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Giving expert opinion in court

By James W. Saxton, Esq & Janine P. Pendyck

Physicians who make the best expert witnesses are those who do so occasionally, have unique expertise, and get involved because they realize the true importance of the task. Expert witnesses are necessary for both the plaintiff and the defendant in a medical malpractice law suit. Unlike “fact witnesses,” who testify as to their first-hand knowledge of an event, an expert witness evaluates those facts, using his or her background training, experience and knowledge of the literature to render an opinion. Physicians are required to provide care as other reasonable practitioners would under similar circumstances—care that is, in legal terminology, within the acceptable “standard of care.” Experts define what falls within the boundary of this standard. They also evaluate whether a defendant physician’s actions or inactions are actually responsible for causing any harm, legally termed the issue of “causation.” Experts may also be asked to evaluate the nature and extent of damages.

When a review is performed in good faith, it can bring an early end to a case with no merit, or facilitate a fair settlement if there was actually a problem, or a case may proceed to trial. It might be a year or a number of years after an opinion is rendered before the trial. At the outset of accepting an engagement to perform an expert review, a number of things should be clarified, such as fees that will be charged, and it is prudent to have an agreement in writing. Typical charges today are rates of $250 to $350 an hour, with very narrow specialties commanding $450 and even more. Frequently, this rate is formulated based on what the expert typically earns in his or her medical practice.

Additionally, the potential expert should consider his or her own time constraints and understand the time requirements of the contacting attorney. He or she should know where the trial will be and make clear their willingness to appear live at the trial. It should be agreed that, regardless of the outcome of the review, favorable or unfavorable to the side of the contacting attorney, that payment will be made for all of the time dedicated to the review, and that an honest opinion will be rendered. This is one of the responsibilities of a true expert.

As an expert, one must be able to balance his or her respect for the intelligence of the jury while giving testimony regarding complicated medical issues in such a way that they can be understood. An expert must educate the jury, be credible and compelling. Credibility begins with impeccable credentials. At trial, the attorney who retains the expert will conduct “direct examination,” during which the expert will be questioned at length about background and education. Honors received, relevant publications authored by the expert, professional achievements and particulars in the expert’s background that exemplify special expertise will be highlighted at this time.

On “cross examination,” opposing counsel will attempt to minimize these areas and focus on any weak spots that might cast doubt in the minds of the jurors as to expertise and credibility, such as past disciplinary actions. Well-prepared opposing counsel will have read the expert’s publications and researched past testimony, looking for comments and opinions rendered previously that are contrary to what is being contemporaneously expressed.

The expert will then be questioned at length regarding his or her knowledge of the facts of the case at hand, the opinions held and the basis for those opinions. This is often a stressful time. It is adversarial. The lawyer retaining the expert should have spent sufficient time preparing the expert in anticipation of issues that may arise so that all questions can be answered calmly and logically while maintaining credibility. Being sincere in one’s beliefs and not a “hired gun” is most important. Trial testimony is given under oath and recorded. Prior testimony is always available for potential use against an expert in future cases. Testifying consistently as to one’s true convictions helps avoid the embarrassment of conflicting testimony surfacing at the time of trial and promotes the emergence of a “standard of care” which a jury can confidently accept.

Testimony regarding facts and opinions will largely be limited to what was already set forth in a report issued long before and studied ever since. Expert reports are often composed of three areas: a list of the factual documents reviewed; the expert’s interpretation, evaluation and opinions; and the basis for those opinions. Opinions are rendered “to a reasonable degree of medical certainty,” another legal term, but one that cradles the opinions in a perspective of reality, reminding us that medicine is at least as much an art as it is a science.

Frequently, the individuals who are targeted to perform these expert reviews are physicians holding positions of obvious merit and prestige, such as a department chair at an academic center. Physicians with special interests who have published or spoken on a narrow area within their specialty are also likely to be contacted. However, any physician who is Board Certified and in active practice can be a credible expert, especially if he or she is willing to do the hard work that is involved.

Potential experts who receive the calls and letters from lawyers seeking expert opinions should consider the initial contact as an indication as to what the continuing experience may be like, should the engagement be accepted. Consider how well prepared the lawyer is to discuss the case and how organized he or she appears before accepting it, and remember to discuss fees and get an agreement in writing. Any physician who chooses to be an expert witness for either side, and makes that choice out of a sincere personal conviction, accepts a very important responsibility and performs a valuable service to society. The experience can and should be gratifying, both intellectually and economically, but will be only if performed with the highest integrity.

James W. Saxton, Esq., is Chairman, Healthcare Litigation Group, and Janine P. Pendyck is a paralegal at the law firm of Stevens & Lee.

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