Mistakes Lawyers Make in Medical Malpractice Cases: Expert Carelessness

Welcome back to Law Tips for an expansion of  the discussion on how to avoid the issues that can cripple a medical malpractice case.  This week our faculty participants, Linda Chezen and John Boren, delve into the concerns surrounding inadequate expertise in evaluation of the case.  Their overall alert is: ….woe betides the attorney who does not adequately explain the standard of care, show causation, and prove/justify the amount requested as damages.”

Inadequate expertise in evaluation of the case: Relying on an expert who is not one!  And/or is not recognized by other experts.
The need for a witness that is not only an expert but very creditable and professional in his or her presentation is paramount. A firm that utilizes experts with questionable credentials will eventually get branded with its carelessness. I still remember the med mal case I tried where the plaintiff’s expert was not a medical doctor and the jury decided for defendant because the plaintiff did not have a “real” doctor.

There are societies and other professional organizations in which an expert can list membership but all are not equal. For medical doctors, The American Board of Medical Specialties is the key credential for an expert. 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”.

Utilizing an expert with questionable credentials may not keep you from getting to trial. If you need trial experience, using a fake expert can get you the experience- if not the verdict you want.  For other professionals and scientists, knowing how to evaluate the credentials of the person and the organizations is a critical skill. Questions to ask:

1. Would they have you as a member?

2. What do the university faculty know about the society?

3. The right expertise may not be an M.D.

a. Toxicology- Society of Toxicology

b. Alcohol- Research Society on Alcohol

c. Neuroscience – Society for Neuroscience

At the least, have a non-testifying expert evaluate the case.
It feels great to get that favorable expert review on a challenging case you just accepted. This may be a good time to breathe and get a second opinion, particularly when the issues are complex and the trial expenses will be high. An additional opinion from a non-testifying expert will help establish 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 can provide long-term savings in terms of both time and money.

Where to find the best medical expert witness:
Have someone familiar with the medical world and the academic qualifications evaluate expert’s CV and experience. Do not stop with your own witnesses but have the same process for the opposing side’s experts. Compare the witness to the stars of the specialty and other potential expert witnesses.

Know who is doing relevant research. See http://report.nih.gov/
“Research Portfolio Online Reporting Tools provides access to reports, data, and analyses of National Institutes of Health research activities, including information on NIH expenditures and the results of NIH supported research.”

Thanks again to Linda Chezem and John Boren for illustrating the dangers that could jeopardize medical malpractice cases. Be sure to check in here at Law Tips next week for tips from our Medical Malpractice experts on avoiding the wrong experts when evaluating your case. Meanwhile, you have the opportunity to take advantage of the excellent CLE presentation on Mistakes Attorneys Often Make With Medical Malpractice Cases through ICLEF’s On Demand CLE programming.

ICLEF also has Advanced Medical Malpractice on June 24th, as a Live In-Person only Seminar, Click Here.

Resource: Marian Langley JD, reference article: Seven Mistakes Attorneys Often Make With Medical Malpractice Caseshttp://www.ilawconnect.com/blog/seven-mistakes-attorneys-often-make-with-medical-malpractice-cases

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About our Law Tips faculty participant:
John D. Boren opened his law practice in Martinsville, Indiana, in 1979 and joined with Steve Oliver to form the partnership of Boren and Oliver in 1981. Together they have  pursued numerous cases for injured clients with successful representation against the largest corporations in the world. John has also successfully defended numerous clients charged criminally, including the defense of a twelve year old boy charged with murder. His areas of practice include personal injury, medical malpractice, major criminal defense and DUI.

Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville. Judge Chezem’s expertise reaches into several areas. For instance, due to her extensive background in underage drinking laws, she teaches law students, graduate students and lawyers about ethical and legal issues in alcohol research. She also focuses on animal use and production law and, on the human side, informed consent and certificates of confidentiality.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you onLaw Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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