Battle of the Experts: Be Truthful and Direct
When experts on either side of a lawsuit alleging ED malpractice make misleading or false statements, this reflects badly on the whole legal system, according to Ken Zafren, MD, FAAEM, FACEP, FAWM, EMS medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center.
"The expert is assisting the finder of fact, and has to be truthful," he says. Here are recommendations for EPs involved in expert witness work:
Don't be intimidated by an opposing expert's credentials.
These may not carry as much weight with a jury as you might think, since credentials don't necessarily make the expert more believable as a witness. In one case, Zafren testified for the plaintiff, while a prominent emergency medicine textbook author testified on the defense side.
"I'm not going to be intimidated by these people because I reviewed the case and I have my opinion," he says. "Unless they can come up with something that is going to change my opinion, their opinion is not worth any more than mine."
Don't try to show off your knowledge.
If the jury likes an expert witness, says Zafren, they tend to believe he or she is being truthful. "How do you get the jury to like you? You can't go on the stand and try to impress people with your superior knowledge. It doesn't work," he says.
The expert should comfortably explain the medicine involved in the malpractice suit, in a language that laypeople will understand. "You tell them medically what's going on, then explain the medical terms in lay language," says Jonnathan Busko, MD, an EP at Eastern Maine Medical Center in Bangor and medical director of Maine EMS Region IV. "You don't want to be so humble that it seems like you don't know medicine either."
When addressing a jury, Busko recommends speaking as though you were teaching an introductory medical course to a group of students in a lecture hall. "They have to be able to understand medically what was going on, but they don't come in with a baseline medical knowledge," he says.
Be objective from the very start.
If experts don't approach a case objectively, they may appear to be giving answers simply because these reflect the need of whichever side they're working for.
"It's very hard, once you are involved with a case one way, to back up and look at it another way," says Busko. "At least initially, consider yourself an expert for 'the case,' not one side or the other."
Don't attack the opposing expert directly.
It is the attorney's job to discredit the opposing witness, and the expert's job to present credible information, according to Busko.
There are many ways in which an attorney can subtly remind the jury that the plaintiff's expert has never practiced in the ED, for instance. "The attacking of another expert witness will make a jury uncomfortable," says Busko. "And once they are uncomfortable with an expert witness, they become uncomfortable with their testimony."
In one case, Zafren watched an opposing expert give incorrect information on a frostbite case, when the last case of frostbite the expert had seen was 20 years ago as a resident. At the same time, the opposing attorney was challenging Zafren's own testimony.
Instead of saying that the other expert had no idea what he was talking about, Zafren explained, in straightforward terms, the reasons why he disagreed with him, allowing the jury to learn more about his own expertise in frostbite.
"But I couldn't do it in a way that put the other guy down," he says. "Their expert is not on trial. You have to present to the jury whatever information you have that contradicts what that person said."
Sources
For more information, contact:
Jonnathan Busko, MD, MPH, FACEP, Eastern Maine Medical Center, Bangor. E-mail: [email protected].
Ken Zafren, MD, FAAEM, FACEP, FAWM, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. E-mail: [email protected].
When experts on either side of a lawsuit alleging ED malpractice make misleading or false statements, this reflects badly on the whole legal system, according to Ken Zafren, MD, FAAEM, FACEP, FAWM, EMS medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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