Preparing a medical expert witness for ad hominem attacks, dumbing down pathophysiology, and more is preparing to win
Let me begin with a personal example of the importance of an expert witness.
A patient’s family sued me in a medical malpractice case for delay in treating a highly malignant bladder cancer. The patient had a recent heart attack and had a penile implant that would be removed during the surgical removal of his bladder. The patient had a younger wife and was against any surgery that would harm his implant. I suggested a consult for chemotherapy and possible radiation therapy.
The patient died 13 months after diagnosis of metastatic bladder cancer, and the family filed a lawsuit on his behalf. The expert for the plaintiff was a pathologist who did not treat patients and never had one with a case of small-cell carcinoma of the bladder. My attorney, on cross-examination, convinced the jury that the pathologist could not determine the standard of care for a urologist.
My medical expert witness was a urologic oncologist who indicated that my management was appropriate and that small-cell bladder carcinoma was a lethal disease. The jury collaborated for less than 15 minutes and unanimously determined that there was no evidence of a breach of the standard of care.
My experience shows the importance of having an excellent expert witness who was very convincing to a jury. Preparing your expert witness for trial or deposition is of paramount importance, particularly if the medical expert is out of his or her comfort zone in a courtroom. The attorney must be sensitive to this to best prepare a medical expert witness for a successful case.
The first step in building a good relationship is to respect the person’s time. Yes, doctors are notorious for being late to see patients, but forget that. You be on time, every time.
Following are my 10 top suggestions for preparing your medical expert witness.
Know how to dumb it down on testimony
You want the doctor or expert to be able to demonstrate to the judge and jury complicated pathophysiological explanations that support their opinion. But the expert must “dumb it down” and avoid medical jargon that might confuse the judge and jury. If the expert is to use a medical term, the expert must define the term in language that a layperson would understand.
Doctors are comfortable speaking in front of their colleagues. They use sophisticated drawings and slides to convey their message. That same approach would not apply in the courtroom. The attorney might explain to the doctor that their discussion would be like a discussion with a patient. Using a layperson’s language is far more effective and convincing than Greek and Latin words common in technical medical discussions.
The American Medical Association (AMA) offers helpful guidelines for medical testimony.
Prepare for ad hominem attacks on your medical expert witness
The attorney must prepare the expert for an ad hominem attack often used by opposing attorneys. Attacking the doctor’s character, background, or judgment may irritate the doctor and make her or him defensive, particularly if the doctor has minimal courtroom experience. This is the opposing attorney’s objective, so prepare your witness to expect attacks like the following.
“Doctor, it’s hard to take your claims seriously because you have never treated my client and have never treated any other patient with this condition. Isn’t that right, Dr. Expert?”
If the doctor has never treated a patient with the plaintiff’s problem, the defendant’s attorney must prepare the expert with an answer to this ad hominem attack. A response might be, “No, I did not examine or treat this patient. However, I am familiar with the condition, and based on my training and expertise, I feel I am qualified to render an expert opinion.”
Another example: “Dr. Expert, you are retired from medicine, isn’t that correct? You haven’t treated any patients in the last 10 years. How is it possible that you can give an expert opinion when you haven’t treated any patients for several years?”
A prepared response might be: “I have successfully treated hundreds of patients with this condition. I have extensive experience with the management of patients with this condition, which hasn’t changed in the years since I practiced. I feel very comfortable providing an expert opinion on the management of this case.”
Anticipate questions about expert witness fees
During cross-examination, opposing counsel commonly asks the expert about their fees as a witness. Physician experts have nothing to be ashamed of regarding fees for serving as expert witnesses. The attorney must be confident that the physician is comfortable disclosing these fees.
For example, if I was asked about my fees, which are $5,000 for a trial, I would explain that I would have to travel the day before the trial and the day after. The trial may have me out of my office for several days. And my witness fee is the same as I would make seeing patients during that time. I have reframed the question and provided an explanation that would be understandable to the judge and jury.
Medical expert witnesses can be compensated for their testimony but should still remain impartial. This is an ethics encouragement by the AMA and is part of the association’s advice on expert witness testimony.
Previous litigation outcomes
Prepare the expert to be honest and transparent about previous personal litigation he or she has been involved in and the outcomes of those litigations. The opposing counsel will undoubtedly ask about the expert’s litigation experience. Your expert must honestly disclose their previous litigation experience, such as being involved in a lawsuit and what the outcome of the lawsuit was.
Most physicians today will face one or more lawsuits during their careers. This answer can be reframed that you have been in practice for X number years and have only experienced X lawsuits, which have been dropped when the panel of peers evaluated the case and found no merit. The expert has been forthright and has put into perspective the answer regarding previous litigation.
Use visuals to explain medical pathophysiology
Encourage the expert to use visuals to explain the pathophysiology of the condition suffered by the plaintiff. Attorneys can avoid the expense of a medical illustrator to make drawings illustrating a medical condition if the expert uses simple props that will do the same thing.
For example, if I want to explain the causes of erectile dysfunction (impotence), I’ll have an 8 x 10 drawing that shows an air compressor filling a tire with air. Another drawing will show that the air compressor is not plugged in, so the air compressor will not work. This drawing demonstrates a neurologic problem where the nerves to the penis are injured, and the message from the brain does not reach the blood vessels in the penis to open up and allow an erection to occur.
In that instance, I asked the judge if I could approach the jury to explain the condition. I have found inexpensive methods like this of demonstrating a medical situation very effective. Also, this connects me with the jury and makes my testimony of the medical condition easy for the jury to understand.
Be ready to defend past medical journal publications
If the expert has written articles or book chapters, they must be prepared to defend what they have written or if there is a conflict between their opinion and their printed word. For example, I was an expert defending a doctor who failed to diagnose prostate cancer by screening with annual PSA (prostate-specific antigen) testing. In a previous article I wrote for a peer-review medical journal on the diagnosis of prostate cancer, I mentioned the importance of PSA screening.
The plaintiff’s attorney had reviewed my article. The attorney had a copy of my paper and gave it to me to read the highlighted areas of my comment on the annual PSA screening. Since this was one of the main issues in the case, I had reviewed my writings on the subject and prepared an answer that reframed the question. I mentioned that my article was written nearly 15 years earlier. When the defendant’s physician saw the plaintiff, the standard of care was for the patient and the doctor to discuss the concept of screening. It was no longer necessary to perform the screening, just that a decision needed to be made in each patient’s situation through a doctor/patient discussion on whether screening was applicable.
Brainstorm direct examination topics
The attorney might suggest that the expert write down the main points to make that support the expert’s opinion. Meet with the expert and tell him or her what questions you think the other attorney will ask. Discuss any holes in the case and craft answers to fill those holes. Lay out the order of the questions, which includes medical background, training, familiarity with the case, and, most importantly, the response regarding the expert’s opinion.
Even for seasoned experts who have participated in trials and depositions, this would be time well spent by the attorney to have the expert prepared for the direct examination. The attorney will suggest that an expert review the deposition and consider bringing a copy of the deposition to the trial. Again, any important areas of the deposition should be flagged in case the opposing attorney wants to discuss any comments made during the deposition.
Prepare for cross-examination
Prepare the expert for cross-examination and provide anticipated questions the opposing attorney will ask. The attorney probably knows what questions the opposing council will ask.
The trial preparation should include reviewing anticipated questions and listening to your witness’ responses. Any weakness in the case should be discussed, and the responses of the expert should be addressed.
List your medical expert witness’ previous involvement in cases
Have your expert prepare a list of cases where they have served as an expert witness over the previous four years in federal and state courts. This list should include several cases that the expert has taken part in and the number of cases that went to trial. The expert needs to list what cases were for the defense and what were on the plaintiff’s behalf. The opposing council will likely have reviewed the expert witness’ previous trial experience and know this. Also, include the list of the firm(s) that hired the experts. You don’t want surprises or find something to impeach your expert.
Be ready to easily present patient medical records
If the medical expert has paper records of their patient examination that will be used in testimony, the attorney should review the chart, and any attorney-client information should be purged. To find specific areas important in revealing the story, I suggest using Post-it notes that identify the first encounter with the patient, the physical exam, dates of subsequent visits in chronological order, appropriate lab tests, imaging studies, and any surgical procedures incurred by the patient.
This preparation avoids the boring delay of the expert searching for this information, especially in a large medical record. If the record is electronically created, tell your witness what areas should be printed and brought to the trial or deposition.
A note on attorney-client privilege
Your medical expert needs to understand that there is no attorney-client privilege between the patient and the doctor in a personal injury case. In the situation of a personal injury case, the attorney-client privilege is waived, and any advice that the doctor gives his patient is discoverable.
However, any draft reports from the medical expert to the retaining attorney are usually protected from discovery. The attorney requesting the medical expert’s services must inform the doctor prior to their testimony what work product between the attorney and the doctor to include or exclude from the record.
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