Our Expert Witness Forum West Legal Conference Producer, Mark Montpetit, sat down with
Kathy Sinclair RN BScN LNC, Principal Sinclair LNC, to chat about her conference presentation on
Examining Common Challenges Healthcare Expert Witnesses Encounter When Providing Written and Oral Testimony.
A Conversation with Kathy Sinclair
Kathy Sinclair, RN, BScN, LNC
Principal
SINCLAIR LNC
Mark Montpetit, CI Conference Producer: What is your background in working as an Expert Witness and what are you planning to speak about at the Forum?
Kathy Sinclair: Over my 29 years as an Emergency/OR nurse I have testified in the criminal court system for both the plaintiff and defense. Most of these cases involved a patient under my care who injured or killed a person as a result of their behavior.
As a Legal Nurse Consultant for 16 years, I have worked with many amazing malpractice lawyers from Canada, USA, Washington and Hawaii. I have had the opportunity to qualify as an Expert Witness in Emergency Nursing with respect to Standards of Care in the BC Supreme Court.
I am planning to speak on the ethical challenges of being a medical expert witness as well as exploring some practical tips and pitfalls to avoid when testifying as well as outlining why medical expert witnesses are apprehensive about cross-examination. I will also share some personal experiences as an expert witness.
Montpetit: Why is this an important issue now? Is it a matter of increased litigation in this area or are there other factors?
Sinclair: Medical litigation in Canada is growing. According to the Canadian Institute of Health Information (CIHI) harm was experienced by patients in 1 of every 18 hospital stays, or 138,000 hospitalizations in Canada between 2014-2015. Historically and even present day, adverse events are hidden behind closed doors at hospitals and clinics for fear of litigation and this is not the culture Canadians should tolerate. Adverse events should be firstly prevented and if unable, then dealt with immediately with total transparency. Hospitals have become businesses with budgets cut for staffing and equipment, OR time, hospital beds and the people who suffer are the patients. Medical and medical equipment errors can only increase with less frequent monitoring and care. Registered nurses are being replaced with less expensive, less trained practical nurses when possible.
Montpetit: Why do you think some medical professionals find the trial experience so challenging? Do you think this is something specific to this industry only?
Sinclair: How do you think a lawyer or judge would feel in the operating room or in a busy emergency room? Like a “fish out of water.” When a medical expert takes the witness stand, they are on trial too for their credibility, professionalism, knowledge, competence, judgement, adherence to policies and procedures and the respect for the rights of others. There is a fear of being discredited during the adversarial process of cross-examination which could lead to professional misconduct or fallout.
In the healthcare field, there is a reluctance to testify against one another, especially in malpractice litigation. Physicians and nurses feel disloyal to testify against “one’s own” just as one might expect with the blue wall of silence with the police force.
Montpetit: What role can a Legal Nurse Consultant play in assisting lawyers with their cases from referral to testifying in court?
Sinclair: A Legal Nurse Consultant can provide invaluable input in just about every type of medical event or issue. LNCs possess the clinical experience and knowledge necessary to assist lawyers in understanding deviations in the standard of care, evaluate damages and interpret pertinent medical information from a wide variety of sources.
LNCs not only provide medical record reviews and analyses, but also conduct medical research specific to case issues, identify and apply standard of care and regulatory requirements, educate lawyers about unique medical issues of the case and retain medical experts in a variety of specialized fields. LNCs begin to evaluate cases from the start of the litigation process, and are able to efficiently and effectively defend assist clients and keep litigation costs to a minimum.
Montpetit: Any surprises you plan to talk about at your session- or will we have to wait for the conference?
Sinclair: I hate surprises! But I will have some good take away “helpful hints” when you are sitting in the “hot seat.” I also like audience participation, so we can see where we go with the session…
Join Kathy and others at this year’s event –
register today!