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Need an expert witness? Here's what to look for
Every trial usually comes down to a "battle of the experts," with the jury judging the credibility of the experts and making their decision. Consider these important factors, advises Linda M. Stimmel, a partner with the Dallas, TX-based law firm of Stewart Stimmel: Experience, education, training, the effectiveness of how the expert communicates with the jurors, and the bedside manner of the expert. "Even how the expert is dressed may affect their credibility."
The plaintiff's expert will testify that the doctor breached the standard of care and that the breach caused injury or death-the defendant's expert will disagree. "That is when the jury has to decide which expert is more believable," says Christy Tosh Crider, a shareholder at Nashville, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz.
When choosing an expert, it is important to consider what your jury will likely look like and their likely level of education. "The best experts strike a perfect balance of a complete command of the medicine, with an ability to explain at the level of the least sophisticated juror," says Crider.
His or her delivery, says Crider, should have the jury thinking "I like her. I trust her. I understand what she is saying. I would like her to be my doctor."
"Credentials are important, but in my opinion, not as important as the ability to deliver on the stand and to stand up to cross examination," says Crider.
The best expert witness, says Chris DeMeo, a health care attorney at McGlinchey Stafford, PLLC, in Houston, TX, is "someone who is not just going to tell you what you want to hear, who does not need to be spoon-fed, but can review the pertinent materials and help develop the defense theory, and can articulate the medicine and theory of the case at layman's level."
"Published experts are also nice, especially in cases dealing with a specific medical issue that is case determinative," says DeMeo. "Too much publication can be problematic, however, when it makes the witness look like an academic in situations when clinical orientation is more appropriate, or when the lawsuit opinion is different from the publication's."
It's essential that the medical concerns that need to be addressed fall within the expert's specific area of expertise. "If not, the expert may be able to suggest to the attorney a different expert or area of expertise that may be needed," says Emory Petrack, MD, FAAP, FACEP, president of Cleveland, OH-based Petrack Consulting.
For example, if an attorney contacts an expert about a missed testicular torsion in the ED, an ED expert should be able to review care in the ED, but if questions come up about potential loss of fertility and other sequelae, those questions might be better answered by a urology expert.
Your expert should be able to provide an unbiased, objective review of the case. "This is absolutely essential," says Petrack. "The expert is there to provide objective information as to whether the standard of care was met."
For the plaintiff's attorney, this honest, objective information is essential. If the standard of care was met and the case does not have merit, the attorney needs this information as early as possible, to make an informed decision as to whether the case is worth investing time and resources.
For the defense attorney, early information can help the defense counsel to begin structuring their strategy by understanding if standard of care was breached and settlement needs to be considered, or whether standard of care was met, perhaps suggesting that early settlement is less appropriate.
Petrack says that generally, a board certified emergency physician with an appropriate clinical background should be able to offer appropriate expert review for most ED cases.
"For pediatric patients, a board-certified pediatric emergency physician offers additional credentials and background to strengthen the credibility of the expert's findings," says Petrack.
Despite the fact that an expert review should be unbiased, there are times when there are legitimate differences in perspective and different findings in the reviews of experts, adds Petrack.
"The reality is that communication skills are an important part of the process," says Petrack. "The expert who is calm, clear and confident in their delivery, whether at deposition or trial, will have more credibility that one who is rambling or unclear in communicating their findings."