In most US jurisdictions, the plaintiff's attorney must
obtain a medical expert's opinion that there is a probable cause for a medical malpractice
action before a complaint can be filed. Too often, however, the attorney's inquiry
terminates at this initial review stage once a favorable opinion is obtained and a decision
to move forward has been made. This is a mistake and an underutilization of the medical expert.
Pursuant to this, below is a discussion of pertinent concepts that
will help attorneys, whether representing plaintiffs or defendants, properly and effectively
employ medical experts.
The initial consultation should include a qualified medical
expert's review of all pertinent medical records and, if possible, a review of historical
patient records. It is important that all the necessary records are eventually obtained and
reviewed prior to deposition and trial. No expert should be presented at deposition, or worse,
at trial with an important medical record that had not been previously reviewed, although it
was available or obtainable.
The expert should review medical records for all areas of liability (violations
of the appropriate standard of care) and look at questionable occurrences as areas of potential
liability. It is important to ask the medical expert to identify areas of concern that may be
outside his or her specialty and suggest other specialists for additional review and opinion.
Historical patient records should be reviewed to find any pre-existing conditions
that may have complicated the treatment and were missed by the treating physician(s) or which explain
an otherwise apparently unexpected result.
Often, a seemingly simple case requires more than one specialist to provide
standard-of-care testimony for different acts of malpractice, especially in hospital and multiple
physician matters. To successfully present or defend a case, the attorney may need an expert
to analyze and offer testimony as to causation and another to establish the proper measure of damages.
Depending on the case, one expert might be needed to provide testimony regarding a national standard
of care and another for local standards that may be pertinent. Regardless of the locale in which
they practice, board-certified physicians are expected to adhere to a uniform standard of care.
It is important to obtain an early and meaningful analysis of potential damages and
litigation costs - medical malpractice cases are costly to prosecute and defend. Unlike your
garden -variety personal-injury case, if you cannot establish a high likelihood of a substantial
settlement or verdict, there is very little probability of obtaining a nuisance-value settlement.
Medical malpractice insurers have long maintained a negative attitude toward
nuisance-value payments on cases they perceive as lacking substantial merit. For the defense,
an accurate and realistic analysis of liability exposure and potential damage awards will generally
dictate whether to litigate and proceed to trial in order to obtain a defense verdict or seek
early mediation and resolution. For the plaintiff's attorney, a failure to properly investigate both the
case's medical and economic aspects early can result in his or her overextending before realizing
the case is not worth pursuing because it lacks sufficient economic value.
Although medical malpractice cases are involved and expensive to litigate,
usage of medical experts is not the place to skimp. Any physician may opine about standard-of-care
violations and refer cases to attorneys for prosecution, but there is no substitute for an
early file review by a board-certified specialist who practices in the area of concern.
Finding the right expert is critical to case preparation, deposition and trial.
You should always ask each expert if he or she is qualified by training and experience to offer
expert testimony on every important point in the case. It is a disaster to be very close to trial
or in a deposition and find your expert attempting to proffer an opinion in an area that he
or she has no expertise. Employ as many experts as the case requires, but avoid redundancy,
which can give the impression of uncertainty and cause a negative juror reaction.
Preparation of the expert prior to deposition and trial testimony is another
area of concern that requires substantial attention by the litigator. In many jurisdictions, expert witnesses
must be "disclosed prior to trial". The attorney must set forth the areas of opinion
testimony on which the expert will opine. And care should be given to delineate in the disclosure
notice the areas for which the expert will testify. This precludes opposing counsel from
objecting at trial to expert testimony that was not properly noticed.
If an expert responds to a question during his or her deposition that he
or she has no opinion on the subject area, the expert will be precluded from testifying on that
point at trial. Make sure all potential "gaps" are filled by an expert with the appropriate specialization.
The litigating attorney does not usually need to educate the medical expert
about the medical aspects of the case, but don't underestimate the need to educate the medical
witness about the legal requirements and standards for proving your case. Therefore, you should do
Point out the important difference between medical "possibilities" and "probabilities". It is
not required that the testimony be based on the witness' being "absolutely certain" or "beyond any doubt."
The standard is "reasonable medical certainty," a legal fiction much akin to the hypothetical
Keep hypothetical questions as simple as practical and consistent with the case facts.
Avoid the witness' changing the "assumed" facts and straying from the case. Limit the testimony
and avoid wandering into areas beyond the witness' certification area.
Advise the expert to avoid arguing with opposing counsel, becoming angry or showing irritation
during cross-examination. The expert should appear unbiased and objective. An expert who has
testified for plaintiffs and defendants has greater credibility.
Remind the medical expert it is essential that he or she explain complicated procedures to the jury in simple terms that
laypersons can readily comprehend. At the same time, the expert should display his or her
intelligence, knowledge and expertise. It's a delicate balance.
Perhaps the greatest area of tension between medical experts and attorneys
who retain them has to do with scheduling and logistics. The best experts are often busy practitioners
who are likely to have teaching or hospital department responsibilities. They often devise their schedules
at least 30 days in advance and require such advance notice and arrangements to confirm their
availability. In addition, substantial deposits are usually required, with refunds available only
for cancellations occurring at least seven to 10 days prior to the scheduled date.
Medical experts are rarely well-adapted to "trailing" on the master trial
calendar and have little desire to find a few days of unscheduled (and potentially uncompensated) time
when the case in which they were set to testify settles on the courthouse steps the day trial was to
commence. Attorneys' respect for physicians' schedules goes a long way toward creating a harmonious
and positive relationship with medical experts.