Does expert say your care was negligent?
Does an insurance company's expert say your care was negligent, but you disagree? Seek legal advice and evaluate whether a conflict of interest with the insurer exists, advises Damian D. Capozzola, JD, an attorney with Crowell & Moring in Los Angeles and co-author of Expert Witnesses in Civil Trials: Effective Preparation and Presentation.
"The physician may argue that he or she is entitled to insurer-funded independent counsel, with an implied right to an insurer-funded independent expert as well," says Capozzola.1,2 He gives these recommendations:
• Consider retaining independent counsel and an independent expert privately, even if under the physician's particular circumstances or the law of the applicable jurisdiction the insurer is not obligated to fund such fees and costs.
"Such an expert could analyze the underlying facts, and hopefully reach a strong and independent conclusion that the care provided was not negligent," Capozzola says.
If physicians are unable to secure an independent expert who, after reviewing the facts, is willing to testify that the care was not negligent, they "should think seriously about trying to settle the matter quickly and quietly," he says.
• Work with attorneys to attack an expert's opinion based on his or her experience, data gathering and testing, and reasoning.
Communications with an expert might be discoverable by the other side in depositions, should the case progress that far, cautions Capozzola. However, he says to take an active role in ensuring your own expert has a full command of the relevant facts, good and bad.
"Even the most experienced expert is coming to the case cold, does not have a first-hand understanding of how the case progressed and can miss key facts," he says. "Indeed, some experts become complacent over time and are especially vulnerable to not gathering all the relevant materials or overlooking key details."
The expert's opinion should be based on a complete mastery of all the favorable evidence, with consideration of how any negative evidence might be reconciled with an overall opinion that remains favorable for the physician, he says.
Capozzola says that physician defendants can collaborate with their own expert and counsel to explore these questions:
— Does this particular insurance company expert really have the right experience in this particular area of medicine to have a qualified opinion? Or is this expert's experience such that he or she is essentially a paid "mouthpiece" for this particular insurance company and, therefore, is biased?
— Has the insurance company expert reviewed all of the necessary data and performed the right tests on that data?
— Even if the insurance company expert has the right experience and has analyzed the right data, has he or she employed the right reasoning?
— Is it possible that reasonable minds might disagree whether the care provided was negligent or not?
"These responses can lead to leverage the physician can use to extract concessions to support the argument that the care provided was not negligent," Capozzola says.
• Avoid delaying or stalling tactics, hoping the problem will simply go away.
"Get out in front of expert retention and analysis issues early," urges Capozzola. "Finding the right expert and working with that expert to develop a strong and credible analysis takes time." Involving an expert early will help direct the investigation or case, leaving ample time to obtain information that the expert needs to credibly and favorably bolster his or her analysis, he says.
"Delaying the retention of an expert until late in the proceedings may result in such opportunities being foreclosed, due to the passing of case deadlines or due to records that were previously available being lost or destroyed," Capozzola says.
References
- Cal. Civ. Code Section 2860(a).
- San Diego Navy Fed. Credit Union v. Cumis Ins. Society, Inc., 162 Cal. App. 3d 358 (1984).
Source
- Damian D. Capozzola, JD, Crowell & Moring, Los Angeles. Phone: (213) 443-5503. Fax: (213) 622-2690. Email: [email protected].
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