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How can expert witnesses make or break a lawsuit?
Involve experts early in the process
The credibility of "dueling experts" testifying before a jury often determines the outcome of a lawsuit alleging malpractice by an emergency physician, but in fact, expert witnesses typically get involved weeks before a case is even filed.
"Some savvy providers will hire an expert to review a chart as soon as a request for the medical record comes from a plaintiff attorney," says Christy Tosh Crider, a shareholder at Nashville, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz. "That way, if clear liability exists, quick steps can be taken to resolve the matter before it turns into nasty litigation."
It is always a good idea to know more than the opposition does, says Crider, and if you can clearly show no liability, early retention of experts can help convince the opposing attorney that there is no case worth pursuing.
A plaintiff usually hires an expert to review the ED chart to determine if they should file a lawsuitin other words, to see if the chart indicates negligence on behalf of the hospital or healthcare providers, says Linda M. Stimmel, a partner with the Dallas, TX-based law firm of Stewart Stimmel.
On the defense side, the attorney representing the ED may hire an expert to review a chart even in the "claim" stage, when an actual lawsuit has not yet been filed with the court.
In a growing number of states, in fact, plaintiffs are under strict procedural guidelines to engage experts early on in the caseas early as the first 120 daysto show the court that the case is not frivolous.
"These pressures have led many plaintiffs' lawyers to do their homework long before even filing the lawsuit," says Chris DeMeo, a member at McGlinchey Stafford, PLLC, in Houston, TX. "More often than not, in big cases, the plaintiff's attorney will have worked on the case with experts months in advance."
While the defense does not typically have the same procedural pressures, and in many cases, may not even know of the claim until suit is filed, DeMeo says that it is still important to involve experts early.
For purposes of the lawsuit, the court may enter an order setting deadlines for the defendant to disclose expert witnesses. In the absence of an order, the rules of procedure will dictate when to identify expert witnesses, or in some cases, the parties can agree on a designation schedule.
"These deadlines, however, should be not be used for overall case management. Expert involvement should begin much sooner," says DeMeo. "Experts should be involved as early as the medical facts are known and understood, so as to begin development of the defense theory."
It is possible for the ED's attorney to provide an opinion by their own expert to try to convince the plaintiff to drop the claim. This is fairly unusual, however, says Stimmel, "because most of the time, the plaintiff already believes they have a case. The danger may be to 'show your hand' early."
"The advantage of being a defendant is that the plaintiff has to go first and show you their theories of negligence," says Stimmel. "This helps a defendant find the right expert and provide a stronger defense."
As for the ED physician using their own experts to get a plaintiff to drop a weak case early on in the process, DeMeo says "this can and does happen."
The most typical cases are those with a clearcut medical defense to causation based on the timing of the presentation to the ED. "In those instances, a credible, published expert who can explain why the condition was fatal or would have otherwise caused the injury at the time the patient arrived in the ED regardless of the care provided, can have claim dispositive effects," says DeMeo.
DeMeo notes that this is particularly true in states that do not recognize a "Loss of Chance" cause of action, meaning if the defendant was not more than 50% responsible for the injury, there is no liability.
"This happens much less frequently on standard of care issues, because the dispute is over whether the defendant provided reasonable care. This is usually more a matter of opinion," says DeMeo.
Who can be an "expert"?
Statutes and case law vary from state to state on the requirements for experts in medical malpractice cases. Most states, however, says Crider, require the expert to be qualified in the specialty of the defendant doctor.
In addition, some states have a "locality rule" which requires the physician expert to be licensed in the state or a contiguous state and to be familiar with the standard of care in the locality.
"In other words, an ED physician in a rural hospital might not be expected to follow the same course of action as a physician in a large metropolitan hospital with different resources available," says Crider. Experts can be excluded for failure to comply with the standard in the locality.
Attacking the credentials and qualifications of experts "is done often in cases," says Stimmel. "If the plaintiff's expert has no or minimal experience in an ED, we would argue they were not qualified."
However, the plaintiff may argue that their expert is qualified in the examination and diagnosis of patients, leaving it up to the judge to decide.
An expert witness must be sufficiently qualified in emergency medicine to offer testimony against the defendant-physician, says Joseph J. Feltes, a partner with Canton, OH-based Buckingham, Doolittle & Burroughs. "This may involve experience working in an ED or extensive work with ED physicians."
Furthermore, if the claim involves a particular procedure or the administration of particular medication, the expert must have sufficient experience with that procedure or medication. "If an expert offers testimony that goes beyond his area of expertise, his testimony will usually be stricken," says Feltes.
DeMeo says that it is not at all unusual for a plaintiff to rely on a physician who does not practice emergency medicine. "The defense response is a matter of degree," he says.
DeMeo says that in every case, the non-emergency medicine expert's credibility can and should be attacked for purposes of diminishing the impact of his/her opinion for a jury.
"The experts may try to bolster their credibility by explaining they "take call" in the ED," says DeMeo. "These claims should be scrutinized carefully to see exactly how much real experience the witness has."
In extreme cases, lack of credibility can result in the expert being stricken by the court. "Unfortunately for ED physicians, the deliberately broad-based nature of their specialty usually prevents these extreme situations," says DeMeo.
Most courts will analyze the issue from the perspective of the patient's condition, more than the setting of care. "Thus, if the expert is qualified with respect to the patient's condition, then he or she will be allowed to testify," says DeMeo.
For example, a cardiologist may be able to testify in a heart attack or aortic aneurysm case, an orthopedic surgeon or neurosurgeon may be able to testify in a trauma case, or an infectious disease physician may be able to testify in a sepsis case.
When this occurs, however, there are ways to use these specialized backgrounds against the expert. DeMeo explains that the highly specialized nature of a non-emergency medicine expert's practice can be used to paint them as an "armchair quarterback" relying on subtle signs and symptoms which may or may not have been pertinent to the patient's stabilization during the encounter.
"This argument is helped by explaining the nature of emergency medicine as often the beginning, not the end, of the medical care, as well as by good consults and discharge instructions by the ED physician," says DeMeo. "Many times, such experts are office-based with scheduled appointments. As such, the exigencies of the emergency setting can be used to show the expert is being hyper-technical or hyper-critical."
If the care at issue occurred in a high-level trauma center, that care setting may also impact the credibility of emergency medicine experts who may not deal with the same volume or acuity.
Interestingly, however, in some cases it may actually be to the advantage of an ED defendant to have an expert against them that is not experienced in the ED.
"We know the primary focus of an ED is very different from an examination done in another environment," explains Stimmel. "We may want a 'weak' expert against us if we have a strong, ED experienced expert on our side. We could argue at trial that the plaintiff's expert's opinions are weakened, since they have no hands-on experience in an ED."
An expert isn't allowed to use 20/20 hindsight when reviewing an ED patient's care--he or she must put themselves in the shoes of the physician, and determine whether the physician acted properly based on the knowledge the physician had at the time.
"Plaintiff experts often attempt to avoid this by looking solely at the outcome and the results of later tests in testifying that an ED physician should have diagnosed a particular condition," says Feltes.
It's also important to note, says Feltes, that the standard of care is not what a particular expert would do in a given situation, but instead what a reasonable physician would do in like circumstances.
Some experts will testify as to what they would have done in a particular situation, instead of what the standard of care requires.
"Given the many different potential methods of treatment available for ED patients, a plaintiff must prove that the treatment prescribed was below the standard of care, not simply that the patient's expert would have done it another way," says Feltes.
In many cases, the physicians and other healthcare professionals sued or otherwise involved in the case can qualify as experts. "This has benefits for the defense, because the lawyer can learn the medicine directly from the client without having to engage outside consultants," says DeMeo.
The downside, of course, is that the client's personal involvement in the case can shade his or her perspective on issues like standard of care.
"This is particularly true with respect to jury perception. A typical juror will expect a physician defendant to deny negligence even in questionable cases," says DeMeo. "Nevertheless, the client-healthcare provider is always one of the most important experts in the case."
For more information, contact:
Christy Tosh Crider, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN. Phone: (615) 726-5608. E-mail: email@example.com.
Chris DeMeo, McGlinchey Stafford, PLLC, Houston, TX. Phone: (713) 335-2132. E-mail: firstname.lastname@example.org
Joseph J. Feltes, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. E-mail: JFeltes@BDBLAW.com.
Emory Petrack, MD, FAAP, FACEP, Petrack Consulting, Inc., Shaker Heights, OH. Phone: (216) 371-8755. E-mail: email@example.com. Web: http://www.petrackconsulting.com or http://www.PediatricEmergencyExpert.com.
Linda M. Stimmel, Stewart Stimmel, Dallas, TX. Telephone: (214) 752-2648. E-mail: firstname.lastname@example.org