Is 'expert' misleading jury, or outright lying?
[Editor's note: This is the first part of a two-part series on expert witness testimony in medical malpractice cases. This month, we cover possible approaches if witnesses for the plaintiff give inaccurate testimony. Next month, we report on how a witness can be prevented from testifying and what actions could put physicians at risk for being accused of witness tampering.]
Is the plaintiff's expert witness deliberately misrepresenting the standard of care? "Expertise, alone, does not guarantee truthfulness or candor," says Dan Groszkruger, JD, MPH, principal of rskmgmt.inc, a Solana Beach, CA-based healthcare risk management consulting firm and former director of claims and litigation management at Loma Linda (CA) University Medical Center. "Once an expert witness is deemed qualified by a court, there are a number of counter-measures useful to identify inaccuracies, or outright lies."
A skillful defense attorney will do the following, says Groszkruger:
• Carefully identify exactly what the witness reviewed in preparation for giving testimony.
"Actual time spent reviewing background information, documented in the witness's own billing records, can be quite illuminating if obviously insufficient to gain an adequate familiarity with the patient's condition and treatment," he says.
• Identify all assumptions upon which the witness has relied in arriving at opinions and conclusions.
"The witness may have improperly disregarded, or failed to give appropriate weight to, key facts based on the witness's assumption that such details were not pertinent to the witness's investigation," he says.
• Compare the witness's proffered testimony in this case to his or her testimony offered in previous, similar lawsuits.
"Deposition transcripts documenting how the witness testified in previous cases can be located and copied from other defense colleagues, or from other medical malpractice defense Sources such as societies and associations of defense attorneys who share such information," says Groszkruger.
Address inaccuracies
The first opportunity to directly address inaccurate testimony is on cross examination in the expert's deposition, says Maureen M. Vogel, JD, a shareholder with Polsinelli Shughart in Kansas City, MO. Here are some ways of doing this:
• The defense lawyer will pin down the expert's opinion and see how far he or she will take it.
Vogel says defense lawyers will ask the witness questions such as "Is the opinion you are offering an absolute in your profession?" "Would you expect that there are other physicians sharing your expertise who, when presented with the same facts, would disagree with your opinion?" and "Would you be surprised to learn that there is medical literature disputing the opinion?"
• If the witness offers testimony based only on the plaintiff's version of events and there are factual disputes, hypothetical questions may be asked.
For example, says Vogel, the attorney can ask the witness to assume that the physician's version of events is true, and if so, wouldn't he or she agree that the standard of care was met?
• The witnesses' claims about their own background and credentials will be explored.
Witnesses might testify falsely that they passed boards, graduated from a certain school, or were actively engaged in the clinical practice of medicine a certain percentage of the time to qualify as an expert under the state's law.
"In these cases, the defense can develop evidence from outside Sources to dispute the testimony," says Vogel. "This evidence can be used in summary judgment motions, motions to strike the expert's testimony, or to discredit the witness at trial."
Sources
For more information on testimony of expert witnesses, contact:
- Karen Domino, MD, MPH, Department of Anesthesiology and Pain Medicine, University of Washington, Seattle. Phone: (206) 616-2673. Email: [email protected].
- Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc., Solana Beach, CA. Phone: (619) 507-0257. Email: [email protected].
- Maureen M. Vogel, JD, Shareholder, Polsinelli Shughart, Kansas City, MO. Phone: (816) 395-0605. Email: [email protected].
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