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Using Expert Witnesses in Medical Malpractice Cases

Written by Berkowitz

medical malpractice

Expert witnesses are used in medical malpractice cases to prove (i) the standard of care that the healthcare provider should have followed and (ii) deviation from that standard of care by the healthcare provider. Of course, if the expert witness is called by the defendant, he will testify that the defendant did not breach the standard of care.

Elements of a Medical Malpractice Claim

To win a medical malpractice claim, you must prove the following four legal elements of a claim:

  1. The defendant healthcare provider owed a certain duty of care to the plaintiff (this is normally the person filing the lawsuit);
  2. The defendant failed to meet the applicable standard of care;
  3. The plaintiff suffered harm; and
  4. The harm suffered by the plaintiff was directly caused by the defendant’s failure to meet the applicable standard of care.

Expert medical witnesses are typically used to prove elements 1) and 2).

Professional Witnesses and Conflicts of Interest

If you have a medical malpractice claim, you might find it difficult to recruit a local colleague of the defendant to testify against him, even if he is sympathetic to your claim. For this reason, most expert witnesses used in medical malpractice lawsuits are paid professional witnesses, some of whom practice medicine only part-time.

Of course, the use of a paid professional witness to support your claim raises questions of conflict of interest – after all, the witness would stand to lose money if he sided with the defendant, because you certainly would not use him as a witness if he did. And, of course, the defendant’s lawyer would be incompetent if he didn’t bring this fact to the jury’s attention.

Nevertheless, the use of paid professional witnesses is routine in medical malpractice lawsuits. You might also want to consider that the defendant may call expert medical witnesses of his own, raising conflict of interest concerns for the defense as well.

The Educational Function of Expert Witnesses

Medical malpractice claims are typically complex. Add to this complexity the fact that the average juror knows little about medicine, and you have a recipe for confusion. Even the judge, who may have tried medical malpractice cases before, might be unfamiliar with the issues at stake in a given case. Once the judge and the jury are confused, it is easy for the defense lawyer to use the confusion to assert that the plaintiff has failed to prove his case.

An effective expert witness is not only the master of his field but an expert communicator as well. It is up to the witness to clarify the issues at stake in a manner that the court will understand, and to weave the relevant facts into a narrative that supports the defense’s point of view. Of course, expert witnesses called by the defense can help to further clarify exactly where the issues in contention lie.

Peculiarities of Medical Malpractice Law in Connecticut: The Good Faith Certificate Requirement

Over the years, Connecticut doctors have seen their share of frivolous medical malpractice lawsuits. This raises malpractice insurance premiums and ultimately increases health care costs for everyone. To discourage the filing of frivolous medical malpractice lawsuits, the Connecticut legislature passed a law that requires you to submit a “good faith certificate” just to get your case into court.

A good faith certificate consists of two documents:

  • A statement from the lawyer that he has investigated the claim and that he has a good faith belief that the claim has merit; and
  • A statement from a medical expert with training in a similar field as the defendant (endocrinology, for example), stating that there is good reason to believe that malpractice occurred. The expert must provide a detailed explanation of how he reached this conclusion.

The expert witness you use at trial does not have to be the same witness that signed off on the good faith certificate.

How to Select an Appropriate Expert Medical Witness

In a medical malpractice case, selecting the wrong expert witness can doom your case. Observe the following principles for selecting just the right expert medical witness(es).

Start your search early

Start your search early, preferably before the defendant even knows that you are preparing a claim against him. One of the main reasons you need to start early is that there might be a shortage of quality expert witnesses in the relevant field or subfield.

Since an expert witness cannot work for two opposing parties at the same time because of conflict of interest rules, the opposing party might try to beat you to the punch by hiring away an expert witness he doesn’t even intend to use, simply to deprive you of his services. Although this tactic is considered unethical, it is not illegal and it is very commonly used.

Carefully vet your expert for appropriate qualifications and experience

Naturally, your expert should possess solid credentials in terms of both education and experience – he should be either a practicing doctor or a medical school professor. Simply being an expert in “medicine” is not enough. He must be qualified in a field or subfield that is relevant to your case. Your witness should have experience in court, but he should not be someone who always testifies for the plaintiff (such a witness could easily be discredited).

More specifically, your witness will need the following qualifications:

  • A valid Connecticut medical license;
  • Significant experience practicing medicine;
  • Board certification in the same field as the defendant (cardiology, for example);
  • Recent experience in the same field as the defendant; and
  • Preferably, an ongoing clinical practice.

Ask the expert for documentary evidence of his expertise.

Ideally, your expert should be able to produce reports he has prepared for previous cases as well as deposition and trial transcripts from previous cases. Ask the expert for a list of all of his publications. If the expert has ever taken a position that is contrary to what he will testify on your behalf, this will be used by the opposing party to discredit him in court.

Investigate the expert’s reputation and demeanor

The expert should be willing to offer you the names of lawyers he has worked with on previous cases, and you should ask these lawyers about the expert’s competence. You might even want to interview opposing lawyers who have cross-examined him. Check out your expert in court records and on the internet. Meet him in person, have a conversation about the case, and don’t ignore your gut feelings. Does he seem persuasive?

Consider retaining a consulting witness as well

A consulting witness does not testify at trial – he simply helps you prepare for trial behind the scenes. You do not even have to notify the opposing party that you are using a consulting witness at all. Choose carefully, however, because bad advice could damage your claim.

How to Prepare an Expert Medical Witness for Trial

To testify effectively at trial, your expert is going to have to understand two subjects that he is not already an expert in: (i) the applicable legal standards and (ii) the specific facts of your case. If he is a professional expert witness, he is probably already familiar with the applicable legal standards. That leaves most of the preparation time devoted to educating him about your particular claim.

Remember that your witness is obligated to provide his objective opinion, even if it clashes with your version of the case. If your witness’s honest testimony wouldn’t support your claim, you need to discover this early on so that you can find another expert. This means that you will need him to review your case and provide his evaluation as soon as possible. Once he does this, the other side is not allowed to use him due to conflict of interest rules.

One of the best ways you can prepare an expert witness is to subject him to a mock cross-examination by the “opposing party” – your own lawyer. Once your lawyer cross-examines your expert from a hostile perspective (as if he were the defendant’s lawyer), you can seek to work out any discrepancies or ambiguities in his testimony.

The Discovery Process

“Discovery” is the process that occurs after a lawsuit is filed, in which each party gathers evidence in the possession of the other party, by court order if necessary, and interviews the other side’s witnesses outside of court (this is known as a deposition). If the witness’s answer in court contradicts his answer during deposition, this discrepancy can be used to discredit him.

Many lawyers do not begin searching for expert witnesses until after the discovery process has been completed. Selecting your expert witness before the discovery process begins allows him to help you compose deposition and interrogatory questions to ask the other side’s witnesses, which could provide you with a critical advantage.

If your expert witness will testify at trial, the opposing party can compel him to submit to cross-examination at a deposition. The opposing party cannot, however, compel your expert witness to answer written interrogatories.

Presentation of Your Expert’s Testimony at Trial

Since your expert will be trying to persuade a jury that is almost totally uninformed of the issues involved and does not have training in the area, the presentation should be as simple as possible without sacrificing accuracy. It is almost always helpful to rely on visual aids. Any props you use, however, need to be pre-cleared with the court so that the opposing party won’t break the flow of the presentation by objecting to your props.

The Use of Expert Witnesses during Settlement Negotiations

Your best chance of winning an out of court settlement against the defendant is to prepare thoroughly for trial. Your retention of an expert medical witness with a strong reputation can convince the other side to settle rather than lose at trial. If you are still negotiating after filing the lawsuit, your expert’s poise during depositions could increase your odds of settlement. Medical malpractice claims go to trial more often than ordinary personal injury claims.

Berkowitz Hanna Is Ready to Help

If you believe that your doctor may have negligently harmed you during the course of treatment, call Berkowitz Hanna today or contact us online for a free consultation. We serve clients from throughout the state of Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.