The Use Of Experts In Medical Negligence Cases: Selection And Communication

By Ralph F. Holmes

In a recent birth injury case, my experts included a perinatologist (a specialist in high risk obstetrics), a neonatalogist (a specialist in newborn pediatrics), a neuroradiologist with expertise in the timing of perinatal brain injury, a pathologist with expertise in placental tissue pathology, a pediatric neurologist, a life-care planner, and an economist. Yet with these seven on board, the addition of one more--an infectious disease specialist--became necessary after the depositions of the defense experts as they introduced new issues of virology into the case. The addition of this eighth expert illustrates the central role of experts in medical negligence cases as well as the importance of evaluating the expert lineup on an ongoing basis.

Medical negligence, more than any other field of litigation, requires the involvement of expert witnesses. Indeed, their involvement is mandated by RSA 507-E:2. Below are some practical tips for selecting and communicating with expert witnesses in medical negligence cases. A subsequent article will discuss disclosure of experts in discovery and their depositions. Although the comments below are directed to medical negligence litigation, many of them apply to the use of experts in other types of technical cases.

Selecting The Experts

By statute, the plaintiff must present expert testimony in proving the claimed deviation from the standard of care, medical causation, and physical damages. In a very simple case, a single physician expert might be sufficient. More often, and especially in cases presenting complex issues of medical causation such as the birth injury case above, representatives from multiple medical disciplines are required. If the plaintiff's injuries can be interpreted as arising from a number of etiologies, counsel should consider having the case evaluated by at least one specialist from each of the corresponding medical disciplines. If new etiologies are introduced into the case by the defense experts, the addition of a rebuttal expert such as the infectious disease specialist in the birth injury case above may become necessary.

The law does not require that medical experts testifying on issues of standard of care be in the same medical specialty as the defendant, but only that the experts have knowledge of the applicable standard of care. As a result, internists and family practitioners, whose disciplines largely overlap, often testify about the standard of care applicable to the other and doctors often testify to the standard of care applicable to nurses.

Generally, the sources for expert witnesses are as follows:

1. Other Colleagues. Other members of the bar are often the most reliable resource for referrals to medical and other types of experts.
2. Reports of Similar Cases. Lewis Laska's Medical Malpractice Verdicts, Settlements & Experts is a particularly useful reporting service. It is a monthly listing of significant verdicts and settlements with a description of the key facts, the counsel involved, and the experts for each case. By calling counsel listed in a report, one can find out how an expert held up at deposition and trial and important information about medical and legal issues.
3. Medical Literature. An on-line search of the Medline database should be performed in all but the most straight-forward of cases. The search will identify relevant medical articles that will often allow counsel to identify quickly the national medical authorities on the medical issues in question. The reported articles will also provide important background information.
4. Other Treating Physicians. As part of the initial evaluation of the case, counsel often will speak to subsequent treating physicians. Occasionally, one is willing to become involved as an expert.
5. Expert Finding Services. These are services that for a one-time fee will locate an expert in a specified discipline who is willing to review a case and, if deemed meritorious, testify.
6. Traditional Expert Services. These are services that have experts under retainer or contract who make them available for set fees. These services are often expensive and some require that all communications with an expert be arranged or mediated through their office, which can unduly interfere in the attorney-expert relationship. The expert's relationship with the service is also certain to be a subject of impeachment on cross-examination at trial.

Communication With The Expert

Practical tips for effective expert communication and preparation include:

1. To be safe, prepare everything to be provided to the expert, including correspondence, with the expectation that it will be discoverable. Avoid providing highlighted records, indexes, or other work product.
2. Explain to the expert, especially if new to this role, governing legal principles, especially the meaning of legal probability which is simply "more likely than not." All too often, medical experts interpret the terms "reasonable medical probability" and "reasonable medical certainty" to require proof more rigorous than the preponderance of the evidence standard.
3. Discuss any testimony of the expert in prior cases. Presume the opponent has it.
4. Elicit from the expert any embarrassing professional events, such as his own involvement as a defendant in a medical negligence case or in professional discipline.
5. Obtain and review all relevant publications authored by the expert. If the expert has co-authored articles with another physician, review other relevant articles by that physician. The expert at his deposition will be hard pressed to deny that this other physician is a recognized authority.
6. Err on the side of giving too much information to the expert. If counsel omits one item deemed relevant by the other side, the opponent is certain to raise it at trial.
7. Have the expert inspect all original evidence appropriate to the expert, such as radiology studies and pathology slides. Counsel must be very careful to instruct the witness not to alter original evidence in order to avoid spoliation problems.
8. Make sure the expert signs and understands any confidentiality agreement that governs discovery in the case.
9. Determine if the expert's office or hospital has policies or protocols that describe the proper performance of the procedure at issue to ensure there are no unwelcome surprises later in discovery.
10. Advise the expert to be careful in documenting his thoughts about the case as the other side will exploit any notes he makes to the full extent possible. The safest practice is for the expert to limit his notes to documenting facts in the medical chart and depositions and not to record any evaluative judgments about the quality of care. These mental impressions can be communicated to counsel orally.

The fate of a medical negligence case largely depends on the selection and preparation of the experts. In these complex and resource intensive cases, no other task is more important. The tips offered here, hopefully, will be of help to those who wish to venture into this challenging area.

Medical Law Developments

Fen-Phen Litigation

The Judicial Panel on Multi-District Litigation has ordered the consolidation for purposes of discovery of federal cases against the manufacturers of the diet medication fenfluramine-phentermine, commonly referred to as fen-phen. The cases are consolidated before U.S. District Judge Lewis C. Bechtle of the Federal Court for the Eastern District of Pennsylvania. Medications were recalled from the market last year as a result of widely publicized reports of valvular heart damage in patients. Patients have also been reported to suffer primary pulmonary hypertension, a potentially fatal cardiopulmonary disease, and in some cases brain damage due to toxic effects of the drugs.

Dow Corning Bankruptcy

Dow Corning Corp. presented a new reorganization plan, which proposes a $3 billion dollar fund to resolve breast implant claims and at one point a $1.4 billion claim for commercial creditors. The proposal, which has not been approved by the court provides for implant settlement payments ranging from $1,000 to $200,000, depending on medical claim criteria. Overall, the claim is not markedly different from its predecessor.