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recorded facts in a way that exonerates the defendant, or by
the examining attorney who asks the witness what is normally done
in similar clinical situations. Such testimony almost always describes
the witness habitually doing things correctly according to well
established procedures. Have you ever heard a witness claim that
he or she usually does things the wrong way?
For example, take a case in which a critically ill patient is
found dead in her hospital bed at 11:00 p.m., and the last documentation
of nursing contact was at 7:00 p.m., just after the shift change.
There are no written “standards” for frequency of nursing
checks in the hospital policies and procedures, but your expert
has advised that the generally accepted standard for a patient
in this clinical condition is nursing checks a minimum of one
time per hour. The nurse in question also knows this, and is concerned
that she will be criticized based on the record for not observing
the patient for four hours. She also professes to have no independent
memory of the events, and therefore must rely upon the record
supplemented by what she knows she normally does. She, of course,
insists that she checked on the patient every hour, because that
is what she always does for this type of patient, but she does
not necessarily make a record of every check if there is nothing
unusual or abnormal found.
While the nurse's testimony is exculpatory on its face, it may
of course be attacked collaterally by other facts and circumstances
tending to
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show that the nurse was not present as she claims. Moreover,
the following line of cross examination may score some big points
on the key issue of “standard of care”:
- You say you would normally see a patient in this critical
condition at least one time per hour Ð why is that important?
- Are you saying you are the only nurse in the hospital who
would see this patient at least one time per hour, or is that
the general practice in regard to a patient in this condition?
- So are you saying that you would normally see this patient
at least every hour because that is the practice that would
naturally be expected of you and any other nurse in this situation?
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- Would you agree that if you did not check on this patient
at least one time per hour, that you would have failed to conduct
yourself in a way that would be expected of any nurse in this
clinical setting?
In essence, by saying “I don't remember, but I know what
I always do”, the witness has opened the door to the establishment
of the standard of care from her own mouth. Moreover she has admitted
negligence if the jury rejects her claim that in this case she
did what was expected under the circumstances.
Finally, when a witness whose actions or inactions are being
criticized has no actual memory of the events in question (particularly
when other people whose actions are not being criticized have
good memories of the events), the door is open for aggressive
closing argument about the credibility of the witness.
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