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Can a lawyer, through due diligence, question potential witnesses including a patient at a hospital?

Alexandria, VA |

This would be a hearing for an administrative grievance for expelling a nursing student from a program as a result of allowing a patient to improperly use her cell phone. Wouldn't a lawyer have a right to question this witness, who supports her and requested the cell phone be used in the first place?

Attorney Answers 2


  1. Best answer

    The procedural rights of the expelled student depend on the specifics of the administrative appeal process adopted by the school. If the school is a public college or university, then minimal due process is all that the law requires for the disciplinary appeal process, and that does not necessarily require allowing direct questioning of a witness by the appealing student. Some schools will allow such questioning voluntarily, or if the witness is willing, but most will not and it is not legally required unless the school's formal process (administrative rules and regulations) specifies that such questioning is a student right.

    If the school is a private college or university, then the school has almost unfettered discretion in its process for imposing discipline and allowing student appeals (although accrediting entities are beginning to make their views a part of the accreditation landscape). Very few private schools will allow direct questioning of witnesses by an appealing student or student's attorney.

    The issue may not be critical here. In my view -- and I have a lot of experience in these matters -- there is nothing that the patient could offer that would affect the outcome here. It is a red herring to assume that the patient can get the nursing student off the hook by admitting or acknowledging that the patient requested to use the phone. Nurses and other medical care staff are not servants to patients and are often required for professional reasons to refuse (tactfully) patient requests and demands. It is the judgment of the student that is under attack here -- not the judgement or conduct of the patient.

    Expulsion is a very harsh remedy on these facts, to the extent that you have summarized them fully. If there is time, I strongly urge you to get counsel who can pursue a negotiated result short of expulsion. Try to find an attorney who has a history or connection with the school: successful alum, donor, etc.

    More info here: http://www.avvo.com/legal-guides/ugc/hard-facts-for-students-re-cheating-plagiarism-and-other-academic-integrity-violations

    HARD FACTS FOR STUDENTS RE CHEATING, PLAGIARISM, AND OTHER ACADEMIC INTEGRITY VIOLATIONS

    NOTHING SAID HERE IS LEGAL ADVICE! Read this notice BEFORE you contact me! My posts on Avvo in response to the public's questions are never offered as legal advice. Do not rely on any response posted by me as applicable to your specific problem or circumstances. Exchange of information through Avvo's Questions - Answers forum does not establish an attorney-client relationship with me or my law firm. My law firm does not provide free consultations. See http://www.avvo.com/legal-guides/ugc/free-consultation-the-purposes-and-utility-of-free-for-potential-clients-and-for-attorneys for further details on that issue. Please do not call or email me with a “few questions.” I give advice, make recommendations, and answer specific questions only after reviewing the documentary record and other evidence applicable to a specific client, and only in the course of or following a conference with my client in which all of the relevant information can be identified and developed. AND I give legal advice ONLY in the course of an attorney-client relationship created and defined by a written contract for services, signed by my client and by me or a member of my firm, for which payment has been made. My law firm presently accepts cases involving State and federal licenses and permits; professional (State or federal licensing agency) discipline against State and federal licenses; and disciplinary and academic disputes involving universities, colleges, boarding schools, and private schools. We accept grievances, administrative claims, arbitrations, mediations, negotiations, and other non-litigation matters pertaining to employment, hospital and facility privileges, tenure, and contractual disputes. We conduct seminars and training in employment law for employers and union advocates, and in issues of professional/occupational licensing law for criminal defense attorneys. We accept NO contingency work, and we take no matters for which CCP discovery is applicable.


  2. Ms. McCall has provided you with a very comprehensive answer here. On its face it is odd that the college is considering expulsion for allowing a patient to use a nursing student's cell phone. Is it possible that the student has other disciplinary actions, or that the patient was being treated for drug or alcohol issues with restricted telephone use? Otherwise, if this is the only offense the student has, and there were no specific orders restricting the act. As advised find an attorney who handles university issues.
    Best of luck.

    NO LEGAL ADVICE GIVEN. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship set forth in a written document executed by the client and by me or a member of my firm. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. My law firm does NOT provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your case. I can give advice, make recommendations and answer specific questions only after reviewing the evidence and documents applicable to a specific client and following a personal meeting in my office in which the relevant facts can be developed and analyzed. My law firm presently accepts cases involving State and federal administrative law; professional licenses and permits; education law; employment and labor law; and litigation matters in state and federal courts. Our practice is limited to the States of Oregon and California. If you have a case in any other state we would not be able to assist you. Unless we have a signed written fee agreement you are not my or my firm's client.

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