Part 1: Experience in Medical-Legal Work
Not every case can lead to a medical expert testifying, but the experts typically get involved in any capacity from the intake of a case through to the settlement. From helping establish the merits of a case to the Affidavit of Merit, the examination, reviewing the medical records review, report creation, depositions, and testimony.
Additionally, all types of attorneys utilize medical experts throughout the law landscape, from family attorneys ruling out false claims of medical-related support to how they help defense attorneys looking to understand the impact of GERD on a DUI/DWI breathalyzer. Good medical experts can assist the worker’s compensation case needing an occupational report or for the medical malpractice suit in need of a kidney transplant surgeon to review medical records or help the personal injury attorney needing an Affidavit of Merit for a client with a leg injury.
Naturally, you’ll select the expert by the fit between the key medical aspects of the case and the relevant subject areas studied by the doctor. Feet issues meet with podiatrists…concussions meet with a neurologist. They will be required to comment on procedures and standard of care, causality as well as short/long term issues from the medical conditions. The expert can be instrumental in helping an attorney rule out a case or position within a case before it has proceeded to the courtroom. Later they can become invaluable to discovery as well.
The things that make a doctor great are not always skills that make a great medical-legal expert. You must first be a great doctor to be a great witness, and motivations vary.
Yes, money is great and relevant to doctors, but so is being involved in cases in which they play a major role in its decision. It’s to help make it right some of the wrongs done to the patient or client. Knowledge, reputable college experiences, surgical studies, professors and teachers, books, and residency important. But what else? Great experts are sought after due to their name being whispered among attorney peer groups and search lists.
Having learned the craft of being an effective medical expert, they too must avoid the pitfall of becoming either overly consumed and tasked by legal work as they try to continue to lead busy practices and stay current on their chosen field or risk falling into the dreaded “hired gun” category, where the doctors CV becomes less about his qualifications as a doctor and more about the cases he won/lost.
While many cases settle long before an expert is called to testify, consider the questions that might be asked of your expert, or in more simple terms, what questions would you ask opposing expert witnesses?
How long have the provided expert witness testimony? How many have been for defense cases, and how many for the plaintiff? Are you board certified? Which board? What is your practical experience with the standard of care for any given procedure? How many times has the expert worked with the attorney? Is your CV current? What is your fee schedule? How much money have you earned from expert witness work? Have you ever been professionally disciplined? Has your license ever been suspended or revoked? How many times have you been subject to malpractice litigation personally?
As you begin to ask these questions, the quality of the expert comes into sharp focus. A good indication you have a potential expert witness is when these questions can be answered most simply and concisely by the expert.
The most impactful, successful, and sought-after experts are be able to speak in plain language to jurors about complexities within medical terminology, care, and procedure. Teaching experience can sometimes be an indication that they have experience doing so. By asking a few early medical-related questions of the doctor on the initial consultation, you should have the CV confirmed and taken another step in finding the most suitable expert in your vetting process.
As you can see, finding a vetted, properly experienced doctor can be incredibly difficult to find. And what if in your search on Google, search lists, referral partners, and SEAK turn up more “hired guns”? In our next article, we’ll examine the different avenues an attorney has to source experts and the pro’ s/cons of each.
Next, you may want to read this article next about digging into the C.V.
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