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By: M. Todd Ratay

Neil, Dymott, Frank, McFall & Trexler APLC

San Diego, CA

In a medical malpractice action, an expert witness is crucial to establish standard of care, causation and damages. Both sides retain experts to promote their perspectives. Therefore, medical issues often are reduced to a battle of the experts, in which the experts themselves become more compelling than the substance, reliability, or validity of their testimony. A good expert can captivate a jury, and clearly and concisely explain esoteric concepts in laymans terms. A bad expert can lose a jury in complex subject matter, or worse, alienate a jury from your client. This article explores many of the criteria and considerations for selecting a medical expert.

Of course, a paramount consideration is an experts credentials. Courts require all subjects not in the purview of common knowledge and experience be established by qualified expert testimony. Beyond the obvious considerations of ensuring an expert is qualified and experienced in cardiology or pulmonology, for example, consider whether the potential expert has any additional, quantifiable attributes to which a jury will be receptive. Has your expert done a fellowship in a related field? Is your expert board certified? These criteria establish additional qualifications and prestige to bolster an experts credibility to a jury.

Experience and Expertise
Experience and expertise is also essential. In evaluating a potential expert, consider whether or not your expert published or have they lectured or taught on the subject. Rightly or wrongly, a physician involved in education in the community lends considerable weight to a jurys perception of that physicians understanding of the standard of care required in that community. Nevertheless, nothing can replace practical experience. Evaluate what percentage of their practice is devoted to the subject matter of your suit. For example, 90% of a geriatric practitioners patients may be over 65 years-old, but she may only see a fraction of those patients in a nursing home setting. Therefore, her testimony concerning the standard of care for treatment in a nursing facility may not be as compelling as an opposing expert who exclusively sees patients in a nursing home.

Appearance and Communication
Whenever possible, speak to the physician in person before deciding to use them as an expert witness. No matter how articulate and amiable your expert may sound on the phone, it is important to consider what impact their physical appearance will have on a jury. Weigh the benefits of retaining an Einstein-type against someone who is perhaps more distinguished or approachable. Will their demeanor be well-received or condescending?

The most effective communicators often have the most experience before a jury. This can be a double-edged sword. Consider what percentage of your physicians income is derived from expert testimony. Does he advertise his services as an expert? How often does he testify for the plaintiff or defense? More specifically, how often is that expert employed by your firm? A jury can easily discount otherwise credible testimony if they suspect a hired-gun.

Professional Guidelines and Affirmations
Today, nearly every voluntary medical association releases guidelines in an effort to self-regulate expert testimony. These guidelines can bolster your experts credibility while simultaneously exposing the hired-gun on the other side. The American Medical Association (AMA), American College of Emergency Physicians (ACEP), American Society of General Surgeons (ASGS), and American College of Obstetricians and Gynecologists (ACOG), among others, have promulgated guidelines and affirmations to improve the quality and reliability of expert witness testimony. Many of these organizations even ask their members to sign and return oaths of affirmation which are kept on file and may be requested from the organization. These guidelines, available on the organizations websites, establish basic tenets of conduct, including a declaration the expert will not act as an advocate for one side over the other, not exclude relevant information in rendering his opinions, and a promise to qualify their opinions when necessary. Each organization also has canons specifically tailored to its discipline, all of which provide fertile grounds for impeachment in deposition and at trial.

Expert Fees
Even if costs are not a direct concern, your experts fees may carry hidden costs. In California, for example, a retained expert must be produced for deposition within 75 miles of the courthouse. (Cal. Code Civ. Proc. 2034.420). The noticing party only has to pay the expert a reasonable hourly rate for deposition time. This can be an important consideration as the cost of hiring an expert who is out-of-town can quickly add up. The party retaining that expert must pay the cost of travel to and from the deposition location.

Moreover, do not discount the impact your experts fees may have on a jury. The compensation and expenses paid or to be paid to an expert by a retaining party is a proper subject of inquiry as relevant to the credibility of the witness and the weight of his testimony. Therefore, consider how much your expert charges, and how his fee will be perceived. How much will he or she earn as an expert? Are your experts fees similar to the fees charged by the other side? Depending on the size of the case and the medical records involved, expert fees can add up quickly. Obviously, it is essential for your expert to review all records necessary for him to render his opinions. However, it is equally important to avoid any suggestion your experts opinions were bought.

Ultimately, though, an experts ability to break down medical concepts and communicate clearly and directly to your audience is the single most important quality of a witness. And communication skills are not a prerequisite for the practice of medicine. Consider your witnesss ability to explain complex physiological functions and esoteric procedures in laymans terms early on in your case. Then use their deposition as an opportunity to test their ability to convey these opinions and work with them, if necessary, to tighten up their responses to effectively articulate your position. No qualifications or experience can compensate for an expert who is unable to communicate clearly to a jury.

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