Choosing the Right Nurse Expert Witness: Insights from Apex Experts' CPD Webinar

The importance of selecting the right nurse expert witness cannot be overstated in clinical negligence litigation. While many legal professionals are familiar with instructing medical experts, nursing expertise presents its own distinct challenges. Apex Experts recently hosted a CPD-accredited webinar led by Wendie Smith, an Advanced Nurse Practitioner and experienced expert witness, to explore this highly specialised topic. This blog summarises the key insights shared during the session and offers practical guidance for legal professionals navigating nurse expert witness selection.

Why Choosing the Right Nurse Expert Matters

Choosing the correct expert witness is not simply a procedural step, it’s a fundamental part of building a defensible, credible case. As Wendie emphasised, even the most qualified clinicians may not be appropriate if their experience doesn’t directly relate to the care in question. For example, a hospital-based nurse may not be suitable to comment on care delivered in a community setting, and vice versa.

The legal weight of an expert's opinion hinges on their ability to:

• Demonstrate first-hand clinical relevance to the index event.

• Articulate opinions that are logically reasoned, internally consistent, and based on current practice.

• Withstand judicial scrutiny and cross-examination under CPR 35 requirements.

In essence, credibility rests on matching clinical expertise with the facts of the case.

Clinical Expertise vs Legal Competence: Dual Foundations

Wendie outlined that being a strong expert witness requires two distinct skill sets:

Clinical Expertise

• The expert must have recent, relevant, and demonstrable experience delivering care similar to the care being examined. Specialisation within nursing is vast, covering domains like:

  
  

  • District nursing

  • Primary care nursing

  • Advanced practice nursing

  • Tissue viability

  • Mental health

  • Emergency and urgent care

  • Safeguarding and palliative care

    
    

• A thorough review of the expert’s CV is critical to ensure the right sub-specialty alignment.

  
  

Medicolegal Acumen

• The expert must also understand how to present their clinical opinion within the framework of legal proceedings:

  
  

  • Writing clear, CPR 35-compliant reports.

  • Applying the correct legal tests (e.g., Bolam and Bolitho).

  • Presenting evidence logically.

  • Being prepared for cross-examination.

    
    

• As Wendie stressed, even a clinician with excellent expertise may struggle as an expert witness if they cannot articulate their opinion effectively under cross-examination.

  
  

The Consequences of Poor Expert Selection

The webinar referenced real-life case law examples (such as Arksey v Cambridge University Hospitals NHS Foundation Trust) where experts failed to meet acceptable standards, undermining entire cases.

Common pitfalls in poor expert selection include:

• Instructing experts without active registration (e.g., NMC or HCPC).

• Selecting experts with outdated clinical experience.

• Experts exceeding their scope of practice or commenting on areas outside their specialism.

• Inability to explain reasoning clearly under cross-examination.

As Wendie noted, "it's not just about what you say, but why you say it, and whether you can defend that position in court."

Early Instruction is Key

One particularly important insight from the webinar was the value of early expert instruction:

• Experts engaged early can help shape the initial case framing.

• Early input allows for thorough review of fresh records.

• Experts can assist in drafting clear particulars of claim that reflect clinical realities.

  
  

Waiting too long to involve a nurse expert can lead to missed opportunities to strengthen the factual matrix of the case.

Real-World Examples: Matching Expert to Case Type

Wendie provided several powerful examples that illustrated why matching the right nurse expert is so important:

• Pressure Injury in a Nursing Home: A district nurse expert would be required due to their direct involvement in residential care.

• Urgent Care Centre Failures: An emergency nurse practitioner or advanced urgent care nurse is best placed to assess breaches in rapid assessment settings.

• Advanced Wound Care Mismanagement: A tissue viability nurse expert would be essential when examining specialist wound management protocols.

  
  

The Role of a Good Letter of Instruction

Beyond expert selection, a strong letter of instruction can significantly improve the clarity and utility of expert reports. Wendie highlighted that well-drafted instructions should:

• Provide a concise, factual timeline.

• Ask specific, focused questions tied to the key issues.

• Identify areas where a range of opinions may exist.

• Allow the expert to form an independent opinion without leading assumptions.

Poorly crafted instructions, vague chronologies, or pre-supplied timelines may inadvertently introduce bias or factual errors.

Documentation Review: What Experts Look For

When reviewing care home or community care records, Wendie described the detailed forensic approach required:

• Comparing hospital discharge records with care home body maps.

• Reviewing Waterlow scores, nutritional assessments, and turning charts.

• Identifying missing or inconsistent evidence.

• Being clear where documentation is absent but avoiding assumptions that it was not done.

As she advised, “It's not my responsibility to judge whether care was provided; my role is to present what the evidence shows and outline what would have been reasonable and responsible care."

Can New Experts Be Mentored?

A brief discussion was held on whether new experts benefit from mentorship. While mentorship can help build early report-writing skills, once appointed, an expert witness must always present their own independent opinion to the court. Judicial expectations for independence remain paramount.

Final Considerations for Solicitors

In conclusion, Wendie summarised that choosing the right nurse expert witness requires:

• Careful review of clinical experience.

• Consideration of relevant sub-specialties.

• Ensuring current registration and active practice.

• Verification of legal training and CPR 35 familiarity.

• Early engagement wherever possible.

As she aptly put it: “Having a professional discussion about why the expertise is the right expertise may be far more valuable than just matching a CV.”

Need Help Selecting the Right Nurse Expert?

At Apex Experts, we work closely with legal teams to ensure that each instruction is matched with the most appropriate expert. Our panel of highly experienced nurse experts covers a full spectrum of clinical practice.

If you have a case where nursing care standards are under scrutiny, contact us to discuss your requirements. Please feel free to email us at info@apexexperts.co.uk, give us a call on 0203 633 2213 or visit our contact us page.