Advice for Attorneys
Anticipate the Opposing Counsel’s Case
Physicians know that any detail of one case, one patient, or one clinical condition can be viewed from multiple perspectives. By virtue of our education, training, and clinical experience, we can perceive the case before us in clear-cut terms. But there is always another side to consider. As an attorney working with expert witnesses, it is vital that you help your expert understand the other side of the case as well. By having your expert pretend to represent the other side of your case, you will help your expert refine their own position and enhance their ability to respond to questions and challenges from your opponent.
Few cases are open and shut, and the opposite side will most often make legitimate points. It is important for experts to recognize those points honestly, and to incorporate them into their own understanding of the matter at hand.
A case in point is the very common: “exacerbation of a pre-existing condition.” As an example: a middle-aged man with mild degenerative cervical disc disease (documented by pre-injury cervical spine MRI scan) is involved in a motor vehicle crash in which he suffered a whiplash neck injury. His pre-existing neck pain and limited range of motion were exacerbated by the injury and he had post-injury radicular neck pain, a new symptom. No one disputes that he had a cervical spine injury, but counsel for the defense, the insurance company, will argue that his pre-existing condition was the primary reason for his neck symptoms following the accident. In their view, because of pre-existing disc disease, he was a set-up to suffer neck pain and disc trauma following a flexion-extension neck injury. And, since DJD of the spine is generally progressive; they will argue that he would have naturally gotten worse, with or without the accident.
In anticipation of this line of questioning, your expert could review the literature about the high prevalence of DJD of the cervical spine in this age group; most of which is either mildly symptomatic or totally asymptomatic. Having thus dispensed with the seriousness of the plaintiff’s preceding diagnosis, she should concentrate on the new symptoms following the injury: He had new radicular pain, which indicates nerve root compression or irritation as a direct result of the trauma. The fact that he had neuroimaging signs of what is a natural aging process, is immaterial in affecting his current post-injury neurological status. Trauma to cervical nerve roots can result in motor weakness or sensory loss of the arms and hands; can be heralded by radicular pain; and may in fact become permanent, causing functional disability of the upper limb or limbs.
Make Sure Your Expert Sticks to Their Area of Specialized Knowledge and Expertise
It may seem clear to your expert that a given case has a pre-defined conclusion, and she may feel deeply about the validity of that conclusion. But, for example, if the facts of the case at hand include toxicology results, and your expert is not versed in toxicology or pharmacology, make sure they stick to what they know well and can support. In this case, your physician would advise you to retain the opinion of an expert in the required field. If one of your experts strays from their specialty, it will be easy for lawyers on the other side to undermine them on the stand.
Conflicts of Interest Are Often Subtle and Pervasive
Thanks to the Internet, attorneys now have access to information about experts and their practice – even their finances can be uncovered. It is vital that attorneys question their experts about any personal, professional or financial interest they have now, or have had in the past, that could be perceived as a conflict of interest in the case in question.
Previous lawsuits are public domain. Let’s say, for example, that many years ago your expert was sued for not requesting an MRI brain scan for a patient with a longstanding headache, who later turned out to have a meningioma requiring surgical resection. The case was settled out of court because there were no “red flags” in the patient’s history or physical exam that would have made obtaining neuroimaging appropriate. Now, you have asked that same physician to be an expert in a case involving a motor vehicle crash, in which a patient sustained a subdural hematoma. In this latest case, the emergency room did not order a scan until the hematoma had expanded and produced hemiparesis. Opposing counsel might bring up the past lawsuit against your expert. They may claim that your expert would “of course state that a scan should have been ordered earlier” because he or she has been influenced by their prior, personal experience.
As another example: an expert has been asked to testify on behalf of a patient who was not given an anti-depressant for clinical signs of depression, and went on to commit suicide. However, the expert owns stock in a pharmaceutical company that makes an SSRI. Opposing counsel could potentially bring this up to undermine the expert’s opinion, stating that she might have a bias to prescribe a specific drug because she will benefit from that prescription personally. Again, this expert may still be the best expert for the case, but you need to be sure that they are not withholding any potential conflicts from your team.
Advice for Your Expert
Accept Cases for Both Defendant and Plaintiff
As an expert, one should only participate in cases in which one can testify with integrity. For some cases, this will be for the plaintiff, while for others it will be for the defendant. Medico-legal professionalism is a complex ethical responsibility. If we as physicians are asked to be an expert in a case for which, after review of the records, we cannot advocate honestly for the patient or the hospital, or the insurance company, or whomever, we—and you as an attorney–will sleep better if we turn it down.
Prepare Your Expert
Be sure your expert knows that he or she may be asked about prior legal, deposition or trial experiences. She should have ready answers for the following questions:
- “For how many cases have you previously been deposed, or testified?”
- “How many were for the plaintiff, how many for the defense?”
You may wish to reconsider an expert for whom the vast majority of her cases are for plaintiff or for defense. True or not, having been heavily weighted to one side or another in the past may strike a jury or judge as fitting a pattern, and swaying an expert’s opinion.
Your expert may be asked what percentage of his or her time is spent in medical-legal work; and in daily clinical practice. It is my belief that jurors are more respectful of a physician whose career is primarily based upon actively caring for patients; she will appear less likely to be biased, or financially motivated.
Your expert can also be expected to be asked how much money she is making per hour for her medical record review or testimony. Her response, even if she feels somewhat sheepish about this, should be handled with confidence. Many dollars and hours and sleepless nights went into earning the qualifications needed to be an expert medical witness; this is something to be proud of; a reflection of extensive training.
It may behoove you to bring up the expert’s dollar rate yourself first, to the judge or jury; to get it out of the way, and dilute the impact of this line of questioning before opposing counsel addresses it.
