Imagine that you’ve secured a top-tier medical expert for a “solid” case, the medical records are in the expert’s hands, and now it is only a matter of affirming your theory so that the case can advance. And then, disaster strikes: The expert calls with an opinion that is 180-degrees off-target and entirely counter to your claim. When analyzing what went wrong, the answer may be as simple as regrouping to allow the expert to consider differing versions of the same medical encounter.
Understanding the Full Story
The medical record — though often perceived as sacrosanct — is really just a single perspective on a complex patient encounter. In other words, it may not be accurate and it may not necessarily include the viewpoint of bystanders such as the patient’s friends and family. For example, say that a 52-year-old woman presents to the emergency department with a complaint of “migraine” headache. The electronic health record (EHR) will have extensive notations — perhaps several pages — detailing the headache’s character, onset, severity, duration, and modifying factors.
Now let’s assume that the woman was treated for a migraine, had complete relief, and was discharged home with her husband before experiencing a massive stroke several hours later. When an expert reviews the chart, the natural conclusion may be that “the woman had a migraine, the care seemed reasonable, and it was just an unfortunate circumstance that could happen to anyone.” But, what if the woman’s husband had a different perspective? What if he said that his wife never had a “migraine” but simply used the word as a descriptor, and that he actually wheeled her out of the ER because her headache never resolved? The husband’s perspective might have had a profound influence on the expert’s opinion, but the expert never even knew that his version existed.
Preparing the Medical Expert
Although sharing such a viewpoint may seem like common sense, some attorneys are reluctant to memorialize third-party accounts or to share them at an early juncture. Their belief is that it may improperly influence an expert’s opinion or somehow adversely impact discovery. Both concerns can lead to costly errors and ill-informed conclusions by the expert. While an attorney should never exert influence over an expert’s interpretation of a medical record, allowing an expert to properly consider all hypotheticals is appropriate and necessary, especially when a contrarian view is entirely omitted. Remarkably, the solution is simple: If there are undocumented facts to which a friend or family member will testify, share them openly with your expert!
There are two approaches to accomplish this and both involve disclosing information that will ultimately emerge during discovery. The first is to prepare a neutral cover letter summarizing the facts to which a third party is expected to testify. The letter would be included with the initial records sent to the expert. Alternatively, you may prepare an affidavit for the third-party to review and sign. Your cover letter would address the purpose of the affidavit and the affidavit would be included in the expert’s record set. In both iterations, counsel impartially summarizes fully discoverable facts to which the friend or family member will eventually testify — no more and no less. Since this situation will be unfamiliar to most medical experts, the following steps are critical for success:
- Carefully explain the purpose of the affidavit or cover letter.
- Educate the expert that such facts are not in evidence and may only be considered as hypothetical.
- When considering any hypothetical, instruct the expert to ascribe equal weight to the third party account and the medical record. The expert’s role is to use medical knowledge to formulate an impartial opinion based on all presented information.
- Clarify that only the trier of fact will determine validity — the expert will not decide who is telling the truth.
- Emphasize that the expert’s role is to consider all such information as conditionally hypothetical. For example, “If Fact ‘X’ is found to be true (or false), how will it affect your opinion on ‘Y’?”
- Tell the expert to call you with any questions prior to preparing a written report.
By giving your expert an early look at facts that will eventually emerge during discovery, you can save cost, strengthen the foundation of your case, and mitigate 11th hour surprises.
Elite Medical Experts provides start-to-finish litigation support by an experienced in-house team of physicians and nurses in addition to hand-selecting an expert specifically chosen for the exact needs of your case. Contact us today to secure the right medical expert for your case and get Elite’s strategic support every step of the way.
