TRIAL

May 2004, Vol. 40, No. 5

TRIAL Magazine is the official magazine of the Association of Trial Lawyers of America.

Medical negligence

Preparing for the defense medical expert’s deposition

Betsey Herd and Janabeth Evans (Taylor)

Conduct in-depth research online and through formal discovery before deposing your opponent’s witnesses to expose weaknesses and bias in their testimony.

‘Under penalty you shall bring with you...’

Here is a general list of information to collect for the medical expert’s deposition. Consider adding these items to your subpoena duces tecum for deposition. Request copies of • the expert’s license to practice medicine • certificates, memberships, and awards • applications for continuing medical education credits for seminars and courses attended • the expert’s Ph.D. thesis • published abstracts and articles • materials presented at professional meetings covering the issue in your case • patents held by the expert or his or her employer (The Statement of Claims in patent documentation may explain what hazard the invention should ameliorate; for example, a needle guard may be intended to prevent perforation of vital organs.) • a list of authorities in the lawsuit’s subject that the expert deems to be reliable • all documents provided to the expert for review in the case. —Betsey Herd and Janabeth Evans (Taylor)

Medical negligence cases can be among the most complex to try, and preparing for them can require an enormous amount of time and effort. By gathering information about the defense’s medical expert before taking his or her deposition, you can make the best use of the time you spend asking questions.

A combination of independent research, most of which you can conduct online, and formal discovery requests will provide the best background for deposition.

Go online for information

Basic facts about a medical expert, such as academic training and credentials, articles and publications, ethical guidelines to be met, and disciplinary actions and litigation, can be reaped from the Internet. Some general information will even appear in a Google search (www.google.com).

You should also check the professional and litigation history submitted by the adverse expert witness against databases of expert testimony and other information. You may discover omissions or misinformation.

The ATLA Exchange (www.exchange.atla.org), the association’s research and litigation support service, has databases containing depositions, court documents, case abstracts, and more. Association members who are plaintiff lawyers can search the Web site for free, and several pricing plans are available for obtaining documents.

TrialSmith (www.trialsmith.com), formerly DepoConnect, is another online databank. A single search can provide information from depositions and court testimony, messages from list servers across the country, medical database searches, and public records. The service offers several subscription plans.

The National Association of State Jury Verdict Publishers (www.juryverdicts.com) publishes jury verdict summaries that contain detailed litigation information collected directly from the attorneys who tried the cases. The Web site also holds an alphabetical directory of expert witnesses containing names, areas of expertise, and publications in which an expert has been referenced. Information from the “Cases Testified” section of the site can be used to select or challenge an expert.

Although you must subscribe to use Westlaw and Lexis, you can search them for testimonial history information in any state court, as well as the federal courts. For example, you might find that an expert you are preparing to depose failed a Daubert challenge in the same area in which the defense is offering his or her testimony in your case.

Contact state trial lawyer associations for information about experts. Many of these groups have their own databases of expert information. A listing by state, with links to association home pages and phone numbers, can be found at www.atla.org/ActivistCenter/Tier3/StateAffairs.aspx.

What to look for

You must have at least the defense expert’s curriculum vitae for your research before the deposition. Draw up a list of other information to gather, and consider submitting it as a formal document request; that will avoid the argument that you have not given the defendant reasonable notice for document production. Make sure you formally request copies of all documents the defense has provided to the expert for review, and ask that they be produced for review at the deposition.

To be thoroughly prepared to question the adverse witness, gather information about the expert in the following areas.

Academic training and credentials. Verifying an expert’s qualifications is an essential first step.

• Subpoena the expert’s transcripts. You should get transcripts from every college or university where he or she received medical training.

Consider the timing of this request, since you may want to allow the expert to commit to a position regarding academic performance. If you obtain the actual transcripts and learn that the expert has misrepresented his or her grades or accomplishments, then you have the ability to impeach the expert at trial. One attorney using this tactic said he learned that a defense expert had attended school by mail.

• Search for board certifications. The American Board of Medical Specialties (www.abms.org) has a database that you can search by physician name. Registration is free.

General information databases will not provide the number of attempts a physician has made to receive board certifications. However, individual Web sites for medical specialties often do provide more complete information, as well as practice standards and guidelines. For example, the Web site of the American Board of Psychiatry and Neurology (www.abpn.com) walks a subscriber through the process for requesting board status information and provides a request form, which must be submitted in writing and accompanied by a $35 fee.

• Request written verification of the expert’s license. Contact the medical boards for the states in which the expert is licensed. The Federation of State Medical Boards lists state boards, with contact information, at www.fsmb.org.

• Verify that your adverse expert is not spreading false medical information. Visit www.quackwatch.org, a database that contains exhaustive lists of “quacks,” FDA warning letters, regulatory actions, and “nonrecommended” sources of health advice.

Articles. Look for articles written or cowritten by the defense expert in your case’s subject area. Articles that are not referenced on the expert’s curriculum vitae often can be obtained on the Internet.

• The PubMed database (www.ncbi.nlm.nih.gov/PubMed), which is part of the National Library of Medicine, was designed by publishers of biomedical literature as an access and reference tool. It contains citations and provides links to full-text journal articles on the Web sites of participating publishers. Some publishers even supply their citations electronically prior to publication. Note that some journals require user registration and a fee to access the full text of their articles.

• The MD Consult database (www.mdconsult.com), founded by a group of medical publishers including Mosby and W.B. Saunders, integrates peer-reviewed resources from more than 75 publishers, medical societies, and government agencies.

The Web site offers full-text articles from 40 respected medical reference books covering a variety of specialties, 50 medical journals, and Medline. The database also holds more than 1,000 clinical practice guidelines, as well as comprehensive drug information from United States Pharmacopeia that goes beyond the scope of the information provided in the Physician’s Desk Reference.

The service charges an access fee of $9.95 a day, $24.95 a month, or $219.95 a year. A free 30-day trial membership is available.

Ethical standards. Many professional organizations have ethical guidelines that include standards for testimonial opinions. Knowing these standards can help the plaintiff lawyer establish a defense expert’s lack of knowledge, especially if he or she is unaware that the standards exist. An expert may also ignore or refute the standards in order to support the defendant.

• The American Academy of Forensic Sciences (www.aafs.org) includes a written code of ethics in its bylaws. The code prohibits making “any material misrepresentation of education” or “data upon which an expert opinion or conclusion is based.”1

• The American College of Emergency Physicians (www.acep.org) has established guidelines for expert witnesses and an “expert witness reaffirmation” statement.

The guidelines require that an expert witness be willing to submit his or her deposition testimony to the organization for peer review. False, fraudulent, or misleading testimony can expose the physician to disciplinary action by the college. In 1997, the college adopted a code of ethics, which is posted on its Web site.2

• The American Medical Association (www.ama-assn.org) also places its code of ethics on the Internet. The code contains a “fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions.”3

The expert’s opinion of the defendant’s care may not support these ethics, or you may discover that the defendant doctor did not meet his or her duty to inform patients.

• The American Academy of Neurology (www.aan.com) posts not only a code of professional conduct, but also a list of position statements that include “qualifications and guidelines” for members serving as expert witnesses.

Disciplinary actions and litigation. Occasionally, you find that the defense’s medical expert has a history of personal or professional litigation that makes the defense lawyer who retained the expert witness uncomfortable. This information can, of course, be used to attack the witness’s credibility.

In order to find information on legal actions, search dockets where the expert is located. Many state and county court clerks’ offices make their docket archives available online. A list of electronically accessible clerks’ offices can be found at www.ncsc.dni.us/NCSC/TIS/TIS99/PUBACS99/PublicAccesslinks.htm. Search both the criminal and civil dockets, using the expert’s name as both a plaintiff and a defendant.

Also, check the expert’s disciplinary record. Questionable Doctors (www.questionabledoctors.org/intro.cfm) is a comprehensive, publicly available databank of doctors who have been disciplined by state medical boards and federal agencies in the past 10 years. It contains data on disciplinary actions for medical incompetence, wrongful prescribing of drugs, sexual misconduct, criminal convictions, ethical lapses, and other offenses.

Another searchable database, AIM/DocFinder (www.docboard.org/doc finder.html), contains licensing background and disciplinary information for physicians and other health care practitioners.

Formal discovery requests

After you have exhausted all possible sources of information about the opponent’s expert, draft your interrogatories.

Use form interrogatories following state rules and Federal Rule of Civil Procedure 26(a)(2) to require the defense to set forth its expert’s generalized opinions and the minimal information going to bias. The federal rule requires disclosure of the expert’s opinion in a written report prepared and signed by the witness.

In addition, many states allow discovery of financial earnings from litigation, the relationship between the defense law firm and expert witness, and the relationship between the insurer and expert, even if the defendant is the insured.

Some states have allowed specific inquiry into the division of expert witness litigation earnings. Others have not. For example, the Pennsylvania Superior Court has upheld objections to questions regarding how often the expert witness was retained to testify, the amount he or she was paid in other cases, and whether the majority of the expert’s professional time was spent “rendering assistance to lawyers.”4

More commonly, however, state courts permit inquiry at deposition and trial into the amount of compensation an expert derives from testifying.5 A Florida court ruled that when this type of information is sought, courts should weigh the interests of the cross-examining party in disclosing bias and generally allow the discovery.6

The Kentucky Supreme Court has held that an expert physician’s annual income related to litigation work, and the percentage of his or her general practice that this income constitutes, is discoverable and admissible to show bias.7

In another case, a Florida appeals court removed any doubt about whether a plaintiff could obtain information about an expert witness’s relationship to an insurer, even when the insurer is not a party to the lawsuit. The court recognized that the insurer, in providing a defense for its insured, acts as the insured’s agent, as does the defense attorney. Thus, the relationship between the insurer and the expert witness is discoverable.8

In South Carolina, under the authority of Yoho v. Thompson, a party may obtain 1099 tax forms, past expert reports, and documentation pertaining to the cases for which an expert has been retained.9 An expert who does not provide the discovery can be stricken. Yoho was reversed, but the state supreme court upheld the “substantial connection” analysis and allowed evidence to show the expert doctor’s relationship with the underinsured motorist’s carrier and the doctor’s possible bias in favor of the insurer.10

To show bias, New Mexico and Virginia courts have also admitted evidence of an expert’s compensation paid by the defendant’s liability carrier.11 In Sawyer v. Comerci, for example, the expert witness had testified for the insurer in the past, specifically for the defendant doctor. The court found that there was a “substantial connection” between the witness and the insurer.12

In contrast, Michigan courts have not allowed proof of insurance company payments to be directly introduced into evidence. However, those courts have admitted evidence of the number of cases in which the expert was consulted, the fact that consultations were all for the defense, and the fact that the expert had been previously hired by the defense firm and other defense firms in the state.13

In some states, the expert must provide a testimonial history for the last three years if he or she wishes to testify in court.14 Unfortunately, many defendants respond that they don’t have or don’t know this history, and many judges are reluctant to seriously consider striking an expert for not providing it until you have exhausted other attempts to obtain it. You may be able to get a testimonial history by deposing the custodian of expert witness’s records, either orally or in writing.

Researching the defense medical expert before you take his or her deposition will focus your line of questioning and help you uncover areas of potential bias in favor of the defendant. Keep in mind that the defense expert is not independent. Demonstrating bias, whether it is financial or based on loyalty to your opponent, helps the jury remember to be skeptical of the testimony.

Notes

1. THE AMERICAN ACADEMY OF FORENSIC SCIENCES BYLAWS, CODE OF ETHICS AND CONDUCT, art. II, §1(b), (c) (2000).

2. See also American College of Emergency Physicians, Expert Witness Guidelines for the Specialty of Emergency Medicine, 38 ANNALS EMERGENCY MED. 486 (2001).

3. AMA CODE OF ETHICS F-8-12 principle II.

4. Leaphart v. Harvey Hubbell, Inc., 564 A.2d 165, 170-71 (Pa. Super. Ct. 1989).

5. See, e.g., Trower v. Jones, 520 N.E.2d 297, 300-01 (Ill. 1988); Snelson v. Kamm, 745 N.E.2d 128, 137 (Ill. App. Ct. 2001), aff’d in part, rev’d in part, 787 N.E.2d 796 (Ill. 2003); Wrobleski v. de Lara, 727 A.2d 930 (Md. 1999). But see In re Doctor’s Hosp. Ltd. P’ship, 2 S.W.3d 504, 506 (Tex. App. 1999) (generally disallowing discovery of personal financial records and appointment books to demonstrate the bias of a nonparty witness).

6. Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999).

7. Metro. Prop. & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 44 (Ky. 2003).

8. Springer v. West, 769 So. 2d 1068, 1069 (Fla. Dist. Ct. App. 2000) (per curiam).

9. 518 S.E.2d 286 (S.C. Ct. App. 1999), rev’d, 548 S.E.2d 584 (S.C. 2001).

10. See also State v. Curtis, 591 S.E.2d 600 (S.C. 2004).

11. Hale v. Furr’s, Inc., 511 P.2d 572 (N.M. Ct. App. 1973); Sawyer v. Comerci, 563 S.E.2d 748, 754-55 (Va. 2002); Lombard v. Rohrbaugh, 551 S.E.2d 349, 355-56 (Va. 2001).

12. 563 S.E.2d 748, 755.

13. See, e.g., Nelson v. Gray, No. 236369, 2003 WL 22017802, at *4 (Mich. Ct. App. 2003).

14. See, e.g., Orkin Exterminating Co. v. Knollwood Props., Ltd., 710 So. 2d 697 (Fla. Dist. Ct. App. 1998).

Betsey Herd is a partner in the Tampa, Florida, law firm of Wagner, Vaughan & McLaughlin. Janabeth Evans (Taylor), a paralegal, registered nurse, and medical-legal consultant, is president/owner of Attorney’s Medical Services, Inc., in Corpus Christi, Texas. This article is updated and adapted from one originally published in the July 2002 issue of the AFTL Journal. 2002, Academy of Florida Trial Lawyers.