Expert Witness Blog

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.

To summarize ... consider not taking medical negligence cases in the following instances:
6. The defendant is a well-known and highly respected physician that most reputable medical experts refuse to testify against. It will be very difficult to find an appropriate expert; and even if one is found, because of the defendant's standing in the medical community, it may be more difficult to obtain a judgment against him. Also, if the procedure, treatment, or medical subspecialty is rare, then it will be very difficult finding a medical expert witness to testify.

7. The case hinges only on informed consent or misrepresentation issues. This often pits the health care provider against the plaintiff in terms of credibility and honesty. Furthermore, it will be difficult to convince a jury that the plaintiff would not have agreed to the procedure or treatment if properly informed of its risks.

8. If the issue of causation can not be satisfactorily established. Cases will be lost in these situations even when care was grossly negligent.

9. A plaintiff has exacerbated the damage by not following the physician's instructions. For example, did the plaintiff add to the damage by walking on a leg despite non-weight bearing orders?

10. When a shortened life-expectancy existed anyway from non-related conditions. For example, even though a 40 year old man bled to death on the operating room table due to physician error, this patient had terminal lung cancer and a very short life-expectancy.

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.

To summarize ... consider not taking medical negligence cases in the following instances:

1. The medical issues are complex. The more complex the medical issues, the more difficult it will be to convince the jury that the doctor committed malpractice. If a case involves multiple physicians, some of whom committed no negligent acts, it may be exceedingly difficult to separate out the truly negligent care. Jurors may view this kind of lawsuit as an unwarranted attack on everyone. Plus the more doctors who are involved, the more costly the undertaking, in terms of obtaining more medical experts.

2. The patient underwent a medical procedure for cosmetic rather than medical reasons. Jurors often believe that these people are vain and that they assume all the risk of a bad outcome.

3. The plaintiff's condition is such that delayed or misdiagnosis did not result in significant additional injury and would not have changed the prognosis. Jurors often find the "so what" defense compelling enough to excuse negligence.

4. When the defense medical experts include the follow-up care physicians. Their credibility usually exceeds the credibility of the plaintiff's experts.

5. Damages resulting from the injury are too small to justify the time and expense of litigating the claim.

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in the medical negligence case.

Two objective case analyses are touted by many seasoned medical malpractice litigators as the judicious approach to working up a potential case. When the two reviews are in concordance, you will be on solid footing and well on your way to maximizing your chances for a successful outcome. If there is a discrepancy between the two reviews, then it will be easier for you to understand the weaknesses of your case. The knowledge you attain in this way will help you to decide whether you want to drop, or stay with the case. The costs for the in-depth medical expert record review and analysis should be in the neighborhood of $1000 to $2000 per medical expert; again depending on the volume of records, complexity of the case, and the specialty of the medical expert doing the record review.

Case review is both a science and an art. The physician reviewer must be adroit at dissecting out the critical facts and determining whether or not the appropriate standards of practice were breached. Moreover, the reviewer must decide whether issues of causation clearly reinforce any alleged departures from the standard of care. Attention must also be given to damages. The issues can be quite complex. Are the injuries or disabilities due to malpractice or are they a maloccurrence, an unfortunate bad outcome that could not have been prevented?

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in the medical negligence case.

It has been said that a little knowledge can be dangerous. Nowhere is this more obvious than in medical negligence case analysis. The quality , credibility, and scope of the record analysis will only be as good as the reviewing individual(s). Bottom line: Choose reviewers wisely; pay appropriately. Typical costs for detailed initial case screening average $500 to $1000 depending on the size of medical records, complexity of the case, and the specialty of the reviewing physician.

Cases that are deemed provisionally meritorious should be sent for a second review by medical experts identified by the screening physicians, who are prepared to give oral testimony if called upon. Careful attention should be given to determining who the medical experts should be. Ideally, a physician consultant experienced in medical-legal matters should assist you in the identification of the appropriate medical specialists. This person can "talk shop" with the potential expert and be in a better position to decide whether any given medical expert is the right person for the case. By analogy, you, as an attorney, would be in a much better position than a layperson to recommend another reputable and successful attorney in a specific legal specialty area. Thus, it makes good sense to establish a relationship with a physician consultant experienced in medical-legal case analysis.

In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes that "To accept or reject a medical negligence case: this is the single most important decision you will make when processing a medical negligence case." Choosing unwisely, either a case with good potential will be lost or an unmeritorious case will tie you up for long periods of time resulting in great expense.

To make an informed decision about accepting a case, you must have the facts, not only those you obtain from your client, but more importantly, those obtained from qualified medical experts after a thorough review of the medical records.

It is not enough to have medical records reviewed by just anyone. Medical records should be screened by those specially capable of understanding and identifying all medical-legal issues. These individuals should be experienced in medical-legal analysis and board-certified in the medical specialty where the alleged negligence occurred. Even better, the medical records can be reviewed in a collaborative setting, where the records are screened by one board-certified physician who then confers with other medical specialists to form consensus opinions.

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained? In this excerpt, they write on addressing the jurors ‘heart to heart."

A third visual sign of a cooperative attitude is body orientation. A frontal orientation, where people face each other squarely, communicates interest in the interaction and a willingness to interact ‘heart to heart.’ A sideways orientation, when people literally "turn a cold shoulder" to others, indicates indifference or disinterest. And finally, when people leave the interaction, they literally "turn their back" on it, communicating their lack of interest in the other person.

Experts need to communicate clearly that they are involved in the courtroom interactions, so they will want to go out of their way to give a frontal orientation to those who address them. For instance, when addressed by the judge, it is preferable to actually turn in the chair in order to give a frontal orientation to answer the judge, instead of simply turning one’s head. When attorney clients address their experts, the experts will want to give the same frontal orientation. And even with opposing counsel, a frontal orientation is desirable because it communicates a sense of fairness and cooperation in seeking justice.

When addressing jurors, it is especially important for experts to turn in their chairs and meet the jurors ‘heart to heart.’ But this raises an interesting question: when should experts address the jury and when should they address the attorney who is asking the questions? Jurors are the more important audience, without doubt. On the other hand, experts can be perceived as rude if they ignore the person who is talking to them - i.e., friendly counsel.

This problem can be addressed by the attorney instructing his expert to "tell the jurors" the answer. Once the attorney gives the expert permission to answer to the jurors - then the expert has a justification for turning away from the attorney. This verbal prompt also establishes a pattern of behavior, so even when counsel does not give the expert the prompt, she can still turn to the jurors with her answers.

In Life-Care Planners Can Help Simplify Damages For The Jury, vocational evaluation expert witness and life care planner Ronald T Smolarski writes on to determine what care and how much money a chronically or catastrophically disabled individual will need for the rest of his or her life.

..based on current medical knowledge, the rehabilitation consultant strives to itemize everything the disabled person might need during his or her lifetime and to make the plan specific so the individual's needs are met. Cost is established using a two-step process. In the first step, a monetary sum that will compensate for actual loss and encompass all foreseeable expenses is determined in current dollars.

In the second step, a rehabilitation consultant qualified in economic damages evaluation determines present and future values of damages. To do this, cost is given in current dollars. Through this process, future cost increases can be more easily seen, understood and met.

For the attorney representing a plaintiff, a life care plan strengthens the argument for a truly realistic settlement sum. A rehabilitation consultant with specialized skills and training, accredited in life care planning, can testify in court as an expert or work as a consultant and assist the attorney in formulating his or her argument.

A life care planner can be of similar value to the defense. In such cases, the life care planner can advise the attorney on records to request and reports to use. The life care planner can also provide expert advice and testimony disputing the need for requested items or services and unnecessarily high settlements. Given the current tendency of some courts to put a cap on settlements, attorneys will probably find the expertise of a life care planner increasingly beneficial.

In Life-Care Planners Can Help Simplify Damages For The Jury, vocational evaluation expert witness and life care planner Ronald T Smolarski writes on to determine what care and how much money a chronically or catastrophically disabled individual will need for the rest of his or her life.

Some attorneys representing either the plaintiff or the defendant in such cases are now getting the expert help they need from specially trained rehabilitation consultants called "life care planners". Life care planners do exactly what the name implies: they formulate life care plans - detailed descriptions of special damages the disabled individual suffered, what progressive disablement can be anticipated and, most importantly, the present and future monetary costs of all necessary care.

In doing this, the life care planner deals in actual dollar figures, not "guesstimates". This allows the jury to understand what the disabled person needs, currently and in the future, and why. As a result, the specialized training of a life care planner can simplify the plaintiff attorney's job, strengthen the case and make the settlement more realistic in terms of future needs. For the defense attorney, the life care planner can point out case weaknesses, exaggerations and unnecessary costs.

Steve Roensch, President of Roensch & Associates and metallurgy expert witness, discusses Finite Element Analysis:

FEA is applied to many types of problems, such as temperatures in consumer electronics, airflow around aircraft, and magnetic fields in electric motors. By far the most common application is structural FEA -- determining how a solid body responds to various forces.

The structural problem amounts to writing down some "governing equations" that describe the material and how it behaves, and then solving those equations for the physical part being analyzed subject to how it is held and loaded. This can be done on paper for some simple part shapes. The resulting "closed form solution" is another equation that provides the answer in terms of the basic variables, such as the part's dimensions.

But reality intervenes, and most parts are too complicated to solve in closed form. FEA comes to the rescue by providing a "numerical solution" for each individual problem. This is a large gathering of numbers approximating the desired answers, such as displacements and stresses, across the part. But each solution is unique to a specific case; there is no simple answer in equation form.

Steve Roensch, President of Roensch & Associates and metallurgy expert witness, discusses Finite Element Analysis:

Many legal professionals are exposed to Finite Element Analysis (FEA) in the courtroom and hire metallurgists to study failures across many industries..Finite element analysis is regularly applied to a vast array of products when something bending or breaking is an issue. FEA is applied to many types of problems, such as temperatures in consumer electronics, airflow around aircraft, and magnetic fields in electric motors. By far the most common application is structural FEA -- determining how a solid body responds to various forces.

Having a fundamental understanding of how the method works can help an attorney (i) recognize when FEA can strengthen a case, (ii) choose a capable expert and (iii) develop meaningful challenges to the opposition's expert. As discussed in the last issue of Courtroom FEA, if a loss, injury or death is due to something bending or breaking, FEA can help identify the cause of failure and hence the responsible party.

Next from Steve Roensch: But how does it work?

In Lemon Law Resources: Litigation Process, Attorney Sergei Lemberg writes regarding discovery:

Discovery is the longest part of a lemon car case: it begins soon after a lawsuit is filed and often does not stop until shortly before trial. During discovery, each side asks for information about the facts and issues of the case. Information is gathered formally through written questions (known as interrogatories), requests for documents, and requests for admission (which ask each side to admit or deny statements of fact).

Discovery includes questioning the dealer personnel, representatives of the manufacturer and/or any expert the manufacturer may have hired. Often, a claim or defense requires support from expert witnesses to explain technical information or validate an argument. One or more experts might be needed to testify about the connection between the manufacturer’s and the dealer’s conduct, the defects in the vehicle, and the loss suffered by the plaintiff or the existence and amount of the plaintiff’s damages. Expert witnesses work closely with representatives and attorneys to prepare the case. The plaintiff’s attorneys may retain and ASE Certified Master Mechanic to inspect the lemon vehicle and write a report.

In Handling Expert Witnesses in California Courts, Robert Aitken writes that step one is to "analyze evidentiary issues to determine whether you need a consultant, an expert, or both." A consultant is an expert who does not testify in court and is not subject to discovery. For example, the advantage of using a software consultant as opposed to a software expert witness is that their opinions and reports regarding software functionality and software implementations would qualify as attorney work product and are protected from disclosure according to the California Code of Civil Procedure.

In Cross-Examination of Experts On "Underlying Facts or Data," Carl Robin Teague writes that cases involving complex questions of medical causation often turn on the "battle of the experts."

Whether the testifying expert witness is a "primary" expert (i.e. published or participated in the study upon which his opinions are rely) or a "secondary" expert (i.e. is relying on a published paper describing a study in which he played no role), requests to produce the raw data underlying published scientific studies typically are countered with several arguments:

1) The published scientific study alone is sufficient, because it has been peer-reviewed.

2) The data contain confidential and sensitive patient information, disclosure of which would infringe on patients' privacy rights;

In Anatomy of a Witness List, Hon. Michael L. Stern writes that "each witness should tell the next part of your story and move your case forward... By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses."

If the testimony of the prior witnesses shifts and adds to the assumptions on which the expert has based a pretrial opinion, an expert can make adjustments (presuming that these remain consistent with the expert's ultimate conclusions). A late appearance in the trial also allows the expert to summarize and re-emphasize the favorable information supporting the case.

In Cross-Examination of Experts On "Underlying Facts or Data," Carl Robin Teague writes that products liability cases involving complex questions of medical causation often turn on the "battle of the experts."

As this battle takes on heightened importance, more and more litigants - citing Daubert's focus on the expert's methodology and procedural rules requiring disclosure of the expert's reliance materials - have successfully sought to review the raw data underlying the opinions proffered by opposing experts. In some cases, the testifying expert relies upon his own published studies and actually possesses the data underlying them. More often, the expert relies upon scientific studies published by others. In these latter cases, the testifying experts likely have no access to the data; the courts must arbiter subpoenas duces tecum and motions to quash involving the production of sensitive data from scientists who have nothing to do with the case.

In Anatomy of a Witness List, Hon. Michael L. Stern writes that "each witness should tell the next part of your story and move your case forward... By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses."

There are as host of reasons why most expert witnesses should be presented last in order. They are the cleanup batters for liability and damages issues. Counsel are depending on these well-paid players to hit trial home runs. Experts should be persuasive salespersons who should be able to summarize the salient points of the case for the jury and maybe even add an element of respectability to some claims.

n Appraisal Review in a Litigation Support Role real estate expert witness Jack P. Friedman, Ph.D., MAI, CPA, ASA, CRE, describes how the appraisal review process and review appraiser are used effectively in litigation support.

When engaged, or rather enmeshed, in litigation, an attorney will often solicit support from a review appraiser. Typical areas of assistance the attorney needs are:

3. To provide other forms of litigation support, such as preparing courtroom exhibits and
helping to frame questions to ask appraisal experts on both sides at depositions and during
trial testimony.

4. To advise the attorney about standards of practice, professional codes of ethics, sources of
information, other experts, and other matters that might impact the pleadings, discovery,
dismissals and pretrial judgments, settlement conference or other negotiations, and the actual
trial of the case.

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In Appraisal Review in a Litigation Support Role real estate expert witness Jack P. Friedman, Ph.D., MAI, CPA, ASA, CRE, describes how the appraisal review process and review appraiser are used effectively in litigation support.

When engaged, or rather enmeshed, in litigation, an attorney will often solicit support from a review appraiser. Typical areas of assistance the attorney needs are:

1. To review appraisal(s) prepared at the request of opposing counsel, identifying areas of
strength or weakness as an aid to the attorney in preparing the case, and to provide rebuttal testimony.

2. To review appraisal(s) prepared at the attorney’s request for the same purpose: to assist the attorney in preparing the case and to offer suggestions as to how the appraiser could make the report or presentation clearer or more effective to the fact finder.

Lawyers must be sure that their expert witnesses testify in a way the jury understands clearly. It is often easy for legal counsel to understand testimony because he or she is familiar with it but they must remember that this is the first time jurors have heard it. For example, the equipment and machinery expert witness must be able to testify on the facts, concepts, and technical language in an understandable way on subjects that may include woodworking machinery (radial blades, bandsaws, debarkers, conveyors, lumber stackers, resaws, planers, etc.) and metalworking machinery (cutoff saws, lathes, grinders, sand blasters, punch presses, tipping machines, drills, etc.)

In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So, mediation can be very productive as a discovery tool and opportunity to learn more about your client’s case, and what the other side has to say IF the parties come in good faith, with a view towards getting the important facts on the table. But if one side is attending simply to demonstrate that it is playing hardball and merely wants the other side to capitulate for reasons that are not meritorious, then a mediation is not worth the time or money.

One issue that you face is how much you tell the other side. For example, what if you have significant negative information on the other party, or impeachment potential; do you share that? Maybe not. Maybe it has to be saved to avoid the adverse party being able to defuse this potential damaging evidence. Or, it might be that you can disclose the essence of this information in a private letter to the mediator, and can go over its substance and level of importance in your case in a private caucus. That is a judgment call that you as counsel need to make. If you follow this approach and hold it back or disclose it only to the mediator, the mediator might use it if he or she believes it may result in closure. Again, that is something you and the mediator need to discuss to put together a strat