BY: ELLIOTT B. OPPENHEIM, MD, JD, LLM HEALTH LAW

In forty-two years of experience in medical negligence and criminal defense litigation, I have learned that often you can use the opposing party’s medical expert witness as your witness. Many lawyers, when they confront medical expert testimony or evidence, instinctively hire their own expert. This immediately sets in motion some consequences. But this approach may generate risk and, in fact, can sink your case. You never know what your own expert may say!

What I propose here relates to prosecuting a medical negligence case, for the Plaintiff, or to defending a criminal case, for the Defendant. Jurors abhor a “battle of the experts.” Whom can they trust? Often, the answer, for them, is “neither.”

First, jurors mistrust experts, in general. They see them as “bought and paid for.” Jurors have been polluted and jaded by the media and TV and the movies portray experts as convenient mouthpieces willing to say anything… for a price. Consider that your best expert may be the opposing side’s expert. You need to start with a valid scientific point of view. You can’t make a silk opinion out of an invalid scientific premise.

Unless your scientific knowledge is fluent in this field, I suggest that you do hire a physician in the respective field and ask them to help you use the science to controvert the opposing testimony.

In a criminal case, in an autopsy, for instance, you examine the Medical Examiner. Here, you want to create reasonable doubt about how the autopsy was done, faulty protocol, or doubt about the interpretation of the data, faulty interpretation. The cross-examination would probe these weak points. You would need to know the various standards and point out defects at each line of the record. This is a meticulous and exacting process but can be a case winner.

When you work in a medical negligence setting, you need to know the applicable standards of care and all of the medicine surrounding the issues. In medical negligence, you are able to examine the treating physician and the defense expert(s). Unless you are very skilled at the level of an experienced physician, you will need a medical consultant. This approach can be catastrophic if, as a lawyer, your medical skills are general and not specific.

In a medical negligence case, for instance, let’s suppose that a defense expert does not agree with your client’s point that delay in the ER resulted in harm. Your pivotal position is that this delay doomed your client to disaster. Armed with established medical facts and national standards, what professional organizations recommend, the hospital bylaws, policies, procedures, rules and regulations, the Defendant’s testimony, and a discord in the Defense expert’s position, you bring your cross-examination. How specific is the defense opinion and is it inconsistent with the various standards? You convincingly show that on a more probable than not basis, delay caused harm. You need to do this, though, NOT in a general sense. “Oh, common sense tells us that…” fails. You use the medical records and all of the standards. In general, it is unlikely that opposing counsel will be nearly as prepared as you will be.

This raises an important point. To paraphrase an expression: Facts and standards talk, generalities and global assertions walk.

In general, never “argue” with an expert. This is their home court. Unless you are a physician in that particular field, he will dance rings around you. You have control over what you have prepared. Stick to it. Perhaps at the very end, with all of the responsive questions finished, ask about any inconsistencies… but be careful. Trial tip: if you do this, and go to trial, have your expert consultant available by text, cell phone, or laptop by internet, or even Skype.

If you try this, remember to insist upon a real answer: yes, no, I don’t know. Then, once you have that, the expert can explain. The failure to obtain a definitive answer can doom an appellate run, if necessary. The weakness comes where your witness’ response is “mushy.” What did he really say? When you have a “real response,” then you have the strength to continue your cross-examination and you have what you need for appeal. Careful, “going head to head” with a doctor. This very risky unless you know where you are going.

Another important point is that the attorney must have a command of legal expertise to “close the deal:” motion to exclude the expert on credentials and opinion in any speculative areas. In modern standards, all states have rules on the admissibility of scientific evidence. One uniform requirement is that the opinion must not be speculative. Where you have an expert who states his opinion but does not fortify it with medical treatises, articles, papers, then that opinion fails as speculative. At the close of the cross-examination, seek to exclude the expert as unqualified to express the opinion, if relevant, and then seek to exclude the opinion in any area where the expert was unable to come forth with support from the medical literature.

You may save considerable litigation funds where you do not have “yet another” expert, and a jury is likely to find your cross-examination of opposing witnesses based in science convincing. On the other hand, where you need to bring out specific scientific information not included in the opposing physician’s testimony, the opposing physicians will be of little help. In such cases, you may need your own expert.