The expert witness is the foundation of any medical malpractice case. From analyzing the elements of negligence to testifying at deposition and trial, your strategic success depends upon competent medical insight. Given the pivotal role played by medical expert witnesses, it is surprising how often the search for an expert is left to chance. Choose incorrectly and you’ve made a common and costly mistake that may prove fatal to your case. Secure the right expert, however, and you’ll build a solid strategy and partnership from the outset. Rather than leaving the decision to chance, the following steps will immediately improve your chance of success:
Assure Board Certification
For medical malpractice cases, your expert must be Board Certified by the American Board of Medical Specialties (ABMS). Although other “boards” exist, only ABMS is universally recognized as the official certifying body governing all medical and surgical specialties. The key is to choose an expert whose ABMS certification and active practice identically match the issues in the case.
Know Your Expert
Perform a background check to learn about credentials, experience, prior testimony, and conflicts of interest. Confirm that your expert was in full-time clinical practice, with a spotless professional record, both before and during the time of the alleged negligence in the case. Before agreeing to proceed, speak with your expert to assure that he or she is a good match with your personal style and case requirements. Since the expert has not yet been formally retained, use the time to meet the expert rather than ask case-specific questions. Knowing that your professional relationship with an expert may span a period of years, invest the time to vet your candidates closely.
Avoid Referral Services
Expert witness referral services rely upon preexisting lists of professional experts. These services simply match the medical specialty required by your case (e.g. Cardiology) with a random expert (e.g. Cardiologist) from a predetermined list. Rather than hand-selecting unique experts with qualifications, interests, and expertise chosen for your specific case, referral services are really selling you a random name from a list of subscribing experts. Experts on referral lists typically have suboptimal credentials, advertise on the internet, and can be located without using a referral service at all. A better strategy is to rely upon established consulting firms, ideally staffed by physicians and nurses, who utilize their resources to locate and hand-vet specific experts uniquely suited for your case. Such experts are true experts, typically serving at the professorial level at major medical universities. Professors of Medicine and Surgery have top-tier credentials and never advertise their expert services. Since university experts are generally inaccessible to the public, you will require assistance in securing an ideal candidate for your case. Only trust reputable and recommended firms with established success working for both sides of the bar. Such firms utilize proven practices that respect the critical importance of transparency and discoverability.
Build a Winning Relationship
The key to winning your case is a rock-solid theory supported by an articulate expert. Start that relationship by relying upon your expert’s honest and independent interpretation of the medical facts. Provide all documents, theories, and questions that you wish, but then let the expert do the work of determining whether the facts support the requisite elements of negligence. If the expert’s opinion is positive, take the time to understand every facet, including strengths, weaknesses, and the likely theory of any opposing expert. If the opinion is negative — a common occurrence in randomly screened plaintiff cases — take a similar amount of time to understand the flaws in your case theory. Although the natural inclination is to feel disappointed, experienced attorneys recognize that a well-reasoned negative opinion saves vast amounts of money and time. When you can confidently rely upon your expert, any opinion holds tremendous value.
Bottom line: Maximize your return on investment and winning success by securing an optimal expert witness early in your case.
