Seven Mistakes Attorneys Often Make With Medical Malpractice Cases
With the rise of statutory changes limiting the damages available in medical malpractice actions, many attorneys must think twice before bringing a medical malpractice case against a hospital or doctor. Medical malpractice cases are increasingly expensive to litigate in light of the many technical and complex issues usually involved. In most cases, multiple experts must be retained on various issues, including the standard of care and causation, and the extent of the damages. As such, attorneys litigating these cases on both ends must be efficient with the time and money they spend litigating a case and not make the following costly mistakes.
MISTAKE #1: FAILING TO THOROUGHLY ANALYZE A CASE BEFORE ACCEPTING IT.
Every experienced litigator knows that medical negligence cases are rarely as simple as they may appear. Complex subject matters, debatable standards of care, and precarious links to causation often conspire to sabotage both plaintiff and defense. The essential key is a meticulous and realistic analysis of the elements of negligence in order to develop a strategic plan. Hiring an “expert” that simply reinforces your own preconceptions is a sure road to disaster. Indeed, successful attorneys know that a negative or contrary opinion from an expert is often more valuable than a positive one. With so much at stake, the quality of your expert is one of the most important factors in achieving success.
MISTAKE #2: UTILIZING AN EXPERT WHO IS NOT BOARD-CERTIFIED BY THE AMERICAN BOARD OF MEDICAL SPECIALTIES
When credibility and professionalism is paramount, it is surprising that so many firms utilize experts with questionable credentials. Although the internet has provided countless means by which any “expert” can purchase “board certification”, there is only one universally accepted gold-standard for Board Certification: The American Board of Medical Specialties. The ABMS is a non-profit organization that oversees standards and certification for all twenty-four recognized medical and surgical specialties. Truly Board-Certified specialists are known as Diplomates and are identified by the words, “American Board of…” preceding the name of their specialty. For example, “Diplomate of the American Board of Emergency Medicine”. Other copycat “boards” employ similar sounding names though they may not use the designation of “American Board”. A Board-Certified actively practicing physician is the only expert with whom an attorney should consult. Utilizing an expert with questionable credentials may prove fatal to your case.
MISTAKE #3: NEGLECTING TO MASTER ALL OF THE RELEVANT MEDICAL FACTS AND TERMS.
Healthcare negligence cases span the breadth of medicine and science. It is critical for you to have a thorough working knowledge of all medical facts and terminology that pertain to your case. This expertise translates into comfort and confidence that strengthens your authority and provides a competitive edge. Although medical terminology may be found in any book, having your expert work with you to provide case-specific explanations is a time-saving and vital requirement.
MISTAKE #4: NOT AGGRESSIVELY PREPARING FOR THE EXAMINATION OF WITNESSES AND PARTIES.
Although all attorneys prepare an outline for depositions and trial, successful litigators often rely upon experts for strategic planning. The expert may be the attorney’s designated expert, or the attorney may elect to use an additional non-testifying expert. With their reports and analyses typically protected by work-product rules, non-testifying experts are free to assist in all aspects of case preparation. They provide insight that complements the work of the testifying expert and they can be an excellent source of probing and pivotal questions for use in deposition and trial. A well-planned and executed strategy fortifies your case from the outset. It is imperative to work with one or more experienced experts to get you there.
MISTAKE #5: MISSING THE OPPORTUNITY TO HAVE DIFFICULT CASES INDEPENDENTLY REVIEWED BY A NON-TESTIFYING EXPERT.
Attorneys are often excited to receive a favorable expert review on a challenging case. Although this exhilaration may be justified, a “challenging” case warrants a second opinion, particularly when the issues are complex and the expenses are high. In such instances, many attorneys elect to secure an additional opinion from a non-testifying expert. A second opinion ensures that the first expert’s analysis is on target and may give supplemental insight into the case. Non-testifying experts often remain with the case to serve as strategic consultants whose work may be protected from discovery by work-product rules. This approach is more costly at the outset but nearly always results in long-term savings in terms of both time and money.
MISTAKE #6: INCOMPLETELY ANALYZING EVERY REFERENCE ARTICLE CITED BY THE OPPOSING EXPERT.
Both expert witnesses and litigators frequently misquote the very literature that they cite. Subtleties in phrasing and statistical analysis may lead to widely disparate interpretations of the same article. Valuable strategic opportunities are missed when these errors go unchallenged. Crucial advantages are gained when an experienced expert carefully reviews all citations with respect to the case.
MISTAKE #7: FAILING TO RECOGNIZE RECORDS PRODUCED BY AUTOMATED TRANSCRIPTION SYSTEMS.
The use of automated medical transcription systems is clearly on the rise. These systems utilize a transcription program to convert a physician’s spoken report into a typed medical record. Despite their convenience, the reports generated by these systems may not accurately reflect the clinical encounter. This occurs when the physician employs a “template” — a set of standardized default statements that are entered into the medical record. Although the record appears complete, close scrutiny may reveal statements that are inaccurate or inapplicable. For example, when a physician dictates, “Normal exam,” the computer may insert an entire series of statements such as, “The chest finds the lungs to be clear and the cardiac tones are regular without murmur. The abdomen is soft, active, and benign.” In other words, simply by saying, “Normal exam,” a seemingly complete report can be created. The problem arises when these default statements are factually inaccurate, inapplicable, or implausible. Once this occurs, plaintiffs may be confounded by a chart that appears to be bulletproof while defendants may worry that their gratuitous documentation will damage their credibility. An experienced and objective expert will be familiar with these systems and will work with counsel to highlight both strengths and weaknesses.
Where to find the Best Medical Expert Witness:
Many attorneys rely on word of mouth to find the best medical expert witness. However, unfortunately that can not always make the best referral source. When searching for a medical expert witness, an attorney should thoroughly evaluate their CV and experience, and compare them to other potential expert witnesses. You can find the best medical expert witnesses in our expert witness directory.
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