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Medical-legal consulting pearls from an experienced expert witness
Editors Note: Bruce David Janiak, MD, FACEP, FAAP, vice chairman and professor of emergency medicine at the Medical College of Georgia in Augusta has been involved in medical-legal consulting for nearly 30 years. He also holds the distinction of being the very first emergency medicine residency graduate in the world.
Executive Editor: Dr. Janiak, how and when did you get started doing medical-legal reviews?
Dr. Janiak: I began reviewing medical legal cases in the mid-to-late 1970s when asked by a local attorney. Since then I have reviewed about 900 files, some for insurance companies, but most for attorneys on both sides. After 30 years, I have learned a lot (often by making a mistake).
Executive Editor: You remain very active as a clinician and teacher of emergency medicine residents. How has this medical-legal work affected your clinical practice?
Dr. Janiak: There is no doubt that my practice of emergency medicine has improved by learning from the errors of others. Furthermore, being part of a residency program allows me to share some of the things I have learned as a result of being an expert witness.
Executive Editor: What advice do you have for the physician who has decided to become an expert witness? How does a physician interested in medical-legal work get started?
Dr. Janiak: The process will usually begin with a phone call or letter, asking if you would be interested in reviewing a case. In most cases, it will be obvious as to whether the attorney is representing a doctor or a patient. When first accepting a case, ask for the names of the doctors and/or hospitals involved so that you can determine if you have a conflict of interest. There is no use spending a lot of your time reading only to find out that the defendant physician is an old friend of yours. If so, you have a conflict of interest that must be disclosed. If you have to turn down the review, it helps to offer the name of another qualified expert to the requesting attorney. He or she will especially appreciate your willingness to refer.
Executive Editor: What generally happens next?
Dr. Janiak: Attorneys will often send the medical records along with a summary of the case. I recommend that you do not read the summary. At discovery you will be asked to bring all documents to your deposition. Be prepared to respond when asked, "Did you rely on your attorney's summary to formulate your opinions"? I prefer to answer that I did not read the summary, but relied on my own interpretation of the materials provided. The jury may appreciate that your opinions are your own and were formulated from your own objective, independent review.
Executive Editor: What other steps do you take to try and remain objective?
Dr. Janiak: Try to review all of the emergency records before you know the outcome of the case. Initial contact with an attorney is usually by telephone and he or she will want to outline the case for you. I suggest that you politely ask if they would just send the records to allow you to remain as objective as possible. You are trying to ascertain if the standard of care was met. This is a task that can be accomplished with objectivity if you are blinded to the outcome. You, of course, will be aware that something bad happened and it makes the review process all the more interesting to try and anticipate the final diagnosis.
Executive Editor: When you are participating in a deposition, how should an expert witness interact with the opposing lawyer?
Dr. Janiak: During depositions answer only what is asked. Sparring with attorneys can be a game of words and you can potentially compromise your position by waxing poetic. The emergency physician sitting at home answers the telephone: "Is Tina (your daughter) there?" "Of course," you say. "She will be right with you." In contrast, an attorney gets the same telephone call, responds "yes," and then hangs up the telephone. He answers the question that was asked and not the question that was implied. I have read many depositions of both defendants and experts who inadvertently open up a new line of inquiry by saying too much. The deposition is prolonged needlessly and potentially embarrassing issues can be brought to light. This is especially important if you happen to be a defendant. Answer most "yes or no" questions with a "yes" or "no." Rambling on in a defensive mode will only open the door to more questions. Your attorney will allow you a chance to explain your answers on cross-examination.
Executive Editor: What are some of the fine points of differentiating yourself from the opposing attorney's expert witness? We can assume your trial testimony will be honest and truthful, that's a given. So, how will the jury differentiate your believable testimony from your opponent's?
Dr. Janiak: You must, of course, know and be an expert on the topic you are being asked to opine over. However, you also must pay attention to dress, personal demeanor, tone of voice, clarity, and firmness of your statements. Look each juror in the eye while speaking. Never allow yourself to get flustered when the opposing attorney challenges your statements. If necessary, take media training. On the other hand, if you still feel nervous about speaking in public, perhaps this kind of work is not for you.
Executive Editor: After doing this for almost 30 years, don't you worry that something you said previously or a case you defended years ago will contradict a current opinion?
Dr. Janiak: That is a very real possibility. During a trial the opposing attorney may say, "Dr. Janiak, do you remember the deposition in the Billings case you gave 15 years ago and what you said on page 53?" He may quote a paragraph that seems to impeach your current testimony. Your best bet in this situation is to ask to read the document. You will most likely find that you have been quoted out of context and can explain that to the jury. If, on the other hand, you have not been quoted out of context, you will learn the importance of consistency. Over time be consistent. Although there is no need to remember details, you must be consistent on major opinions. For example, if you stated 10 years ago that an emergency physician has a right to rely on a radiologist's reading, then stick with that opinion. Also, when rendering opinions, be sure you will be comfortable with a similar approach in future cases. And, in an individual case, be sure that your opinion letter (if written), your deposition testimony, and your trial testimony are all on the same track and consistent.
Executive Editor: What if you are asked for an opinion outside of your area of expertise?
Dr. Janiak: Always try to stay within your area of expertise. If you must opine outside the realm of emergency medicine, be very general. For example, you might say, "I believe the plaintiff's life span was shortened by the deviation from the standard of care by the doctor." It would be foolish to state that "Mrs. Smith would have lived another seventeen years." If you have no opinion about an issue, say that. You don't have to be knowledgeable about everything.
Executive Editor: How do you handle the situation when there has been a deviation from the standard of care, but there is no apparent causation?
Dr. Janiak: That happens. When there is no apparent link between the deviation and the outcome, don't hesitate to let your attorney know your opinion. In these cases, a plaintiff's attorney may want you to testify only about the deviation. Conversely, a defense attorney may want you to testify that there was indeed a deviation, but said deviation did not affect the outcome.
Executive Editor: How do you prepare for depositions or trials when there are reams of records and depositions to review?
Dr. Janiak: When preparing for depositions or trials, I focus on relevant names and time sequences. Not only will this shorten your time on the stand, but you will also become more confident in your overview of the case. By the way, remember that all your documents and notes are part of the case. Don't scribble anything on the deposition margins or notepaper you do not want to be questioned about.
Executive Editor: What are some common questions asked by attorneys during depositions and how do you answer them?
Dr. Janiak: During a deposition, an attorney may ask you which publications or texts you consider to be "authoritative." Admitting that any document is "authoritative" will allow the attorney to quote a sentence from the document that appears to be contrary to your opinion. I suggest that your answer be more realistic. It is more reasonable to respond that you agree with some parts of some documents, but you cannot give a blanket affirmation that the whole of any text is "authoritative."
Another common question an attorney may ask you is "Isn't it the job of an emergency physician to formulate a differential diagnosis?" I think it is appropriate to agree, but I also state that it is not necessary that the differential be in writing. A mental differential is appropriate. If you agree to the formulation of a differential diagnosis, then the next question will involve the "ruling out" of those items in the differential that are "life threatening." I prefer to answer that our obligation as emergency physicians is to rule out those diagnoses that are both life-threatening and have a reasonable chance of being the cause of the patient's complaints based on the history and physical and any tests results that are available. Remember, attorneys are more absolute than we are.
Executive Editor: How do you handle the question about your "exorbitant hourly charges?"
Dr. Janiak: Remember that you charge for your time, not your opinion. Be honest about your charges. The jury understands that this is an expensive process and will not be shocked by your hourly rate. Of course, it needs to be within a reasonable range.
Executive Editor: Are there any other pearls of medical-legal consulting that you can share with our readers?
Dr. Janiak: Sure, it is extremely important that you never answer a question you do not understand. Always ask for clarification. Take your time and consider your answer. Finally, if it is appropriate, don't be afraid to show you are human by adding a little tasteful humor. Smiling is also allowed.