The malpractice suit: Why expert witness selection is crucial

In this column, I will discuss expert witnesses and preparing for trial in a medical malpractice case.

Brianne Goodwin, RNIn my previous column (“You’ve been sued for malpractice: What happens next"), I provided a brief overview of the anatomy of the malpractice lawsuit. In this column, I will discuss expert witnesses and preparing for trial in a medical malpractice case.

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Expert testimony is almost always necessary in a malpractice case, and the importance of selecting an appropriate expert cannot be understated. According to an article in a leading orthopedics journal: “In professional negligence cases, such as medical malpractice lawsuits filed against physicians, the specific duty owed by the physician to the patient is defined by the profession itself. A member of the profession is needed to tell the judge and jury what the defending physician should have done or not done under the particular circumstances, and whether such conduct constituted negligence by violating the standards of care of the profession” (Clin Orthop Relat Res 2009; 467:339-47).

Much like the stream on a uroflow, expert witnesses can be either weak or strong. If a proper expert is not known to the attorney, he or she should spend some time vetting individual physicians. This might include:

researching their education, including any fellowships performed

establishing board certification in the relevant field

reviewing publications and book chapters

comparing his or her level of expertise to that of the client

determining if any state has disciplined him or her

investigating how many times he or she has served as an expert witness.

Next: "It should be stressed that the prominence alone of a particular physician does not necessarily make him or her the best expert witness for your case."

It should be stressed that the prominence alone of a particular physician does not necessarily make him or her the best expert witness for your case. For example, the literature demonstrates that the debate over partial versus radical nephrectomy for certain renal tumors continues to thrive. If a physician is sued for alleged malpractice stemming from a radical nephrectomy, the defense attorney would be keen to avoid any urology expert who unequivocally feels that a partial nephrectomy is superior to a radical.

Read: Partial nephrectomy results in bowel injury, lawsuit

Any skilled plaintiff’s attorney will be able to elicit this opinion as a weakness on cross-examination, likely compromising the expert’s credibility before the judge and jury. Furthermore, this individual would lack the requisite impartiality to serve as an expert witness, as set forth in the AUA policy statement regarding expert witness testimony.

Knowledge of potential jury pool vital

Another important consideration with regard to expert witnesses is that the attorney know the characteristics of the potential jury pool. Is the jury likely to be more or less educated? Just as the urologist in the office will tailor education differently to a patient with a high school degree than to a fellow health care provider, the expert witness must do the same to effectively reach and meaningfully communicate with the jury. This may require careful and detailed coaching by an attorney at times.

Preparing for trial can be arduous but is important for success at trial. As the defendant physician, you should know your deposition testimony, the medical facts of the case, and the medical literature on both sides of the pertinent issues as well as possible. It is likely that the plaintiff’s attorney will try and undermine your credibility using either your deposition, the medical chart, or some claim within the literature, so a lack of knowledge in one or more of these areas could make for a challenging cross-examination.

A simple example of this:

Q: Doctor, is it true that part of the standard of care in medicine is good documentation?

A: Yes.

Q: Doctor, is it also true that you failed to document the informed consent process as it relates to the plaintiff’s March 2, 2014 robotic prostatectomy?

Assuming documentation of the informed consent process is at issue in the case, how you answer this question is important, as it will either support what was stated during the deposition or it will contradict it.

Also see: Extracapsular prostate cancer leads patient to sue

A contradiction will likely lead to the plaintiff’s attorney showing your deposition testimony as an exhibit (in blown-up format) to the jury and attempts to impeach your credibility on the witness stand. Even if documentation is a weakness in the case, it is best to support your deposition testimony so that the jury views you as credible and truthful. Weaknesses can often be clarified and supplemented at trial with information that was not elicited at the deposition (Brenner IR. “How to Survive a Medical Malpractice Lawsuit: The Physician’s Roadmap for Success.” Wiley-Blackwell, 2010).

Next: Mock cross-examination can be helpful

Mock cross-examination can be helpful

Mock cross-examination by your own attorney may be a helpful tactic to simulate what will happen in the courtroom. This is a good strategy to gauge your ability to answer difficult questions and maintain composure at challenging times. It is also helpful for building your own confidence and oral advocacy skills.

Do you remember DRIP-a mnemonic representing general causes of incontinence: Delirium, Retention, Inflammation/Infection, and Polyuria? It can quickly be converted into a legal mnemonic summarizing the following important factors in trial preparation:

Designate proper expert

Review (and master) transcripts, facts, and literature

Increase confidence through mock questioning,

Professional presentation at trial.

There is no sugarcoating the fact the preparation for trial is a formidable and stressful period for any physician. Hopefully, the tips and examples provided here demonstrate the legal strategy behind selecting an expert for the case and show why it is necessary to resort back to medical school tactics for memorizing case facts and deposition testimony.