One of the most common questions beginners ask me is, "Do I have to testify if I want to become a LNC?" The answer is, "No." You can choose to work strictly behind the scenes as a consulting expert. While you don't have to be a testifying expert yourself, I do encourage you to become involved in
locating and working with expert witnesses.
Most attorneys who hire a LNC for the first time want one of two services: (1) screening a case or (2) locating experts. Locating experts is very challenging for an attorney to do herself, so if you can respond to this need, you open the door to future business with that attorney. You'll have the
opportunity to educate her about the other 29 services you can offer. You also eliminate the risk that she will hire one of your competitors to provide this service.
I know one LNC who has created nothing short of an empire, transforming her practice into a multi-million-dollar company – simply by locating expert witnesses. Your goal might not be creating a LNC practice that generates millions of dollars. Even so, adding this service will surely create a nice profit center for you.
In this issue and the next, successful LNCs discuss their Best Practices for locating experts and serving as a liaison between the expert and the attorney-client. These women are all pros. Each has her own unique way of providing this service, yet all have some practices in common. Pay particular attention to the strategies that work for all of them.
The overwhelming message from these LNC experts is this: The need for this service is out there. All you have to do to profit from that need is adopt these Best Practices in your own LNC business!
BEST PRACTICES FOR LOCATING EXPERT WITNESSES
Creating the Triple X Experience
by Pamela A. Hollsten, RN, BSN, CLNC
"Part of success is preparation on purpose." — Author unknown.
Locating expert witnesses is a service I can both love and hate. I feel a sense of pride and accomplishment when I match the right expert to the attorney's case and when the attorney later tells me he had an excellent experience with the expert. Or I can feel a tremendous sense of defeat, rejection, and failure when, even though I did the best I could, the attorney's experience does not go so well.
Conducting the Search
Locating expert witnesses can certainly be challenging. Yet the right expert can make or break a case. To keep from feeling like you're looking for the proverbial needle in a haystack, remember, you're not alone in your quest for the perfect expert. Try my strategies for achieving the "Triple X" — the Excellent Expert Experience for yourself, for your attorney-clients and for the experts you locate.
What does the attorney want?
From your initial contact with an attorney or firm in need of an expert or experts, you must understand what the attorney-client wants. This includes learning whether there are any budget constraints or geographical considerations in qualifying potential experts.
For example, many states have no practice, clinical, licensure or teaching requirements for experts. Other states have specific practice or licensure guidelines that experts must meet before they can testify to a medical malpractice action. Virginia, Tennessee, Colorado, Delaware, Illinois, Kansas, Maryland, and North Carolina are but a few of the states that have unique language in the expert testimony section of the medical malpractice statute. Visit http://www.mcandl.com/states.html to see a brief synopsis of these rules, but don't let this online information substitute for clarifying this issue with the attorney-client.
If your deadline is short, it's especially important to clarify the attorney's specifications for the expert up front in order to avoid having to start your search all over at the last minute.
What does the case require?
The attorney will usually specify what the case is about and what kind of expert is needed. She may already have had the case reviewed by another LNC or physician expert who recommended further review by an expert in a different specialty or profession. Whether the case has already been reviewed or not, I prefer to review the records myself. I explain to the attorney that this is necessary to determine the exact expert requirements and to provide enough information to catch the potential expert's interest.
Reviewing the records also lets you identify other potential defendants and experts; often nurses are overlooked. The attorney may not be aware of the complete clinical course involved in the case, and thus may have overlooked a more appropriate specialty or specialties to tap for experts. The attorney may also be unaware of any controversial treatment issues, unclear medical treatment options, or the standing of a particular health care provider in the medical community.
By doing your own review, you will be able to advise about potential obstacles in locating an expert. You will be better prepared to "sell" a case to a potential expert if you can speak knowledgeably about the course of treatment. Finally, doing your own review gives you an opening to provide additional services to the attorney after you've located the expert.
Who are the experts in this area?
Even if you don't know any experts personally, you can gradually build an extensive expert database as you build your business. Early in my practice when I did not have a large database of experts, I began an informal list of physician and nurse authors or contributors to the medical research on topics I happened to review for my cases. Reviewing the literature helped me identify the authors cited most frequently in other published works. I highlighted those who were close to my business and those affiliated with universities or medical schools. As my case load expanded, so did my pool of potential experts.
Such a database can help you motivate experts to participate in your cases. For some reason, even the most distant or difficult physician seems to soften a bit when you can discuss a particular study, chapter or article he contributed to.
As an added bonus, your database can help you identify the latest treatment issues and controversies in the medical literature in the event any particular physician or nurse appears on the opposing side. Keeping your expert database up to date is what I call "preparation on purpose." It's a habit that will save you a lot of time and make you more efficient in serving your clients.
Who do I know who may know a potential expert?
Never underestimate the power of networking, particularly for finding expert witnesses. While some LNCs aren't eager to share experts for a variety of reasons, forming strong alliances with other LNCs who will share their experts can truly add synergy to your practice.
At every conference or professional organization seminar I attend, I note those nurses or other health professionals and speakers who are potential contacts, either as experts or as resources for locating experts in a specific field. For example, LNCs who are in active clinical practice or education are exposed to a wide variety of potential experts. Since I am not clinically active at the moment, conferences and seminars fill that void for me.
You can also obtain potential experts from attorneys you work with. Although some attorneys guard their best experts, my clients have been generous in sharing with me, and I reciprocate without hesitation if I am asked. When I help others in their time of need, I find that I'm rewarded many times over in my own times of need.
What other resources do I have for finding experts?
I have had success in contacting the heads of departments in large universities, nursing and medical schools. Nearly every hospital in the United States has a website. You can even find home pages for many physician group practices and individual physicians on the Internet. Universities conducting research in specific areas may post the qualifications and career highlights for faculty members, physicians and nurses.
Several websites publish lists of experts, and several legal reporters, journals and newspapers list the experts on various cases. Try contacting state boards and professional organizations to ask if any providers have indicated an interest in legal review activities. I scrutinize potential experts from these sources closely for quality and case-specific needs, but the wealth of information and potential contacts on the Internet never ceases to amaze me. I no longer have to clutter my office with telephone directories from multiple cities.
In retrospect, my expert searches are more proactive than reactive. I clip newspapers, regularly read, highlight and tag journals for future reference, jot down names when discussing cases with attorneys and other LNCs, and contribute or reciprocate accordingly. Searching for experts is a process that really never ends.
Serving as a Liaison
You may be surprised to learn that attorneys can be intimidated by experts. They realize they cannot control an expert's opinion. They may not be comfortable in talking "medicine" with the expert and are therefore in a vulnerable position when that moment of truth arrives and the expert provides her opinion on a case.
When I meet with a new potential attorney-client, I make a point of describing how I can serve as a liaison with his experts. For example, I tell the attorney how the terminology used in medicine and the law can confuse potential experts. On more than one occasion, I have seen a strong expert who felt
passionately about a case become a little fuzzy when legal terminology about "medical certainty or probability" was introduced.
The most valuable asset you can bring to this service is excellent communication skills, particularly listening. The most important step is to clarify your role and seek approval from the attorney for your level of involvement with the expert. Some attorneys may not use your services as expert liaison, but for those who do want your help in communicating with their experts, here are my strategies for continuing the "Triple X" experience.
Is the expert really willing to provide deposition and trial testimony?
Surprisingly, some attorneys have an expert review a case without clarifying that they also expect the expert to testify. In some situations, the attorney does this intentionally, but often, I receive a last-minute request to find an expert who is willing to testify, since the reviewing expert declined. Even if the expert opines favorably about the case, she might not be willing or available to provide testimony. Some experts hope cases settle before they are deposed.
When you initially speak to a potential expert, clarify all this with her. If an expert indicates she only reviews cases and the attorney specifies that testimony is required, I usually close the conversation at that point.
By asking the hard questions early on, the attorney can avoid last-minute surprises about the expert's unwillingness to testify later. Some attorneys I regularly work with felt uncomfortable asking potential experts explicitly about their willingness to testify, but all my clients have commented that getting a verbal commitment from the expert up front reduced their anxiety.
Does the expert know the case facts?
One advantage of working on a case in the early stages is that by the time you and the attorney talk to a potential expert, you know the case facts well, and you have researched the issues, potential weaknesses and applicable standards of care. As a silent participant in the attorney's communication with an expert, you can let the attorney know if the expert has really reviewed the entire case and considered all the issues, or if she has simply read the operative report or physician's discharge summary before coming to a conclusion.
Early on you will also get an impression whether the expert is truly current in her practice and specialty, and whether she has any biases or personal opinions not in line with current medical or nursing practice and literature. I discuss this potential problem with the attorney in advance and suggest specific questions the attorney can ask the expert to determine her level of expertise. A savvy attorney can do this effectively in a nonthreatening and nonconfrontational manner. Once again, the attorney may be slightly uneasy with this approach, but feeling comfortable and confident about the expert will allow the attorney to focus on other details of the case.
Are there any real or perceived communication difficulties?
As an observer focused on listening instead of speaking, the LNC can provide invaluable insights that improve the flow of communication. You can easily pick up on issues your attorney-client may not be aware of. In essence, you are a third eye (and ear) for the attorney.
For example, I participated in a telephone conference between an attorney and an expert, both well-respected, intelligent professionals. Yet the attorney did not appreciate the unique medical issues the expert was trying to explain, and the expert did not understand the legal terms the attorney was using. I noticed that both had large egos, enjoyed hearing their own voices, and were trying to outdo each other, instead of listening to each other's concerns and addressing the critical issues at hand. I interjected, much as a counselor or team facilitator might, explaining each participant's position in layman's language. As simple as that sounds, within minutes the conversation was back on track. They actually began to agree more than disagree, and most importantly, neither became alienated by the other's personal communication style.
During your interaction with an expert you should also focus on your own reaction. How well do you understand the expert's thoughts? How well is she able to articulate her opinions with or without additional coaxing from the attorney?
These observations serve several purposes, most importantly, to enable you to provide feedback at the attorney's request. For example, one attorney I work with always asks if I would enjoy working with this expert in a clinical setting, or if I would consult this physician for my own health care needs. He calls it his "reality check."
The expert may be well-qualified and credentialed, but may have difficulty communicating with potential jurors. Some experts excel at presenting complex medical issues simply, while others struggle to verbalize their opinions. While the attorney is focusing on the expert's opinion and the legal issues during the conference, he may not be aware of subtle communication difficulties.
In addition, some points in the expert's opinion may not match the pattern of facts in the case or may seem to go against the prevailing literature or standards of care. As a LNC you can objectively communicate these differences to the attorney. Your feedback and impressions of the expert are important observations that can help the attorney immensely.
Are there any billing or availability conflicts?
Once I find the expert, I prefer to stay out of the picture unless the attorney chooses to keep me involved on the sidelines. However, I let any potential expert know she may contact me at any time if she has difficulty with the attorney or the firm. I also advise the attorney to contact me if he has difficulty tracking down an expert once an opinion is provided.
I feel maintaining positive relations between the medical and legal professions is my professional responsibility as well as a critical service I can provide. More than one attorney has commented that LNCs have a knack for getting through to busy health care providers more successfully than he or his staff have. Experts tell me the same thing about LNCs' ability to get through to attorneys.
Conflicts with an expert about fair compensation or unrealistic expectations about time and travel commitments often guide my future decisions about working with a particular law firm. Likewise, if an expert repeatedly fails to return calls, provide her opinion in a timely manner or follow through on other commitments, I note such difficulties for future reference.
As LNCs, we are in a unique position to participate in both the health care and legal worlds and to facilitate interaction between the two. Our communication skills developed from dealing with our patients, colleagues and a wide variety of other people, combined with our inside knowledge of health care systems and our connections to experts in the field, are invaluable. LNCs who excel at locating and working with experts are a critical link between the two professions. Your ability to create an environment conducive to the "Triple X" experience – the Excellent Expert Experience — can contribute to both the attorneys and the experts you serve and can expand your potential for success.
Pam Hollsten, RN, BSN, CLNC, an independent LNC in Georgia owns Hollsten & Associates, specializing in medical malpractice.
