Finding an Expert Witness Standards of Care
Finding an expert witness standards of care requires an understanding of clinical and non-clinical care management. Clinical and non-clinical care service providers vary significantly in their education, training, skills, documentation requirements, operational standards, and duty to adhere to standards of care.
For example, federal statutes issued by the Centers for Medicare & Medicaid Services (CMS) govern a wide range of healthcare professions, providers, services, and reimbursement under Medicare, Medicaid, and private insurance. These documents are available on the CMS website and are also published in the Federal Register.
Understanding the differences between Medicare and Medicaid, as well as between clinical and non-clinical care, is important when retaining an expert witness for standards of care.
Clinical vs. Non-Clinical Care
As with the distinction between Medicare and Medicaid, there are challenges in distinguishing between clinical and non-clinical care and payor sources.
- In simple terms, clinical care refers to skilled medical services reimbursed by Medicare, Medicaid, and private health insurers.
- Non-clinical care is non-medical, non-skilled care that is not reimbursed by Medicare or traditional health insurance providers but may be reimbursed by long-term care insurance.
- Non-medical care services can also relate to state Medicaid waiver programs. These services are known by various names, including home and community-based services (HCBS), supported living services (SLS), developmental disabilities (DD), in-home support services (IHSS), consumer-directed attendant services (CDASS), and others.
Standards of Care
Federal and state standards of care relate to specific medical and non-medical providers. For example:
- Healthcare facilities like hospitals, post-acute hospitals, ambulatory surgical centers, birth centers, dialysis and cancer treatment centers, and freestanding emergency care
- Residential facilities, including: assisted living, memory care, and residential care homes for the elderly and persons with disabilities
- Community-based health care programs, community health centers, rural health clinics
- Outpatient rehabilitation, inpatient rehabilitation, and nursing homes
- Home healthcare care agencies, home care placement agencies, hospice providers
- Non-medical in-home care agencies
- Portable medical services and medical providers
Depending on the facts of a case, retaining an expert witness with experience under Daubert and Federal Rule of Evidence 702, supported by education, niche skills, professional experience, and training, can be a decisive factor.
The Complexities of Standards of Care: Clinical vs Non-Clinical Care Services
Many clinicians, for example, physicians or nurses serving as expert witnesses, fail to distinguish between home healthcare and non-medical in-home care. Clinicians mistakenly believe that non-medical home care providers adhere to clinical-level requirements.
For example, clinical documentation in hospitals and nursing homes is extensive, sometimes down to the minute. On the other hand, documentation by non-medical in-home caregivers may consist of a simple checklist.
Clinicians’ beliefs about non-clinical documentation requirements and responsibilities can be flawed. As a result, non-medical in-home care agencies can be cited by clinician expert witnesses for failing to provide clinical care or documentation when such documentation is not required.
Many consumers who hire non-medical in-home care agencies lack an understanding of the boundary between non-medical care and clinical care. Family caregivers can expect in-home care agencies to perform the nursing care tasks they have been performing.
For example, administering medications, applying prescription cream or eye drops, or performing wound care are not activities that non-skilled caregivers are permitted to do.
If you are seeking more in-depth information on this topic, Pamela D. Wilson is an expert witness in non-medical in-home care for plaintiffs and defendants.
Finding an Expert Witness: Fiduciary Standards of Care and Care Management
In addition to standards of care applicable to clinical and non-clinical service providers, standards of care for fiduciaries and care management exist.
Finding an expert witness with this combination of experience can be valuable in cases where both clinical and non-clinical care is provided, and questions arise regarding the duty of care owed by a family member or professional in a fiduciary role.
For example:
- Is a power of attorney agent fulfilling their fiduciary duty for health and daily care, and financial management?
- Should a power of attorney be removed or appointed as a guardian or conservator?
- Is a guardian, conservator, or trustee fulfilling their fiduciary duty, or should they be removed?
These statutes and standards of care apply to professional fiduciaries, employees of the state department of health and human services, employees of the office of the public guardian, and family members who manage care for the elderly or persons with disabilities, acting in a legal role.
Fiduciary Statutes and Standards: Guardian, Conservator, Power of Attorney Agent, Trustee
State statutes govern the actions of guardians, conservators, and agents under a power of attorney.
Individuals performing these duties must not only know the applicable state statutes for their roles but also understand federal and state statutes applicable to their actions in managing care.
In addition to state statutes governing guardianship, conservatorship, and powers of attorney, some states impose additional standards of care and requirements through national organizations such as the National Guardianship Association.
This additional layer of governance protects vulnerable older adults and persons with disabilities from elder abuse, negligence, and non-adherence to standards of care and duty of care.
Care Management Standards of Care: Medical and Non-Medical Care
Many elderly and persons with disabilities have complex needs. This means they may see or receive services from a variety of clinical and non-clinical providers. For the average consumer or family caregiver, coordinating this type of care can be overwhelming and exhausting.
Individuals in a fiduciary role are held to higher legal standards because of state statutes and other applicable standards of care.
For example, a guardian may have a ward who resides in an assisted living community, is under a physician’s care, attends an adult day program, and is assisted by a non-medical caregiver.
In this case, the guardian must be knowledgeable about assisted living community standards, Medicare guidelines for health care and services, adult day program, and non-medical care agency standards.
Expert Witness Standards of Care
Finding an expert witness with care management expertise may seem like a tall order.
Pamela D Wilson, MS, BS/BA, NCG, CSA, is an expert witness with 25 years’ experience in in-home non-medical care, fiduciary work as a court-appointed guardian and conservator, power of attorney agent, and trustee.
- Wilson’s current work includes counseling and supporting individuals throughout the United States on all aspects of care management, including fiduciary responsibilities and the hiring and management of non-medical in-home care agencies.
- She has managed care for individuals residing in homes, care facilities, and residential homes who received care in hospitals, rehabilitation and nursing facilities, day care programs, and from home healthcare, non-medical in-home care, and hospice providers.
If you’d like to learn more about finding an expert witness and Pamela D Wilson’s experience in documentation review, report writing, and court testimony, complete her contact form.
More on Standard of Care Litigation
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