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At some point in their careers, most physicians consider testifying as an expert in a medical malpractice case. It can be both an exciting and rewarding experience. However, often the doctor is unfamiliar with the process and enters it without the proper understanding of the role an expert plays in a medical malpractice case and the rules that apply to him.
Most physicians are aware that in order to win his case, a plaintiff must have a credible expert witness to support his claims of negligence and damages. Without such an expert, the plaintiff cannot succeed. Likewise, a successful defense often rests on a strong expert who can convince a jury that there is no negligence in a case. Thus, the role an expert plays in a case can be crucial to the outcome.
The first step for an expert witness is to review the existing medical record of the plaintiff. If the expert represents the plaintiff, he or she will often examine the plaintiff. After this review is complete, the doctor will render an opinion on the care given the plaintiff and whether it deviated from acceptable norms. If the expert review is favorable for the defendants, the physician will be asked to testify if the case goes to trial.
If the case goes to trial, the expert should be aware that certain evidentiary rules limit the scope of his testimony. In order for an expert opinion to be admissible it must be based on either; (1) facts of which he has personal knowledge; (2) facts not derived from personal observation but from evidence generally accepted and normally relied upon by physicians; or (3) facts assumed in a question put to the expert and supported by either admitted facts or by testimony of other witnesses already given or to be given in the trial. SeeSacco v. Roupenian, 409 MASS. 25 (1990).
Expert testimony will not be admissible if it strays from these evidentiary guidelines. For example, expert opinion will not be admitted if the court determines it is based on speculation or conjecture. In McCarthy v. Hauck, 15 Mass. App. Ct. 603 (1983), the expert witness assumed that the defendant anesthesiologist had use a clear plastic semi-rigid endotracheal tube during a surgical procedure and, based on that assumption, opined that the use of that tube had caused the injuries to the plaintiff's nose. However, the only evidence in the case concerning the nature of the tube actually used, described it as being of soft, red rubber. The court held that while the jury was not require to believe that the tube was red, soft and made of rubber, "neither the [expert] witness ... nor the jury could use disbelief to leap over the evidentiary crevasse to the assumption" that the tube was as the expert has assumed. The Court held it was error not to have granted a judgment notwithstanding the verdict where the plaintiff's expert testimony on causation and negligence depended upon a fact never proved.
Likewise, an expert should be cautious of basing his opinion on an assumed fact or one that cannot be proved.
A second potential problem for the unwary expert is testifying beyond the scope of your expertise. In medical malpractice cases, expert opinion is normally divided between the standard of care and causation. Thus, one expert will limit his opinion to the care given to the plaintiff and whether it violated the applicable standard of care. Another expert will testify strictly to the causal link between the alleged breach of care and the damages suffered by the plaintiff. While one expert can opine on both matters, usually it is necessary that expert testimony on the standard of care and causation be separated out. For example, in an obstetrical case, the parties would need an OB/GYN expert to testify on the standard of care for labor and delivery. However, that same expert could be excluded from testifying on the neurological damage of the baby since he would not be deemed an expert in neurology. In order to avoid this problem, experts should be conservative in the scope of their testimony.
A final cautionary point deals with personal bias. Obviously, the opposing counsel in a medical malpractice case will attempt to discredit an expert's testimony by an reasonable means available. One such means is an attempt to show that the expert has a personal bias in the case. This bias is generally shown during cross-examination with questions about the frequency with which that expert has testified and the one-sidedness of that testimony.
Plaintiff's counsel will ask if the defendant's expert has ever reviewed cases or testified for a plaintiff in a medical malpractice case. This type of question is most damaging when the answer is that you testify for defendants in your own geographical area but for both sides elsewhere. One does not look biased just because he testifies for one side exclusively. However, if the testimony is always on one side and usually for the same attorneys then there is a potential for the appearance of bias. This is a major source of concern for plaintiff attorneys who often use the same experts in several cases. These experts run the risk of looking like "professional witnesses" for that plaintiff attorney.
If a doctor is cognizant of the evidentiary rules for expert testimony and the major problems encountered when testifying, then appearing as an expert witness can remain an exciting and rewarding experience.
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