Part II: Expert witness 101, finding and taking the case

Last month’s commentary introduced the concept of participating as an expert witness in medical-legal litigation, noting that legitimate cases could not proceed without the participation of a credible expert witness. In this month’s continuation, I offer some practical advice on several important aspects of being an expert consultant in medical-legal matters.

Advertising your services

Never actively market your willingness to review cases for attorneys. One of the ways to make the consulting experience more rewarding for you, and for the lawyers who retain you, is to do nothing to damage your credibility.

Jeffrey R. Wahl

Advertising is one way you can instantly damage your reputation in the courtroom. While hospitals and medical groups are actively engaged in advertising their clinical offerings in print and electronic media, the solicitation of consulting business could result in a line of cross-examination that would not be pleasant.

I am sure you have heard of physicians being accused by an opposing lawyer of being a “hired gun” paid handsomely for their testimony. Ironically, virtually everyone involved in the case – the judge, the court employees, the court reporter, and the lawyers on both sides – is being paid for their efforts, and in most instances, irrespective of the outcome of the case.

Advertising your services in professional journals or other locations creates the impression that you either need the business or that you would want to increase the amount of consulting you do. Either or both of those may be true, but you do not want to create the opportunity for opposing counsel to cross-examine you on your seemingly innocuous advertisement in some legal publication.

If you want to participate in legal work, the easiest way to do so is to tell some of your colleagues that you are so willing, or talk to some of the lawyers you know who do this kind of work. They will be happy to keep their eyes and ears open for cases that you can review.

Witness services

Expert witness services have become more prevalent in recent years because it has become increasingly difficult for attorneys (predominantly attorneys representing patients) to find physicians to review cases.

In recent years, expert witness services have become a big business, with many springing up in major metropolitan areas, and physicians or lawyers often run them. Like advertising your expert consulting services, working with an expert witness service could result in cross-examination by opposing counsel on that point.

With regard to getting involved with these kinds of entities, do not contact any of the services and ask to be listed as an expert witness. It is best that you are discovered by the expert service, as this will permit you to explain to a jury how you were contacted because of your particular expertise in an aspect of medicine.

Do your homework before you decide to get involved with any expert service. Talk to the owner or CEO of the service and learn about the philosophy of the company. If you have a comfort level with that, ask where they find most of their experts.

Find out how many of their experts hold academic positions at major medical schools or are department chairs at major medical centers. Ask the company for several references, both attorneys and other physicians who have worked with the company, and speak to them personally. Have the company clearly articulate its fee structure, both in terms of what you would be paid and how much money the company keeps for administration. Most importantly, never work with an expert service that ties your fee to a successful outcome in the case.

The bottom line is that if the relationship does not feel comfortable to you, do not get involved.

Creating your resume

To participate as an expert witness, you need to do certain administrative things. The first is to prepare a detailed resume. If you work in an academic institution, you probably already have prepared this document; if not, this would be a good time to do so.

Your resume should be an honest, accurate and complete recitation of your professional credentials. You should only include material that is germane to your professional education, training and experience as a physician or other health care professional. You should list the following information, at a minimum:

• Educational background: colleges/universities attended, degrees earned, scholastic honors, with dates
• Employment: chronologically, including internships, residencies, fellowships, teaching positions, private practice
• Hospital and medical school affiliations
• Professional organizations, including committee memberships and offices held
• Board certifications
• Invited lectures you have delivered
• Publications (papers, articles, letters, chapters, books) in peer-reviewed and non-reviewed media
• Editorial board participation
• CME courses taught

Your resume will be used for a number of purposes, all of which require you to be careful while you craft it. The first is that attorneys who are considering hiring you as an expert will verify some or all of the information listed. Any opposing lawyer will certainly check to make sure you are not including any fictitious entries.

If you have published in the medical literature on the subject matter of the case in which you are participating, all of the attorneys involved will likely obtain that literature and compare its contents with the opinions you provide in the case. While you might be tempted to not include on your resume a publication that could be construed as damaging to the party which has retained you, I suggest that you do not exclude it from your resume, because there are many other sources (ie, PubMed) by which such material can be discovered.

Importance of honesty

I would like to discuss two real scenarios from my practice that are illustrative on the topic of carefully formulating your resume. The first happened in an interesting medical malpractice case that I was defending.

Plaintiff’s counsel produced a report and resume from an expert witness with a prominent address in New York City. Curiously, there were two gaps in his work experience, and this physician appeared to have had medical licenses in a large number of states. During my investigation into this expert’s credentials, I discovered that he had been disciplined by the medical boards of a number of states, had his medical license revoked by several and was a defendant himself in a number of medical malpractice cases.

In an effort to find out more information about this expert, a Lexis-Nexis computer search revealed that this expert had been the on-camera spokesman for a particularly successful piece of exercise equipment, which was often advertised late at night on cable television, and was one of the owners of the company. Parenthetically, when I gave a copy of one of these somewhat humiliating television commercials to plaintiff’s counsel, the case was promptly dropped.

The second incident occurred a few years ago when I was defending a general surgeon whose patient had serious complications from a lymph node dissection in the posterior triangle for persistent lymphadenopathy. From the medical literature, I identified a suitable expert witness, a prominent head and neck surgical oncologist at a major academic medical center. His opinion was that the defendant met the standard of care, even though the patient suffered terrible complications from the procedure.

This expert had an extensive resume, including hundreds of publications with articles that supported his opinions in the case. He did not, however, list a new chapter in a recently published monograph on head and neck surgery, which had several passages that seemed to contradict the opinions he offered in his deposition testimony.

Opposing counsel discovered the book chapter even though it was not on his resume and proceeded to cross-examine this physician at trial with the content of his own chapter, which appeared to undermine his opinion, and with the fact that he did not list the chapter on his resume.

Luckily, I, too, had obtained a copy of the book. This expert was prepared to reconcile his opinion with the literature and explain that because his resume is constantly updated due to his academic requirements, the omission was unintentional. Needless to say, I won the case on the strength of this expert’s credentials and opinions.

In most states, expert witnesses are not required to keep a list of cases in which they participate as expert witnesses. However, federal court rules require expert witnesses to maintain a complete list of cases for the past 10 years.

While most medical malpractice cases are state court cases, some are filed in federal court where that housekeeping rule applies. Many other medical cases, including toxic tort cases, are common in federal court. My suggestion is to keep an active list of your cases, including those where you simply reviewed records to those where you produced a report, gave a deposition or testified in court.

Fee schedules

If you are not working with an expert witness service, where all of the financial matters are handled for you, you must create a fee schedule. You will want to set an hourly rate for record review, communication with the lawyers, medical research, writing your report, giving a deposition and testifying at trial.

Some experts have a different hourly rate for different aspects of their service; in my view, it stretches your credibility to charge more per hour for different services. Your time is worth the same, irrespective of what you are doing during that time. Also, you can reasonably request a prepayment of a retainer from the hiring attorney, in a sum equivalent to a few hours of your time.

In addition to a fee schedule, you should create a consulting agreement between you and the attorney who hires you. In that agreement, clearly state all of the terms of your engagement so that there are no unfulfilled expectations by either party. Some experts require prepayment for trial testimony, while others insist on lodging in only four-star hotels. I am not suggesting that those are required clauses in your consulting agreement, but it would be best if you and the lawyer who hires you have a clear, written understanding of all aspects of your participation.

Another item that often results in cross-examination of an expert is his or her “track record” of expert work. Many an expert’s credibility has been impeached by the revelation that the expert only testifies for physicians or patients. Let me suggest that if you have the opportunity to work for attorneys representing plaintiffs and attorneys representing physicians, you should take advantage of that opportunity. You do not want to develop the reputation, either among lawyers or in court, as one who only works for one side. Your credibility will be spared and you can maintain intellectual honesty in your work.

Questionable testimony

Attorneys who would like to use you as an expert witness are advocates for their clients. In my more than 20 years of litigation these cases, I have found my colleagues to be honest and responsible. In their efforts to zealously represent the interests of their clients, they could (honestly) ask you to give testimony or opinions that you are not qualified to give or that make you uncomfortable. To this end, in order to maintain your credibility and high intellectual standards, I have several important suggestions:

• Do not “stretch” into areas beyond your education, training and experience. For example, if you are a surgical oncologist, you probably should not be offering standard of care opinions on bone marrow transplant protocols, even though you might have some familiarity with them. The requirement for your testimony is that you are familiar with the applicable standard of care.
• Do not assume that what the attorney tells you is necessarily complete or accurate. Obtain a complete, unedited copy of all of the medical records, radiographs and other expert reports and depositions in the case. If you find that there is a conflict between the attorney’s recitation of the facts and what you see in your own independent review of the materials, you should jettison the attorney’s version and work based on what your review tells you. If you believe that you are not getting the whole truth from the lawyer, explain your concerns to the lawyer. You want to avoid a situation where it is pointed out to you, while you are testifying at trial, that you were not provided with key evidence, which could alter your opinions or undermine the basis for your testimony.
• Keep accurate records of your expert witness consulting time, both for the lawyer who hired you and for opposing counsel.
• Keep current with your medical literature review. Some areas of medicine are frequently changing, and you want to have the most up-to-date information. If literature is published that undermines your opinions, promptly notify the lawyer who hired you.
• Offer opinions that are supported by reliable medical literature. The seminal case of Daubert vs. Merrel Dow Pharmaceuticals, decided by the United States Supreme Court in 1993, and dozens of cases interpreting it establish the principle that so-called “junk science” will not be allowed in the courtroom. Before any expert opinion testimony is permitted, the trial judge “must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

Writing the report

If the lawyer who hires you to review a case determines that your opinion would be helpful to his side, you may be asked to write an expert letter or expert report. Do not be mislead into believing that your report would never be reviewed by anyone outside of the parties in that case or their lawyers. In fact, the use of expert reports is not limited to the case in which they are created. Organizations of trial lawyers representing plaintiffs (American Trial Lawyers Association) and defendants (Defense Research Institute) have extensive databases of expert resumes, transcripts and reports.

Attorneys frequently share expert materials, in order to determine whether a particular expert would be appropriate for a case, or to help prepare cross-examination of an opposing expert. Be very careful with your choice of language in your report. It is likely that every word of every sentence will be scrutinized at some time during the case.

Be prepared to justify your observations, opinions and conclusions. Your report is a recitation of your opinions, not someone else’s. Witnesses are not permitted to be the mouthpiece for someone not testifying (the legal doctrine of hearsay), so do not discuss the opinions of your colleagues in your report. In the past few months, I received a report from an opposing expert from a major academic medical center who commented in his report that he had essentially “shopped” his opinions around among his colleagues and they agreed with him. I think this demonstrated a sign of poor preparation by the expert and uncertainty about his own opinions.

I hope that the advice in my last two columns has eliminated some misconceptions about participation as an expert witness in medical cases and has provided you a good framework for establishing yourself as a credible, competent participant in the legal process.

For more information:

• Jeffrey R. Wahl, JD, is a Healthcare Risk Management and Liability Attorney practicing in Cleveland. He has worked with several startup companies involved in health care technology. He also serves on the Health Policy, Patient and Practice Issues Section of the Hem/Onc Today Editorial Board. He can be reached at jeffwahl@mindspring.com.