Ask a Lawyer: Providing an Expert Opinion

Question: 

As a practising nurse, I have been asked to provide an expert opinion in a negligence case against a hospital, a nurse and two physicians. I have never been an expert witness before. What do I need to know before I accept the retainer?

Answer: 

In professional negligence cases, such as a claim commenced against a nurse, a hospital or a physician, the duty owed by the health care professional is most often determined by the profession itself. In other words, a member of the profession is required to tell the judge or the jury what the professional should have done or not done in particular circumstances and whether the conduct fell below the standard of care of the profession. In health care malpractice litigation, expert witness testimony is almost always necessary. Expert witnesses may also testify in legal proceedings other than civil lawsuits, such as criminal trials, inquests and professional discipline hearings. When acting as an expert witness, it is important to remember that your paramount obligation is to the court or the tribunal, not the party who retained you.

What is an expert witness?

An expert witness is someone who, because of their education, experience or a combination of both, has knowledge that can inform decision-makers about nursing practice standards. The most common use of expert testimony in a nursing or medical negligence case is to establish what the reasonable standards are in the circumstances and whether the nursing care provided met those standards.

An expert should not offer opinion evidence on matters beyond their established expertise. For example, a nurse may be qualified as an expert in emergency nursing in an urban, acute-care teaching hospital, but may not be qualified to give an expert opinion on outpost emergency nursing.

No formal training is necessary to become an expert witness. Although many companies and individuals offer paid courses to certify nurses as “legal consultants,” the only qualification necessary to be a capable and competent expert is having the appropriate nursing education and clinical nursing experience in a particular field.

What will you be asked to do?

In some cases, experts are only retained to assist the lawyer in understanding the medical and nursing issues in the case. In other cases, the expert is also asked to prepare a written report or give oral evidence under oath in court, or both.

After being retained, you will generally be provided with materials such as the statement of claim, statements of defence, transcripts of examinations for discovery and a copy of the patient’s chart, although the extent and nature of the materials provided may vary from case to case. You may also be provided with standards of practice from the relevant time period, employer policies and any other relevant materials. The lawyer who has retained you will instruct you as to whether your opinion is to be provided verbally, in writing or both.

In all cases, experts have a duty to provide their opinion in an objective manner. Some provinces, including Ontario, require experts to provide a written confirmation that they understand that their duty is owed to the court rather than to any particular party. Failure to provide expert evidence in an objective manner may result in the judge rejecting your evidence or giving it reduced weight. It can also affect an expert’s professional reputation.

Although most civil matters settle prior to trial, a nurse acting as an expert witness may have to testify if there is a trial. Before starting your testimony, the judge will qualify you as an expert. Next, you will be questioned first by the lawyer who has retained your services (i.e. examination-in-chief) and then cross-examined by the opposing counsel. Following the cross-examination, the lawyer who retained you may ask you further questions on re-direct examination. As with any evidence, expert witness opinions may differ. The court will assess the totality of the evidence and reach a conclusion.

Am I the right expert?

Before accepting the retainer, ensure that you have the appropriate knowledge, education and experience to provide the opinion. For example, confirm that you are being asked to comment on the standard of care of a nurse who practices in an area in which you have sufficient experience. You should not be providing opinions outside your area of expertise or comment on the actions of other health care professionals involved in the case.

You should also ensure that you do not have a conflict of interest. A conflict of interest may occur if you have a personal relationship with any parties involved (other than simply being colleagues) or if you have provided care to the patient involved in the proceedings. If you believe you have a conflict of interest, you should discuss your concerns with the lawyer who retained you as soon as possible.

How are experts compensated?

As an expert, you are entitled to reasonable compensation for your services. Before agreeing to take on this role, you should request a written contract from the lawyer retaining you. The contract should outline any expectations and explicitly state your fees and what they cover, and reimbursement for expenses. You should also have a clear understanding of any time constraints and deadlines related to the litigation.

There is no obligation for you to act as an expert witness in any legal proceeding. If you do agree to act as an expert witness, proper preparation is essential. You also need to ensure that you have adequate professional liability protection for the duration of your involvement with the case.

If you are required to testify in court, keep the following in mind:

• Listen carefully and understand the question before you answer. If the question is unclear, ask for clarification or rephrasing.
• Take your time answering questions and, if you need to look at a document in order to respond, ask to see the document.
• If you are asked questions about matters outside your scope of practice and expertise, inform the court that this is outside your area of practice.
• Answer only the specific questions asked of you.
• Use everyday language to answer questions and avoid medical jargon. If technical language must be used, provide an explanation to ensure that your answers are understood.
• Answer the questions to the best of your ability. When you do not know the answer to a question, do not be afraid to answer “I do not know.” Do not guess.
• Outside the courtroom, avoid discussions with other witnesses.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

Published September 2015.

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.