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

Asked 6 months ago - 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. Christine C McCall

    Pro

    Contributor Level 20

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    Answered . 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...

    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... more
  2. Randy Jay Harvey

    Contributor Level 15

    2

    Lawyers agree

    Answered . 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... more

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