Category: Testimony

I’m so excited to be able to announce that the FHO store is now live, and the 1st offering over there is the document, Injury Following Consensual Sex. Some of you may recognize a piece of it–the research grid–which used to be available as a simple pdf in the Clinical Guide. That is now no longer available, as it has been replaced by this, far fuller document, which includes complete links, updates, new resources, and some analysis that should assist clinicians heading into court. I hope you find it useful–it’s $4.99 for the download (plus tax).

Please keep in mind, this is like any other copyrighted, published document in that it should not be posted in its entirety or distributed widely. I have endeavored to keep FHO free for as long as possible, and the bulk of the content will remain free, but more resource-intensive items will go behind a paywall, and from the comments I have received over the past week, the overwhelming response has been that there are some things you believe are worth paying for. The item about which I asked, the research compilations, will not necessarily have this exact format. They will be more along the lines of annotated bibliographies and based on all but one response of the close to the hundred I received, this sounds valuable to most of you.

As always, I very much appreciate the support FHO readers have given me and this nerdy little site, as we’ve grown over the past (almost) decade. I look forward to hearing your feedback about this first document, and requests for things you’d love to see from FHO in the future. Now get back to enjoying the conference (or seeing patients, or whatever else it is you’re doing with your day 🙂 ).

I am so fascinated by this: a couple of professors from the University of Washington have created an entire course, with syllabus and lectures available online, Calling Bullshit. Its purpose is to teach people how data can be manipulated, and in turn to help create more enlightened consumers of information. Since we almost always discuss the issue of identifying what constitutes good science in my workshops on testimony, I am now pleasantly working my way through this whole course.

From the site:

Of course an advertisement is trying to sell you something, but do you know whether the TED talk you watched last night is also bullshit — and if so, can you explain why? Can you see the problem with the latest New York Times or Washington Post article fawning over some startup’s big data analytics? Can you tell when a clinical trial reported in the New England Journal or JAMA is trustworthy, and when it is just a veiled press release for some big pharma company?

Our aim in this course is to teach you how to think critically about the data and models that constitute evidence in the social and natural sciences.

Highly. Recommend. If you’re looking for me I’ll be sitting by my parents’ pool honing my bullshit detector 🙂

{H/t @FastCompany}

So I recently received a comment that my concern about forensic nurses’ social media use is “overblown”, which I confess, made me giggle. It’s not, of course, and my own experiences doing this work have only made it clearer as social media becomes more and more entrenched in our daily lives. But if anyone needs evidence that your social media feeds will be parsed apart (even the ones you believe are “private”) and may be brought up at trial, look no further than expert testimony from the Cosby trial last month: I suggest you check out this, this, this, or even this.

As someone whose whole life is on social media (basically), I am not suggesting you avoid it, but keep in mind that at any time you may have to answer for what’s there (including things you “like”, or are tagged in, and not just stuff you post). And program managers and trainers, if you aren’t providing education on this topic, I would encourage you to fold it in. I am neither seeing, nor hearing about widespread discussion on this topic, and the concerns and potential problems aren’t going to lessen anytime soon.

To make it easier, I have created a new clinical guide on the subject. Hope this helps move the conversation forward.

As we head into one of my favorite weeks of the year (the testimony course at the NAC–can’t wait to see some of my FHO readers there!), I’ve updated a couple of the most popular clinical guides: Testimony and Peer Review. Enjoy!

I have been asked to address a question that seems to crop up frequently–should I charge attorneys for my time as an expert in court when I’m the treating clinician? There seems to be some difference of opinion about this, so sure, I’ll wade in and provide what will be, for some, an unsatisfying answer. No. And here’s why–you should be compensated by your own program for time preparing for and going to court, whether as part of your per case pay (some places roll that into the rate) or billing your program for that time on a case by case basis. When I’ve asked prosecutors close to me about their response to a treating clinician wanting to bill for their time providing expert testimony, they’ve universally shrugged and essentially said, “I’ll just subpoena them”, which obligates a clinician to appear, regardless of their feelings about being paid. I am a huge proponent of people being compensated fairly for work they do, and this is not a nurses-being-undervalued issue. Physicians who provide care to patients are also expected to show up in court without being paid additionally as experts by the requesting prosecutor’s office.  Our jobs include providing testimony for cases that go forward. We sign on for that when we hire into programs (managers: this is something you should be reinforcing to new hires). The National Protocol says it quite concisely: “It should be expected that examiners will be called on to testify in court as either fact and/or expert witnesses, even though in some cases, a plea bargain may be agreed upon, or the prosecuting attorney may decide not to try the case. Examiners should always conduct and document each examination knowing that legal testimony may ultimately be required.” Clinical programs should compensate clinicians for all aspects of the patient encounter, which in some cases includes courtroom testimony. And it’s a benefit to patients that you are an expert, and may be recognized as such by the courts. For those who don’t feel they are being fairly compensated for court appearances, that’s a negotiation with your organization, not the prosecutor’s office.

Now, should we be compensated by attorneys for cases in which we were not the treatment provider? Absolutely. And everyone should have a fee schedule they can provide should the opportunity to perform this type of expert consultation and testimony arise.

Some of you will undoubtedly disagree with me, and that’s cool–I’m happy to debate the merits of my opinion via email or in the comments. For those of you who have developed creative solutions for addressing this issue, by all means, I’d love to hear about it. Knowing how often I am asked about this issue, I am certain I wouldn’t be the only one.

{Note: this post doesn’t discuss the use of social media for professional purposes, only personal ones. We’ll address the professional use of social media, such as crowd-sourcing clinical information, at a later date.}

A favorite topic of conversation here at FHO continues to be the use of social media by forensic clinicians. In my travels I have seen my fair share of what I would consider to be questionable or even inappropriate comments on social media, and during testimony workshops, I definitely field a number of questions related to this issue. I have created a short course on personal use of social media (which I may publish in the future), but in the meantime, I’ve created a 10 Things list to help provide some guidance:

1. Don’t feel like you have to give up social media use just because you do this work, but understand its potential impact on your career (and other aspects of your life). Our lives on social media may only portray a fragment of our thoughts or feelings on any given subject, but social media, and how people read into your social media feeds, isn’t about nuance. Jon Ronson, who wrote a book on public shaming and social media’s role, said: “The way we are defined on social media…has become more important than who we actually are as people because everybody you date is going to Google you. Every time you apply for a job people are going to Google you. So these false definitions, these scant parts of your life, these tiny moments, the most extreme thing you did, as opposed to the 25 billion ordinary things that you did, have now become more important ways of defining you than who you actually are.”

2. Boards of Nursing have an interest in our social media use. A 2012 article reviewed the nature of related Board complaints. Note that some of these are a bit ambiguous, meaning that things like “boundary violations” are open to interpretation:

• Breach of privacy or confidentiality against patients
• Failure to report others’ violations of privacy against patients
• Lateral violence against colleagues
• Communication against employers
• Boundary violation
• Employer/faculty use of social media against employees/students

If allegations of misuse of social media are found to be true, the nurse may face disciplinary action by the BON, including a reprimand or sanction, assessment of a monetary fine, or temporary or permanent loss of licensure. (See also: White Paper for definitions and guidance). Civil and criminal penalties are also possible. Check to see what your own State Board has to say on the topic, if anything (e.g.).

3. Physicians are not exempt from reprimands and Board complaints for social media use, and specific guidance exists.

4.  Regardless, many professional organizations view social media use as being more than just compatible with our role as healthcare providers: “Social networking can be a positive tool that fosters professional connections, enriches a nurse’s knowledge base, and promotes timely communication with patients and family members.” (ANA, 2012). Clinicians should feel free to embrace social media, but programs should have policies that help define expectations. If your parent organization has one, great–make sure you review it, adopt it (if it gets the job done), and distribute to every member of the team (including your Medical Director). Program managers–if there’s no policy in place, it’s incumbent upon you to create one. Every forensic clinical program should have a social media policy, regularly reviewed and updated. Examples of policies that can be adapted or used as a template can be found here, here, here, and here. (And there are many others–if you have a good one that you’d be willing to share, I’d love to see it.)

5. There is no such thing as privacy online. I promise you. No matter how stringent your privacy settings are on your accounts, it only takes one person with access forwarding something you’ve posted to others to expose your private online activities. Don’t lull yourself into thinking you can keep online information contained. You can’t.

6. There is also no such thing as delete. Information is cached online, even when you think you’ve gotten rid of it. For example, many years ago, I made the switch from my old URL to the current one, and migrated everything to a new platform. I “deleted” the old one. And yet, I still can pull up pages from the previous site. Many things may not stand the test of time, but tweets and Instagram posts will.

7. In our line of work, you can’t truly de-identify a patient enough for social media, so just don’t try it. Keep all patient information out of your social media feeds. Seems obvious, but it happens, even if it’s an innocuous Instagram photo at work that happens to have a board with patient names in the background. There’s a difference between what a patient chooses to share vs what a healthcare organization chooses to share with the patient’s consent vs a nurse or physician’s ability to share. These 3 things are not equal.

8. Disparaging a co-worker or your employer online is also problematic, even if they are never identified. It speaks to a lack of professionalism, which is never a good look on anyone. Don’t be that guy. My general rule of thumb is if you wouldn’t be comfortable saying it to someone’s face, don’t post it. Need to vent–do it one on one with a person you trust.

9. People have asked me how I use social media accounts when getting ready for trial. The answer is, I don’t, generally, at least not with anyone that has reached out to connect with me personally on any number of social media platforms, whose information would otherwise be inaccessible to me. To do so feels a bit exploitative, and I don’t like the way that feels, so I avoid doing it. But that’s me. Others may have a very different perspective on it, so be prepared for that possibility (and consider how you might answer questions about what’s in your social media feed that may imply things like bias or unprofessional behavior). Btw, I don’t have the same qualms about information that is publicly available (meaning no friend or contact request is needed to access the information). For those of you who have considered it, specifically friending someone on social media for the purpose of using it in court is ethically shady (our attorney colleagues have called it straight up unethical). I don’t know of any healthcare standards that have said this kind of behavior is verboten, but I think we all know it’s a lousy practice.

10.) This topic is a good one for a staff meeting or a component of a professional development day. If you’re looking for some resources apart from the ones already mentioned here, let me suggest a few:

Social Networking Principles Toolkit (ANA)

A Nurse’s Guide to the Use of Social Media (NCSBN)

Ethics in Practice for Registered Nurses (Canadian Nurses Association)

Professional Guidelines for Social Media Use (AMA Journal of Ethics)

{What else should be included that I haven’t touched on here? Feel free to add your two cents in the comments below.}

Generally, I don’t post live events here, but seeing as this is one of my very favorite courses to teach…

Once again we are putting on the Sexual Assault Nurse Examiner Expert Witness course at the National Advocacy Center in Columbia, SC. It will be held July 12-14, and is open to both SANEs and prosecutors. Priority will go to those working in Indian country; regardless, if you are at all interested in this topic, I encourage you to apply. The conversation at the course is always fantastic, and it’s experiential  (which means you’ll be testifying, in a courtroom with a prosecutor, defense counsel, and a judge). Nominations for the course are due May 5th. This is a free training, and if you’ve never been to the NAC, I can’t say enough about what a stellar location it is.

Loading...

Taking too long?

Reload document

| Open in new tab

Download [152.36 KB]

Feel free to email me if you have questions…

So like many of you, I am in the process of putting together my abstracts for IAFN, but I could use some input here. I’m trying to identify content that people think is advanced when it comes to courtroom testimony. I’ll probably always submit content around the basics, but I really struggle with what a truly advanced session looks like (and how to implement it in an interactive way). I know what *I* think is advanced, but that may not resonate with everyone. In the interest of trying to meet the needs of the field, my smarty-pants wife suggested I crowdsource this dilemma. A fine idea–please share your thoughts in the comments, or via Twitter or email.  And don’t be surprised if I reach out to some of you about your ideas–I may need to tap into the collective brain trust to get this one on point.

Thanks!

An issue that comes up repeatedly is confusion between receiving a certificate of completion and being certified. I notice it when listening to people discuss their qualifications, and while it may seem like semantics, it’s a pretty critical point. In order to be certified (as a forensic nurse, a SANE, what have you), you must complete an official certification process. In our field, that may be one offered by your state, and there are a small number of states that actually require certification for sexual assault nurse examiners (usually only RNs; APNs, PAs and physicians are frequently exempt from state certifications), or more likely, it’s through successful completion (and subsequent maintenance) of board certification (e.g. the SANE-A or SANE-P; the AFN-BC).

Here are things clinicians may do that are important to practice, but do not make them certified:

• Complete a certificate course (for sexual assault or any other area in forensic healthcare)
• Complete the clinical requirements that accompany a certificate course
• Successfully demonstrate basic competencies to a program’s supervisor to begin practicing autonomously

I think this generally provides a good visual (found here, but versions also can be found on a variety of websites):

It’s a small and easy mistake to make, confusing the two concepts, but if you wish to represent yourself accurately, it’s important to know the difference.

[Related: What credentials can I list after my name?]

In looking for something completely unrelated, I stumbled upon this infographic from Elsevier on how to read a scientific paper. I certainly spend enough time talking about how important this skill is to develop when I discuss defensible practice and testimony. I like this resource because it acknowledges up front that this is unlike other reading we do in our lives. It’s particularly good guidance to follow for the articles upon which you plan on relying in court (or the ones you will highlight to justify changes to clinical practice):

This Forensic Nurses Week, we’re talking about ways to make our practices better. The last couple days have focused on individual performance. Today, let’s talk about program performance…

The expert at trial should never be the first person to review our record of the patient encounter.

But that’s exactly what happens when a forensic nursing program has no formalized quality improvement process in place. And that’s a problem–because it means the program has set no benchmarks for what constitutes optimal performance. If there are no benchmarks for quality, how can a forensic nurse know if they’re doing a good job? How can they grow in their clinical capacity? How can the program hope to effectively (and sustainably) expand their program to other patients?

As we wrote for the SANE Sustainability project:

Every SANE program should have a process for regularly reviewing patient care and clinician performance. Having such a process means that the program has set specific and achievable benchmarks for quality. Programs that have a plan in place often center that plan on quality assurance initiatives, which are an appropriate initial step. But programs should strive to incorporate a quality improvement process for sustainability. Quality assurance focuses on the individual and addresses a problem or deficiency that has already occurred; quality improvement is systems-focused and is proactive, done with the intention of making changes to prevent future issues from occurring. Some aspects of a quality process can serve a dual role: chart review, for example, allows for both quality assurance (e.g. making sure that documentation is complete for every patient seen in the program) and quality improvement (e.g. noting that multiple clinicians appear to have issues obtaining clear photos at close-range). Peer review also can serve both functions, bringing to light issues with individual documentation or interpretation of findings, but also serving as an educational opportunity that informs the clinical knowledge of all participants.

You can read the full piece on the NSVRC website. It’s full of resources and suggestions for implementation. (And if you still haven’t downloaded the app, get it here).

This should not be an optional program component. I have never talked about creating a defensible practice (one that can withstand vigorous scrutiny on cross examination) and not discussed the importance of a quality process. Program managers should fight for paid time in their schedules to implement and conduct quality improvement activities. Forensic nurses in programs without quality improvement processes should strenuously advocate for them. Medical Directors should step up and participate, as well–your voices are needed as one aspect of an effective quality process. And if you already have a process in place, talk about how it’s working with other program managers who are struggling to make this happen. Quality improvement processes benefit professional growth, efficacy of witness testimony, and most importantly, patient care.

Tomorrow, we wrap up the discussion of improving our profession with a look ahead. What’s next for us?

Because it’s Forensic Nurses Week, we’re focusing on ways to improve practice. Today, let’s talk about documentation.

Want to know my one wish for better medical-forensic documentation? Three words: review of systems (ROS). Seriously–hear me out on this.

In order to improve documentation, it’s critical to consider its purpose. We don’t document our encounters in anticipation of trial. We document because it’s the standard of practice for any healthcare encounter, forensic or not. We document because we aren’t going to be the last person to care for this patient. Everyone benefits from picking up where the last guy left off rather than starting from scratch each time (an argument for why medical-forensic records should be available to other healthcare providers, but that’s another post).

So why am I so enamored with ROS? Because it forces us to think about the entire patient, not just the most likely sites of injury or the areas that get swabbed; because it allows us to consider concomitant health issues with which our patients present, ones we can address while they’re with us.* And since we were talking about differential diagnoses yesterday, let’s keep in mind that completing a ROS with every patient often allows us to better identify the most likely causes for the patients’ findings.

Why do I like to see it in records I review before trial? Because it’s harder to argue that the treating clinician is just a forensic technician or arm of the investigation when there is this type of comprehensive exam documented. It demonstrates a commitment to caring for the whole patient and not just focusing on where potential evidence may be found. I have no hard science to back this up, but my anecdotal experience is that programs that don’t conduct (and document) ROS with their patients are more likely to have other gaps in their exam process and documentation: missing vitals, health history, allergy information, suicide assessment, danger assessment, follow-up recommendations. Conducting a ROS means clinicians are more likely to subscribe to the notion that experiencing violence is a healthcare crisis, not just a crime.

Tomorrow, let’s talk about the one process program managers can implement to move our practices forward.

*Many of my patients don’t regularly access healthcare services, so it’s a shame to waste the opportunity to provide as much care as I am able to, simply from a public health perspective.

This week, because it’s Forensic Nurses Week, I’d like to talk about how we can keep getting better. First up: one way to generally improve our value to patients and the justice system simultaneously.

There’s a lot to really celebrate about the work we do in forensic nursing. But we still have areas upon which to improve. Often times our field is preoccupied with the legal aspects of the work, sometimes to the detriment of good patient care. There is an abundance of research that underscores just how extensively violence impacts health in both the short- and long-term. And yet so much focus is on evidence collection and the patient as “crime scene” (a completely unfortunate designation).

The best thing we could do to be better at this work, both in the exam room and in the courtroom would be to do everything in our power to improve our assessment skills. Participate in as many educational sessions as we can find on injury evaluation and general physical assessment; spend time with more experienced clinicians crafting comprehensive differential diagnoses for the injuries and infections we see. Not only will it mean better care for each patient who sees us (and appropriate anticipatory guidance prior to discharge), it will also mean that if we take the stand we can speak extensively to the clinical care of our patients, including what else could have caused the issues the patient had (and why we ruled out many of them). Why is that important? Because we are licensed nurses and our role is to provide healthcare, not investigate crime. Want to have the opportunity to tell a jury what the patient said about the assault? It’s a lot less likely to happen if our exam process sounds more like an extension of the investigation rather than a comprehensive healthcare encounter. Want to be the most credible witness possible? Make sure there is little room to attack testimony as biased.

On a related note, I don’t think it’s necessary to be an advanced practice clinician to be a good forensic nurse, but because of the autonomous nature of this work, we do have to develop some of those skills to be particularly proficient. That comes from flexing our assessment muscles (and the documentation muscles that go with it). Comprehensive patient assessments (with corresponding comprehensive documentation of those encounters) increase our efficacy in court. Because our job in court is to teach–not to get the “bad guy” and not to make the prosecution’s case.

I would submit that if we concentrate on enhancing our clinical capacity, patients will also benefit in the courtroom, but the inverse is definitely not true. If we focus on what could happen in the courtroom, patients’ healthcare will suffer. I see it over and over again when I review records and listen to clinicians testify.

Tomorrow, let’s discuss documentation– specifically the one thing that could universally improve medical-forensic record completeness.

Don’t forget we have a giveaway going on this week. See all the details here.

I taught a new session at IAFN this year, Evaluating the Treating Clinician’s Testimony: A Defense Expert Perspective. It was one of ten that was recorded, and it’s now available for purchase on the IAFN site. For $25 ($40 for non-IAFN members) you can check out the talk– 1.5 CEs are included in the fee. Find this, and all of the other recorded sessions here.

I wanted to address an issue that I heard repeatedly at the conference; one that has also been brought directly to me from FHO readers–injury documentation. There was a session in Denver where it was the focus, and before I go into the heart of things I want to start with this–this post is solely intended to add to the discourse, since that’s what helps move the profession forward.

Now, I was not in the session, but I heard from so many people who were there, I feel confident that I am accurately reflecting at least a bit of what has people talking: the notion that we shouldn’t document blood, but rather red fluid (or something to that effect), and we should not document bruise, but simply discoloration, and an appropriate descriptor. The reasons appear to stem from a cross-examination experience at a trial, where a nurse couldn’t speak to how she definitively knew blood was blood, and presumably, the same was true of the bruise (if I have any of this wrong, please correct me). Were I in this session, it’s possible I would have agreed with everything else the presenter said, but on these two points let me offer this:

1. We are clinicians, and as such, we assess patients. But we have to be able to describe the knowledge base that informs our capacity to do so. I feel fairly confident in my ability to identify blood–from its feel, its source (such as a wound out of which it is flowing); the way it appears after it has dried; the accompanying clinical signs, symptoms or history that support its positive identification, such as wounds, or pain, or a report of a traumatic event. You get where I’m going with this. I would question a clinician’s ability to definitively identify bleeding in the vaginal vault as menstrual blood, perhaps, but I wouldn’t challenge the blood part of it. Just the nature of that blood. The same is true for bruises: in general, I have been assessing them my whole career and I know what one looks like, that it is generally tender with palpation, often accompanied by a history of trauma, etc. The exception to that is when it’s the cervix–then I will call it discoloration, because many things can give the appearance of a bruise, but until I have the ability to assess the cervix on follow up, one of the things I can’t rule out is the possibility that that discoloration is normal for that woman.

2. I generally try and remain consistent in how I assess and document patients. Which means if I would use the terminology with other patient populations (read: primary care), I wouldn’t change it for the forensic one. I implement the same nursing process no matter the patient population, only the chief complaint and some of the tools and forms I use differ. The approach is generally consistent. I use blood and bruise for other types of patients; I’m probably going to use it for this patient population, too.

3. Perhaps one of the most important points: a tough cross-examination is not enough of a reason to change practice, but instead an opportunity to identify problems with your response. A nurse who can’t articulate why she knows something is blood shouldn’t just stop identifying blood, but get better at describing the information that supports its identification as such. This is true for much of what we do–there will be times when some aspect of our practice subjects us to pain on the stand, but most of the time, the 1st step should be to do the post-game analysis and see where we need to get better at our explanations rather than simply changing practice based on that single experience.

I’m certainly interested in people’s thoughts on this. There’s no single answer, so we can respectfully disagree. But if you do disagree, please help me understand where our opinions diverge so that all of us can engage in more thoughtful and constructive debate.

We need to have a talk about evidence-based practice. This is a term that gets tossed around frequently, but understanding exactly what constitutes evidence-based practice (EBP) may leave folks feeling a bit hazy. This becomes a problem for both patient care (e.g. changing practice based on one article or lecture at a conference) AND testimony (e.g. discussing that term in court without having a handle on it’s actual meaning). It’s okay if you aren’t 100% clear on what EBP is as it pertains to nursing, but embrace this as an opportunity to start learning more.