Evaluating Expert Witnresses

The following recommendations are not intended to be an exhaustive list in selecting a medical expert but are intended to provide a basis upon which to formulate a plan for an effective screening process. Because medical expert witnesses are quite expensive, the careful practitioner must be diligent in efforts to procure an expert to achieve the greatest benefit for his/her client.

The primary and most important step in expert screening is performing a top-notch review of your case. An attorney should know his/her case before enlisting the services of a medical expert. A thorough review of the case includes analyzing client’s medical records, including current medical care and physical challenges, as well as previous medical treatments and pre-existing conditions. Additionally, a careful practitioner will want to know if his/her client has ever pursued malpractice claims in the past and their outcomes as well as whether the client has sought legal representation in the present case from someone else. If the client has sought legal representation from another attorney, the likelihood that the case has already been sent out for a medical review is great. Looking at the case histories can let an attorney know in advance that a case is not a good one, saving many hours. A thorough screening of a case should focus the attorney in on which doctor(s) are likely responsible for the client’s current condition and therefore what area of medical expertise the expert(s) should be qualified in. Once a thorough screening has taken place, the next consideration is locating an expert witness and screening him/her to assess whether he/she is the right expert for the case.

The first rule of thumb is to remember you are the attorney and the responsibility for properly screening the expert(s) is yours. Even if you are using a referral service, don’t assume that the referral service has performed a background check on your doctor. Approaching the selection of an expert with this mindset will prepare you to ask the right questions and lead you to follow up on the expert(s) credentials.

Any expert, as part of the screening process, should be willing to provide a copy of his/her CV, fee schedule and an initial phone screening at no cost. Do the best you can with what services are provided for free. A careful review of your expert’s CV and fee schedule can help you weed out, early in the process, experts that are not right for your case. If after reviewing the expert’s CV and fee schedule, you are still interested in his or her service, arrange for a phone screening and prepare for the conversation. A phone screening (always free) will be the best opportunity for you to see if the expert is a fit for your case. In order to assess the compatibility of the expert with your case, have your end of the conversation with the potential expert planned out ahead of time. Successful doctors are very busy and if they are doing the phone screening for free, they want to not take up too much time.

Points of discussion with the medical expert should include a brief summation of your case including a description of the procedure(s) performed by the doctor whose treatment being questioned and the problems suffered by your client. After providing a brief summation of your case as described above, ask the expert if he/she is comfortable in taking on a case in this particular area. If the expert’s CV did not make clear the qualifications in your needed medical category, make sure you ask what training, experience and/or education he/she has in your case’s subject. Most importantly, has he/she performed the procedure that is in question or if a procedure was performed that is not accepted practice, has he/she treated patients that presented with symptoms the same or similar to your client. Use the free phone screening to assess the personality of the expert as well. If the expert does not connect with you, there is a great chance he/she won’t connect with the jury either. Also, if your case is a Plaintiff’s case, make absolutely certain that he/she is willing to testify against another doctor.

During the initial phone screening, you will also want to ask the expert how many times he/she has testified in court and what is the ratio of Defendant cases verse Plaintiff cases. If your expert has only testified for defendants (or plaintiffs), then he or she is likely to appear biased. Also, what was the result of each of the cases in which the expert testified? If your expert has lost his or her past ten cases, why would you expect a different outcome this time? Additionally, has the expert been sued for malpractice? If this is the case, when, how many times, and what was the final outcome of the case(s)? Few things are more damaging to your client’s case than putting on an expert who has been found negligent in his/her own practice of medicine.

Usually, when you choose an expert witness services company, you will not see an expert’s name right away on the CV. If this is the case, upon completion of the phone screening, be sure to verify the status of the license(s) reported by the expert with the Medical Board from each of the respective states. If the expert’s name is on the initial CV, verify the status of the license(s) before planning the phone screening. Expert witness services companies have a variety of legal, professional expert witnesses both technical and medical.

Once you have completed all of the above and asked additional questions and sought out the right information based upon the specific needs of your case, you are now finally ready to make a decision. Good Luck!

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