Maine Medical Malpractice News
A Hovermale Law Publication
Issue #8 Fall 2004

EXPERTS
Dealing with experts is a fact of life in medical negligence cases. While there may be situations where expert testimony is not needed, those cases are so few and far between that in every medical negligence case it should be assumed that expert testimony is going to be required on at least the issues of negligence and proximate cause. The following is a quick summary of the law on experts as it applies to medical negligence cases. Following that we will discuss some of the practical problems in dealing with expert witnesses.

THE LAW
Expert testimony is ordinarily essential to establish negligence of a physician and that the negligence was the proximate cause of injury . Downer v. Veilleux, 322 A.2d 82 (Me. 1974).

Expert testimony is needed in any professional negligence case unless the negligence and its harmful results "are sufficiently obvious as to lie within common knowledge". Jim Mitchell and Jed Davis, PA v. Jackson, 627 A.2d 1014, 1017 (Me. 1993) quoting Cyr v. Giesen, 108 A.2d 316, 318 (Me. 1954). One recent example of a case where expert testimony was held not necessary was Walter v. WalMart Stores, Inc. 748 A.2d 961 (Me. 2000). The Law Court held that a pharmacist filling a prescription with the wrong drug does not require expert testimony on the issue of negligence.

Whether a witness is an expert is within the sound discretion of the trial judge. Hanson v. Baker, 534 A.2d 665 (Me. 1987)

A member of one specialty can testify as an expert against a physician in another specialty if that expert knows the standard of care and demonstrates that to the trial judge. Hauser v. Bhatnager, 537 A.2d 599 (Me. 1988).

The standard of care is not defined by the quirks of local practice. The standard of care is national. Taylor v. Hill, 464 A.2d 938 (Me. 1983). McLaughlin v. Sy, 589 A.2d 448 (Me. 1991).

PRACTICAL CONSIDERATIONS
Once the client has been interviewed and the medical records have been carefully reviewed, the next big hurdle for a plaintiff in a medical negligence case is finding the right experts. The potential population of physicians from whom experts can be chosen can be broken down into the following categories:

1. Doctors you know whom you can call and present a synopsis of the situation;
2. Doctors you have worked with before in cases;
3. Doctors who have written and published in the field;
4. Cold calls;
5. Expert services.

The easiest source to access is those physicians you know or have worked with before. The value of being able to pick up the phone and call someone to run the case by is incalculable. However, some physicians are happy to talk to you on the phone and give you their thoughts about a case but they do not want to go on to be formally disclosed or testify. It is wise to find that out up front.

For the right case, searching the literature and finding the leading authors in the field can be very fruitful. You will probably get a lot of rejections from potential witnesses you identify, but many of these people are very well qualified, may be in academic institutional settings, and may have the time and the inclination to get involved.

Witnesses who come through a service are always subject to the "hired gun" line of cross-examination. However, many of these people are very well qualified and sign up for the services simply to relieve themselves of the administrative end of expert witness testimony.

Being an expert in a medical negligence case requires a lot of time. Most of these cases involve the witness having to read hundreds if not thousands of pages of medical records, deposition transcripts, and other material produced in discovery. The opinion of the expert must be grounded on a thorough understanding of the details of the medical record and later the deposition testimony. There is no substitute for hard work. Therefore, when you are talking to the expert for the first time, it's best to be up front about the time commitment and the effort that will be involved in order to do a good job. Even if a doctor has acted as an expert in the past, it is not wise to assume that he or she will approach the case the same as you. You cannot assume that your case is as important to the expert as it is to you and your client. It isn't. Physicians who have a clinical practice are very busy and have a lot of demands on their time. Part of the job of the plaintiff's lawyer is to persuade the expert to make enough time and to commit enough effort to the review of the chart in order to ultimately withstand the rigors of what will no doubt be a very competent cross-examination.

While the case law cited above indicates that you don't have to have an expert in the same field as the physician your are suing, it is probably better to have this matched up as closely as possible. As a general rule, a case involving a defendant neurologist should have a neurologist expert. A case involving nursing issues should have a nurse as an expert. A case involving family practice can either have an internist or a family practice doctor since those areas overlap so much. A case involving surgical negligence needs to have a surgeon acting as an expert.

We will talk more about the practicalities of expert witness handling in the next issue. However, as a final note here, experts are expensive. Hourly fees can range up to a thousand dollars. Some experts charge a flat fee for depositions. I've seen this as high as $5,000.00. Some experts charge a flat fee for appearance and testimony at a panel hearing. I've seen this as high as $10,000.00. On top of this, if you have an expert from "away" you will have to pay their travel expenses including plane fare and lodging. It is obviously important to discuss these issues on initial contact and get them out on the table.

News Items
In October 2004, Health Partners, a Minnesota health insurance company announced it would not pay a bill of a doctor or a hospital when it is the result of a medical mistake. Its contracts apparently won't allow the patient to be billed for any unpaid amount. Health Partners' medical director said that the purpose behind this is to prevent the victim of a medical mistake from suffering additionally by being billed for the mistake.

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A recent report issued by the National Academy of Sciences concluded that many hospitals and nursing homes are endangering patients by allowing or requiring nurses to work more than 12 hours a day. Long hours cause fatigue, reduce productivity, and increase the risk that the nurses will make mistakes that harm patients. The report recommended that nurses should not work more than 12 hours in any 24 hour period or more than 60 hours a week.

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The Pennsylvania Supreme Court has ruled that a plaintiff's claim for fear of recurrence of cancer can be presented to the jury for consideration in a failure to diagnose cancer case. They also held that the possibility as opposed to the probability of recurrence of the cancer is also an item of damage. An expert can be allowed to explain the possible future effects of an injury with less definiteness than is required of opinion testimony on causation. The summary holding is that evidence of the increased risk or fear of recurrence of cancer is admissible for the purpose of establishing damages in a medical malpractice case alleging a physician's negligence in failing to properly diagnose the disease. Zieber v. Bogert, 773 A.2d 758 (Pa. 2001)

Next Issue: Experts - Part II