in limine, usually used to exclude the testimony of an expert witness who has no such expertise or who used questionable methods to obtain the information.
In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges now must evaluate proffered expert witnesses to determine whether their testimony is both “relevant” and “reliable” — a two-pronged test of admissibility.
The relevancy prong: The relevancy of testimony refers to whether or not the expert’s evidence “fits” the facts of the case. For example, you may invite an expert to explain to the jury the staging of pressures ulcers. However, the expert would not be allowed to testify if the fact that pressure ulcers are staged was not relevant to the case on trial.
The reliability prong: The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must have derived his or her conclusions from the scientific method. The court offered “general observations” of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exact checklist. Evidence must be:
• Empirically tested — the theory or technique must be falsifiable, refutable and testable.
• Subjected to peer review and publication.
• Subject to a known or potential error rate and the existence and eminence of standards concerning its operation.
• Generally accepted by a relevant scientific community.
The importance of knowing about the Daubert standard and how it would apply to nursing can not be overemphasized. Today’s healthcare delivery system is complex and confusing to the ordinary layperson. Most jurisdictions require the use of an expert witness during the litigation process to educate the triers of fact (judge and jury) about specialized knowledge.
Nursing in the 21st century is a far cry from the past in which nurses were seen as healing angels, or as Nightingale holding her lamp in the middle of the large patient wards of the past. Nurses today are multidisciplinary professionals who are educated in the principles of the science of nursing, legal parameters, the definition of person, environment, health, technical skills and all other esoteric components of nursing practice. It is this specialized knowledge regarding the complexities of nursing practice and standards that must be translated into a language that will be easily understood by all jury members, arbitrators and judges.
Rule 702 of the Federal Rules of Evidence states that if specialized knowledge will assist the trier of fact to comprehend the evidence on facts at issue in a case, then an individual who is qualified as an expert by knowledge, skill, experience, training and education may provide testimony in the form of an opinion. Nursing experts must be able to withstand a Daubert challenge. The minimal qualifications for a nurse expert would include a current professional license and clinical expertise in the area of the case’s issue. In today’s complex healthcare environment, the greater the educational preparation of the expert, the greater his or her perceived credibility. The nurse with a BSN degree will have more credibility than the nurse with an associate of science in nursing degree.
A master’s degree in nursing, particularly with preparation as an advanced practice nurse will have even greater impact. A doctorate confers a special significance of advanced preparation, whether it is in nursing, education or a related discipline. Certifications that demonstrate a certain level of competency in a specific specialty or specialties are also great assets.
The expert witness with publications, presentations and membership in professional organizations has additional credibility, particularly when the published subject matter relates to the particular case that the expert has been retained to review.
In addition to qualifications, a nurse expert should be confident in the following areas:
• Elements of liability.
• Understanding the litigation process.
• Standards of care.
• Community standards.
Elements of liability, or negligence:
• Duty: There must be a duty to provide care.
• Breach: There must be an act or failure to act that falls below applicable standards of care.
• Causation: The breach of the standard of care must have caused or contributed to the damages.
• Damages: There must be damages.
Understanding the litigation process
The nurse must understand that the litigation process proceeds in a standardized format. The written work done by the nurse expert is potentially discoverable, so all impressions regarding the case should be communicated verbally to the attorney before a written report is submitted.
A nurse expert may be called to give a deposition if the case is proceeding toward arbitration or trial. Once the deposition has been transcribed, the nurse expert should request a copy of it to review, keep, check spelling errors and sign so that she or he becomes familiar with what was asked and how questions were answered.
Standards of care
Standards of care can be national, local, community-based or specific to an agency or specialty. National standards are found in nursing textbooks, laws and regulations, journal articles and pharmacology books. The American Nurses Association as well as many nursing specialty organizations have published standards of care. The standards that have been established by the U.S. Department of Health and Human Services in the Agency for Healthcare Research and Quality are excellent sources. The Joint Commission on Accreditation of Healthcare Organizations (Joint Commission) has established standards in the Accreditation Manual for Hospitals that are used to evaluate and monitor the clinical and organizational performance of healthcare facilities.
While the concept of “community standards” is somewhat controversial, it is important to note that in nursing it is believed that the standards are the same nationwide. The reasoning behind this is that the curriculum used in the education of nurses is the same regardless of the educational facility — nurses use the same textbooks and journals, and attend the same educational conferences, depending on their specialties. In determining the “community standard” it is important that the expert not expect a nurse working in the rural setting to recognize and intervene in the same way as a nurse working in an intensive care unit in a tertiary center. The “community standard” as it relates to nursing practice must relate to the practice of a reasonably prudent nurse with similar education and experience.
Before 1980, physicians served as the expert witnesses at trials involving nursing standards of care. Two landmark court cases, Avert v. McCormick and Malone v. Wake Hospital Systems set the stage for courts’ acceptance of nurse experts to define these standards for nursing.
As the role of nurses expands, coupled with numerous specialties, the need for nurse experts grows.
If a nurse is entertaining the idea of becoming an expert witness, it is important that he or she understand the qualifications needed. Serving as a expert requires not just knowledge, education and experience, but as Patricia Benner states in From Novice to Expert (Pages 20-34), “she or he no longer requires rules, guidelines or maxims to connect an understanding of the situation to appropriate action.”
The effectiveness of the nurse expert is directly related to the degree of integration and synthesis of nursing knowledge and skill, plus a sprinkling of that intangible nursing essence and ongoing disciplined inquiry of always asking “what, how and why.” •
Frances W. (Billie) Sills, RN, MSN, ARNP, is an assistant professor at ETSU College of Nursing in Tennessee;firstname.lastname@example.org.
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