Keeping Experts Honest in Medical Malpractice Cases

In every medical malpractice case that goes to trial, one set of experts conducted an unethical analysis.

In every medical malpractice case that goes to trial, there are two sets of experts who look at the same set of facts and reach entirely different conclusions. This is because experts on one side of the case have undertaken an intellectually dishonest evaluation.

Medical experts are bound by a code of ethics when they review a case on behalf of a litigant. At their core, ethical requirements related to expert testimony almost universally require that experts conduct (a) a comprehensive analysis of the facts, (b) an objective analysis of the facts and (c) a review in accord with accepted principles of science.

If an expert is taking a position that is wrong, he is usually either (a) misrepresenting the facts of the case by ignoring, minimizing or overemphasizing evidence, or (b) misrepresenting the medicine by advocating medical science that is against the consensus of opinion. Medical experts do not usually misrepresent the science in a case. There are many reasons why. First, the majority of experts are not intellectually dishonest. Second, the prevailing consensus about an issue of medical science is usually set forth in writing either in published articles, textbooks or clinical practice guidelines. From a purely strategic point of view, it is not a good idea to for a medical expert to defend a litigation by taking a position that is contradicted by published documents which are relied on by colleagues to make medical treatment decisions. Third, if expert physicians are intellectually dishonest, over time they create a paper trail that sooner or later turns them into a liability, and lawyers stop using them.

In every deposition of every expert, confirm the ethical rules that applied to his analysis.

Establishing the ethical requirements of a fair expert evaluation during the deposition of an adversary's expert provides you with powerful proofs to use at the time of trial. If the expert conducted a bias factual review, you will be able to use the expert's testimony about what is required for a fair evaluation against him.

To exploit an expert's credibility problem stemming from a faulty factual analysis at trial, you must establish in a deposition exactly what he reviewed prior to forming the opinions set forth in his report, and what facts the expert considered important to his analysis.

Make sure that you establish unequivocally at the outset of a deposition everything which was reviewed by an expert prior to the formation of the opinions set forth in his report. This is a prerequisite to exposing credibility problems at trial because until you establish this baseline information, you will not be able to demonstrate that the expert ignored, minimized or overemphasized evidence.

Establish that the expert did not intentionally leave materials off of his list because the materials were either (a) harmful to the litigation posture of the party who retained him or (b) helpful to the other side. Confirm that the expert did not do either (a) or (b), because this would be violating the rules governing how he should behave as an expert.

Expert reports always contain a factual chronology. Establish at the expert's deposition that when the expert prepares reports in other cases, he sets forth factual chronologies in those reports as well, and this process is not unique to your case. Confirm that the expert tried to be accurate when listing thefacts in the chronology in his report, and he tries to be accurate in other cases when he does this.

Confirm with the expert that the facts set forth in his chronology are facts which he believed were important. An expert will often resist committing to this position because he recognizes that you are attempting to wed him to his factual analysis, and he is aware it is not objective. You can get usually get an expert to stop resisting the idea that he listed important facts in his chronology by attempting to establish the converse conclusion. Ask the expert whether the facts listed in the chronology of his report were unimportant. Ask the expert whether the facts in the report were selected in an arbitrary fashion. Ask the expert to identify those facts in the chronology that he thinks are unimportant to his analysis. Ask the expert to identify important facts he reviewed that are not in his chronology.

Once you have confirmed the ethical rules that applied to an expert's analysis, you can then expose at the time of trial that the expert either (a) misrepresented the facts of the case by ignoring, minimizing or overemphasizing evidence, or (b) misrepresenting the medicine by advocating medical science that is against the consensus of opinion, and you can end your cross examination by getting the expert to admit that when he did this, he breached the ethical rules applicable to his analysis.

Here are links to the ethical requirements pertaining to expert testimony of the major medical societies:

• American Medical Association
• American Academy of Family Physicians
• American College of Radiology
• American Academy of Neurology
• American Academy of Orthopedic Surgeons
• American Academy of Pediatrics
• American Academy of Physical Medicine and Rehabilitation
• American College of Legal Medicine
• American Psychiatric Association
• American Society of Anesthesiologists
• American Board of Independent Medical Examiners
• American College of Cardiology
• American College of Surgeons
• American College of Emergency Physicians
• American College of Occupational and Environmental Medicine
• American College of Rheumatology
• American Association for Thoracic Surgery