Modified 1/09/07 7:06pm
A few days ago, I took an informal poll from among the various professional list servs to which I belong.
I asked for their personal feelings as to how much clinical time and experience (in their prosective fields) should be obtained before a person should be able to testify as an expert.
I specifically asked if they would consider someone who is but a few months out of school to be experienced enough.
Among the professionals who responded are nurses, criminal investigators, forensic scientists, private detectives, insurance investigators, fraud investigators, an arson investigator, and attorneys.
Since that first post, I have received more responses:
From Joyce, a Legal Nurse Consultant:
"We try to match our TE's to the case. Examples - BSN:BSN, MD:MD OBGYN:OBGYN ADN:ADN and years of experience is the same. Then we look at the level of the area they are working and match up Level III nursery nurse with a Level III nursery nurse, with the same degree and years of experience. And is [sic] is going to depend on what the issue is or what scope of practice was not followed. The text book may say one thing but in reality treatment can not be text book every time."
From Kelly, a Latent Fingerprint expert:
"A related aspect to the expert question is a problem that "experts" from the greatest majority of LE agencies encounter. The question "Do you perform the duties of **** 100 percent of the time" arises, sometimes in court and sometimes in questionnaires for training.
The question infers that if a person is not 100 % dedicated a singular task he could not be considered an expert. Consider that the overwhelming majority of agencies are small to medium. In these departments it is necessary that employees mult-task. Our rural locations makes using larger department's impossible. Besides they have more than enough work to do and we should be able to do our own cases.
I may be in charge CID, take my turn working crime scenes, testify as a latent examiner,and make coffee. No, I do not function 100% of the time as a latent examiner, but I do 100% of the latent examinations. Does the fact that I make coffee make me less of an examiner? So in your research I feel that the question on the "expert" question should be one of training and education, not if the department is from a large city or not. Time to make more coffee. "
From John, Private Investiagtor:
"From my point view, the question may answer it self. There are many Private Investigators that might think of themselves as experts in their chosen profession but the product may not say that. At least we are all smart enough to ask questions to help get us to expert level."
From Paul, Forensic Consultant:
"Ultimately, it is the role of the judge to determine if an individual meets the standard the judge sets for that courtroom. It also will vary by the field...a brand new PhD who just determined a new way to approach a problem. who has here to fore never been in a courtroom nor conducted a forensic examination may be qualified as an expert; a general practitioner may wait many years to build the bona fides for another court to grant expert status.
I had four years experience when I first testified as a latent print examiner; it was my first latent case to go to trial, and I was qualified handily. Another court, another resume, may have been a very different story."
Mark, Forensic Scientist: "This is indeed the 100,000 dollar question (or should I say "million dollar" question)... To me expertise relies on knowledge, skills and abilities. The forensic sciences seem to take the approach that there is a magic number...two years. This is regardless of whether you are a DNA analyst or a fingerprint technician. Obviously this approach isan oversimplification but it is, at the very least, a standard.
I think it may also be illustrative to give a "qualitative" range for expertise. For instance, expertise should be more substantive than a few seminar courses but should be less than 30 years.
The problem with putting a "time" metric on training and
experience is that different people will have different training and
different case experiences during training. There is also a quality
component to
training...this can vary as well.
No doubt that you
followed the message thread regarding "science v.s technician" on
the Forensic-science list serv on yahoo recently.
Unfortunately the whole
topic got off track and became an attack on my credentials which I found both
amusing and libelous at the same time because numerous unsubstantiated
inferrences were made. However I think the discussion makes a great point
for the differences (and misunderstandings) of the "specialist expert" vs.
the "generalist expert".
I think a valid legal bright line exists by using the layman as a standard. If a person has knowledge, skills and experience that is greater than that of the average layman of average intelligence and means, then I think that constitutes expertise. However this knowedge and experience base must be useful for the trier of fact. Having said that, the usefulness mustbe on the side of truth seeking, not winning a case.
In some ways I see the judge as rightfully having
the duty to determine who is an expert. There is a moral and ethical duty
for experts to know the limits and bounds of where there expertise begins and
ends. I think this aspect has room for improvement with
many
experts.
That's my 2 cents worth ... I personally think that some areas of forensic science require more time to learn than other areas. Fingerprint identification is not rocket science, however DNA analysis approaches a type of rocket science level of understanding."
Chris, adoption expert: " I think better than 10 years experience.
Willie, Legal Investigator: "No, 6 months would not qualify as an expert in any field."
Richard, Legal Investigator: "The answer to your question is very simple the longer the history of the person the better the expert witness will be. An example very simple to explain is your character witness must have a strong history of knowledge to be considered an expert."
Ed, Pathologist: "In pathology I qualified with no experience beyond training. I have qualified ever since, now up to 44 years later. No one has any value without ability to qualify. One would not be employable and be able to accumulate experience without beginning"
To the question posted, regarding if only a few months experience was enough to qualify a person, Lee, a criminal investigator, answered, " Absolutely NOT! "
Kathy, Legal Nurse Consultant: "My gut feeling is about 10 years of experience for most standard of care nursing experts and physician experts. Having said that, I do know of an ICU nurse who is an excellent expert with 8 years of adult ICU experience. However, she has been in that specialty for the entire time and speaks as to the standard of care in regards to cases only in that area."
Susanna, Consultant Expert: "I have referred testifying experts for many years and, regardless of statutes, I think this is what the market bears:
Lori, Medical legal Consultant: "I think ideally, 5 years plus is needed to be an expert in any given field. I do think some will be considered experts after three years, depending on prior experience. For new grads, I can't go less than 5 years."
Dan, Office Manager of a Legal Nurse Consulting firm: " am not a medical professional, but you did not specify that I needed to be. I have twenty-five years in the service industry and eleven in business management.
In my opinion an expert should be out of the training phase of their career ie; apprentice, journeyman, internships etc.. and have at least ten years of on the job training. Because the term "expert" implies a high proficiency at a particular endeavor as well as just being qualified to perform the work.
I think you need to have "seen it all" or at least most of it, a couple of times. I also think there should be...especially in the medical profession, exceptions that require more time than that as some fields of endeavor are extremely technical and diverse as far as the different situations that occur. It may also be worthwhile to note that some fields, like nursing are significantly compartmentalized and should require a certain amount of expertise in that particular area, I don't know that it would require ten years though, maybe four?"
Ruth, RN: "I have been a testifying expert for almost 18 yrs. I have been an RN fo 38 years.I have no advanced degree but what I do have is experience and conviction in what I testify to."
Beth, Legal Nurse Consultant: " We use the basic rule of at least three consecutive years of practice in the field (with ongoing current clinical practice in the field - nursing experts), MD's too must be current and clinically active - I always feel the more the better - I think it would take at least that long to hold yourself out as an expert, and I always look for ongoing CEU?ME's/ lecturing/presentation/publication experience in that field, but that being said - I think active clinical practice is always the most important aspect."
Bill, Private Investigator: " Kathy you have an awesome Blog (Thank You, Bill !)
Sue, Defense Investigator: "Since I am a member of some of the forensic groups and I've already read this inquiry, I understand what you are looking for. However, with this group it is usually quite different.
As the private investigator working for the defendant, we are the ones who interviewed the witnesses, took the pictures, measured the distances, transported exhibits from Point A to Point B, etc.
Usually when we testify it is to lay a foundation for the admission of the pictures, the diagrams, the measurements, etc. as well as the occasional need to impeach a witness. It doesn't matter whether it is our very first case or not.
Here in CA, for instance, I am licensed by the State who says I am
experienced enough and possess the necessary requisites to become licensed. No county prosecutor can undermine the authority of the State very successfully. Unless the investigator witness comes off sounding like a babbling idiot, the prosecutor demeans the strength of his own case if he attacks too aggressively."
Joe, RN, Forensic - Psychiatric Nurse: " Six months of training and doing the job is probably sufficent. "
Nancy, RN, Forensic- Psychiatric Nurse, immediately responded back to Joe: "No it's not. It does not make you an expert. I am sorry I beg to differ."
I beg to differ with Joe too. A few months nursing experience does not make one an expert at all. How can it? We were all "babies" at that point!
Just to clarify my position, I'm not saying that a nurse has to have five years, or whatever amount, experience as a SANE nurse in order to qualify as an expert.
What I'm saying is that, in my opinion, any nurse who should decide to take the SANE / FNE training course and go into forensic nursing, should first have several years [preferably at least ten] experience in the ED, Trauma, or Maternal-Child Health fields before venturing forth into this highly specialized area of nursing.
Most certainly, I do not feel that any SANE nurse still in training should be doing an exam without supervision by another experienced SANE nurse. Even after finishing our training, we still don't know everything.
After months of clinical experience, I was still going into the office, asking my superior, to come double check me, to make sure that my impression of what I was seeing was correct. A prime example, was when I first found extreme redness and abrasions on a patient, months after I had started working. This was the first time I had seen this and needed to be sure that these types of symptoms were indicative of sexual assault. Turned out, I was glad she was right next door.
She took one look and let me know that, no, those symptoms are often caused by vaginal infections, rather than sexual assault. Since vaginal infections can be present for a long time before the woman is aware, they can do more damage to the tissues.
What you will see then is extreme redness and swelling, all the way around - sometimes to be the point of the tissue being almost excoriated - many abrasions, and a deep, cherry red looking cervix. There will also usually be excessive vaginal drainage. If she had not double checked me, I might have come to the wrong conclusion. These are the types of things you can only learn through time and experience.
One other thing I'd like to note, is that nurses cannot determine causation. Only a physician can do that. We can give our opinion as to whether the injuries are "consistent with" sexual assault but we can't determine what caused the injuries.
That point was stressed during the Kobe Bryant case when Dr. Michael Baden, was released by the prosecution for providing evidence that undermined the accuser's allegations.
As Dr. Baden stated, " Usually, a physician can't tell consensual from non-consensual. They can tell whether there's been intercourse or not intercourse, but not whether it's consensual because one can have bruises and certain injuries from consensual sex and one can have no injuries from non-consensual sex."
Well, common sense causes me to ask: If one can't determine causation with regards to actual outer visual injuries like redness, tears, and abrasions, how could one determine what actually caused "diffuse edema of the inner vaginal walls"?
Kathleen keep it up. Your doing a great job.
www.hi-caliber.org
Posted by: HI-CALIBER Investigations ® | January 09, 2007 at 06:27 PM
Thank you! :-)
Posted by: Kathleen | January 09, 2007 at 07:18 PM
Kathleen,
I respect your efforts to shed light on and apply reason to the Duke lacrosse case; however, I am disappointed by what I perceive as a lapse in judgment in several of your recent blog posts. In this pair of posts about the SANE nurse, you’ve crossed the line from analyst to gossip-monger.
The accuser may be full of it and case may go nowhere; but where do you get off dragging someone through the mud who by all accounts was just doing her job? You took a small amount of information and made some huge leaps in your assumptions. From the details of protocol at a hospital where you don’t work, to what the law says in a state where you don’t practice, to the extent and suitability of the nurse’s education and experience, you’ve made a bunch of guesses with very little backing them up. You said, "I'm hoping the information, or my interpretation, is incorrect." But from that point on you treated your interpretation as a certainty. That’s pretty irresponsible.
Finally, have you read what KC Johnson wrote in response? He uses your post as an excuse to make a completely unfounded attack on the nurse, accusing her of ideological bias. The statements he has published in a public forum are a profound disservice to women’s health and you should respond. He says that an article written by Levicy “is not exactly mainstream on issues of gender.” It is despicable to deride a healthcare provider for urging colleagues and patients to be open and unashamed when talking about health issues.
Posted by: Dermite | January 13, 2007 at 01:57 PM
Dermite:
Thank you for your comments.
While I certainly respect your opinion, I wholeheartedly disagree that I was "dragging someone through the mud".
If you have read my blog posts, then you'll recall that I've written that I have nothing but the highest regard for my colleagues and that is true.
I've also written that in no way do I mean any disrespect towards Ms. Levicy.
However, there are certain aspects of this case which I have questioned from the beginning.
First and foremost, was the first nurse asking if the accuser had been raped.
I certainly respect that nurse as well but that doesn't mean I have to agree with what was done. In fact, as I've written, I strongly disagree.
The second was not doing the toxicology tests in the SANE exam.
I realize that the guidelines discourage testing. However, in a case where a patient states they combined alcohol and Flexeril, I would have felt the testing was appropriate - for the safety of the patient alone, if for no other reason.
Appropriate medical care takes priority over the SANE exam. I would not have felt comfortable letting such a patient leave without making sure she was safe to do so.
In fact, it was not doing the testing that first made me question how much nursing experience Ms. Levicy actually had.
The third was the report from Gottlieb that the speculum exam took an extremely long time. Hmmm.
The fourth was the report, again from Gottlieb, that Ms. Levicy told him a week later that the accuser's injuries were "consistent with sexual assault".
And of course, there is the "diffuse vaginal edema" issue.
I not only questioned it myself, but discussed it with several other medical professionals.
I wanted to make sure I wasn't mistaken, as I'm certainly not a person who thinks I know it all.
Everyone I spoke to, all with many years of experience, agreed with me.
In that particular situation, you had a resident overseeing a SANE nurse in training.
I feel, as does everyone I spoke to, that there should have been an experienced nurse supervising that SANE exam.
That's not trying to sling mud, Dermite, that's just being honest.
We all make mistakes, especially when we are first training. That's why we need supervisors and preceptors - especially in nursing.
In this case, you have three young men who may be facing 20 - 30 years in prison, based partly on the impressions of a resident and a nurse in training, with no supervision.
What if an honest mistake was made?
I do not need to work on that unit in order to know what the standard protocols are, Dermite. We're all trained pretty much the same way.
In fact, one of the reasons I have tried to be very specific, in my writing regarding all the different aspects of the SANE exam (aside from educating the public), is to show that our training and exams are pretty standard in all states.
I do not see how you feel that this is being irresponsible.
Is it that I'm publicly stating I question certain things regarding that exam or that I'm openly questioning a person's experience?
What do you think is going to happen in court?
Are you saying I should show my loyalty to my colleagues by being silent?
Are you saying, I can openly question anything I like but not another nurse, is that it?
Well, normally I wouldn't. But this is a very unusual case.
In this particular case, you have three young men being accused of something that, at this point, appears highly improbable.
In this case, you have three young men who may go to prison for decades.
I knew I would be sticking my neck out by posting the info and asking the questions I did, since FNE's are usually used by the prosecution.
I certainly didn't relish the thought of making enemies among law enforcement professionals, for whom I also have the highest degree of respect.
But I thought, if I don't speak up, if I don't ask the questions that need to be asked; if I don't point out to the general public, important things that should be pointed out(from a medical stand point), who is going to?
I felt it was right to let people see things from a different point of view than just what the media was filling their heads with.
Whether people agree or disagree, it's OK. It doesn't matter to me. What matters is that they get enough credible information to enable them to think a bit, broaden their views a bit, and start asking questions - not just blindly believe what the media is telling them.
I'm sorry you feel the way you do, Dermite, and I certainly respect your opinions, but I felt it was the just thing to do.
Posted by: Kathleen | January 13, 2007 at 06:07 PM