The Care and Feeding of Expert Witnesses
The “care and feeding” of your expert witness or witnesses is one of the most important aspects of your case. Expert witnesses are utilized in most types of litigation, and in a North Carolina medical malpractice case, expert witnesses are almost mandatory. The manner in which an attorney first contacts an expert witness, particularly a physician, impacts greatly upon their willingness to testify. A poorly executed first contact or bad first impression will only decrease the attorney’s chances of retaining the expert. The incorrect “care and feeding” of the expert once they have been retained, however, can severely impact an attorney’s case and may significantly affect its outcome. As a result, the attention devoted to your expert during the long pre-trial process as well as trial can go a long way in preserving a favorable opinion. In this brief article, I will touch upon certain aspects of expert witnesses particularly as they pertain to medical malpractice cases in North Carolina. Unfortunately this article does not address all aspects of expert witness use but does somewhat reflect my own personal experience as an expert.
I. Selecting an Expert
A. Why Do You Need One?
Because the law says so; before filing a medical malpractice suit in North Carolina, an attorney needs an expert witness to review the case and affirm a breach of the standard of care. Rule 9(j) of the North Carolina Rules of Civil Procedure states: “Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90 – 21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;…
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.”
In other words, in all but the most unusual cases, an attorney needs an expert to review the case and determine negligence prior to its filing. Medical malpractice suits based upon the res ipsa doctrine are uncommon and should only be considered if the facts show a retained foreign body, a procedure on the wrong body part or perhaps, surgery on the wrong person. Even if the facts of a case might meet the definition of res ipsa, the attorney should still retain an expert to explain the surgical mishap and its consequences. As one might imagine, finding an expert in such a case will prove simple.
B. Choosing an Expert
In North Carolina, the decision to retain an expert is simple, finding one can be another matter. In general, the more specialized the expert, the greater difficulty an attorney encounters in finding one, even if only to review the case. Such difficult specialties include cardio-thoracic surgery, neurosurgery and even orthopedics. If possible, the attorney should attempt to retain an in-state expert although experts in neurosurgery and cardio-thoracic surgery can be extremely difficult to find even to review a plaintiff’s case. An excellent place to begin searching is a posting on the NCATL list-serve. Such a posting will provide an attorney immediate access to the accumulated experience of a large number of North Carolina attorneys. In conjunction with such a posting, a posting to the ATLA list-serve will provide access to a national repository of knowledge.
With a posting on either or both of these list-serves, an attorney will almost always obtain a few names of experts. If not, a polite call to other attorneys requesting names will almost always elicit a helpful response. If the attorney receives no help from those sources, a further search should include the authors of current textbook chapters, journal articles or even entire textbooks dealing with the subject at issue. Finally, an attorney may need to access search firms such as TASA to find their experts. Although most attorneys feel that such firms have a stigma attached to them, I have found that most juries pay little attention as to how an attorney located an expert.
C. First Contact
When attempting first contact with your expert, an attorney should realize several important concepts. The expert is a physician, who is generally not an attorney, and who has an ingrained reluctance to speak with most lawyers. The expert is generally busy and is usually a practicing physician with patients and many time-constraints. As such, the expert should be approached politely, respectfully and not be inconvenienced. Most importantly, however, when first contacting your expert know your case. Again, you must know your case.
Knowing your case cannot be emphasized enough. An attorney should be knowledgeable about the facts of the case and be organized. Many experts will not review a case without a case synopsis and the names of physicians involved so as to insure no conflicts exist. Provide both in a timely, organized manner. Provide the material in whatever form the expert requests, be it fax, e-mail, or letter. The expert can then decide if he or she can review the case.
In the event an attorney’s first contact with the expert is by phone, the above requirements still apply. Be brief, be organized, be knowledgeable and be punctual if a conference time has been arranged. If an attorney fails to make the telephone conference in a prompt, timely manner, the expert will likely not be available for further contact. Occasionally, an attorney will receive a preliminary opinion from the expert – if positive, send the expert records and retainer immediately, if negative, thank them for their time and promise to consult them again. Finally, remember to request the expert’s current C.V. and fee schedule.
II. An Expert Reviews a Case
A. What to Send an Expert
The expert should be sent everything that he requests and more, if necessary. The expert should be sent all pertinent medical records including past medical records that would refute or support the patient’s current damages. The expert should be sent all the medical records that document the episodes or occurrences at question with regard to a breach of the standard of care. In addition, ask the expert what he or she feels is needed to evaluate the attorney’s case. If they do not feel they need all the nursing notes or physician’s order sheets, and perhaps they don’t, the attorney should still weigh the expert’s beliefs with the impact of a question such as, “You didn’t review all the records before arriving at your decision, did you doctor?” Such a question carries no weight when the expert has reviewed all the records.
In addition, update the expert with any new pertinent medical records as well as any pertinent deposition testimony including the patient’s, the defendant doctor’s, and the defendant expert’s depositions. With regard to X-rays, ask the expert, after completing his review of the records, for a specific list of x-rays needed to help with their opinion. Such a request reduces expenses and allows the expert to sharpen his opinion. Finally, send the retainer check in the correct amount with the records, as well as an admonition not to write a report.
B. Discussing the Case
The attorney receives a call from the expert several weeks after sending him the records requesting to arrange a phone conference; at that point, the attorney should immediately return the expert’s call and arrange a phone conference at a time convenient for the expert. The follow-up call needs to be placed promptly – preferably the same day, so as to show the expert that his opinion is important. If the attorney has not heard from the expert within several weeks, a discreetly placed call inquiring as to receipt of the records or the expert’s progress in reviewing the material is acceptable.
When the attorney discusses the case with the expert, they must take notes and allow the expert to explain the case and medicine as the expert deems appropriate. Most experts find that attorney interruptions are annoying and non-productive. At the end of the expert’s opinion, the attorney should feel free to ask any questions or ask for any explanations. Ask specifically what breaches the expert can document and discuss specifically the causation issue – did the breach cause the harm. In addition, the attorney should once again establish that the expert meets the requirements of Rule 702 of the North Carolina Rules of Evidence with regard to the specialist requirement and date of practice requirement. Finally, at this point, the attorney can discuss the locality rule in North Carolina, establish that such a requirement does not alter the expert’s opinion, and note that a community information packet along with the proposed complaint will be sent to the expert in the near future. Regardless of the expert’s opinion, thank him for his time, effort, and prompt response.
C. Locality Rule
As most North Carolina attorneys are well aware, North Carolina courts have determined that the standard of care in a medical malpractice action is a local standard of care vis-à-vis “the same or similar community.” Most experts, however, believe that the standard of care is based upon a national standard. To educate experts as to the North Carolina standard, the attorney must emphasize, preferably at the time the expert determines a breach has occurred, that the standard of care is a local standard applicable to the same or similar community in which the defendant practices. In addition, to meet the knowledge requirement as to the same or similar community, the expert must be educated through a community information packet. This packet, along with the proposed complain, is provided to the expert prior to filing the complaint. This allows the expert to comment upon the complaint and discuss the community with the attorney.
A. Prepping an Expert
Most physicians do not understand a deposition, its rules, its conduct, or even its scheduling. The attorney must educate the expert as to the importance of the deposition as well as its pitfalls. Explain to the expert, even if they have given dozens of depositions, the scheduling/re-scheduling format, and goals of a deposition. In addition, the expert must have no unpaid balance or outstanding charges prior to the scheduling of the deposition. Apologize in advance for the difficulties in scheduling the expert’s deposition.
Prepping an expert should begin with an overview of the process and a discussion of the defense attorney’s demeanor and behavior. Answer all the expert’s questions. After those topics are covered, the attorney should discuss the locality rule in North Carolina and emphasize that any meaningful discussion of a national standard should be avoided. Review what the expert has read, especially the pertinent medical records, depositions, x-rays, and community information packets. Emphasize to the expert the need to discuss his knowledge of the community and the defendant doctor. Review the expert’s qualifications as to the procedure and specialty in question. Finally, review the expert’s opinions as to the breaches and the consequences of the breaches.
The expert will generally be prepared on the medicine involved in the case, but the attorney should educate him as to the possible defenses that could be at issue. The attorney should prepare the expert as to potential questions and answers with regard to the defense’s theory of the case. In addition, the attorney should review the basis for the expert’s opinion including any pertinent medical literature. Emphasize that the expert might necessarily need to agree with the defense on some medical points but will need to maintain his opinions as to the breaches and causation. Finally, the attorney must determine what documents are required to be produced at the deposition either by subpoena or for support/defense of the expert’s opinions. This prep session generally can be done telephonically the day before the deposition or the period just before the deposition. The time involved should take no more than an hour in order to avoid expert burn-out.
B. The Deposition
The attorney who objects frequently and loudly at his expert’s deposition gains little if any advantage. Explain to the expert, that he, the attorney, will remain silent for most of the deposition and will ask few if any questions at the end. The attorney can explain to the expert that, at the end of the deposition, the attorney may ask questions regarding the community standard but little else. Unless the expert flips or completely comes apart, the attorney has little to do at the actual deposition. Finally, it should go without saying that both the expert and attorney should be on time to the deposition and dress appropriately.
After the deposition ends, the attorney should spend at least a few minutes with the expert alone. The expert has a genuine desire to be critiqued and to be told that the testimony satisfied the attorney. The attorney, however, should be candid if the deposition did not go as expected and should be equally positive if the deposition went well. In this current atmosphere of expert abuse by the medical profession, the expert feels not only pressure but also fear, and after the deposition, the attorney must be supportive of his expert. At the end of their time together, the attorney should explain the next steps of the litigation process to the expert and present a roadmap for the remaining life of the case.
The attorney should contact the expert about six weeks prior to trial; explain that settlement of the case is unlikely, and that their presence will be needed at trial. At that time, explain to the expert the uncertain nature vis-à-vis timing of the trial and emphasize that all possible efforts will be made to decrease any inconvenience to the expert. About this same time, the attorney should update the expert with any additional medical records with regard to the case as well as any additional pertinent depositions. In addition, the attorney should provide the expert with a brief overview of the trial itself and discuss the role of the expert during the trial. The attorney should review and discuss the various exhibits, both substantive and illustrative, that the expert will likely need or use at trial. At this same time, alert the expert as to any other testimony required of him such as verifying the necessity and reasonableness of the medical expenses in the case. The attorney may also ask the expert to discuss future expenses, disability or any other areas deemed important by the attorney. Discuss these areas of testimony several weeks prior to the trial, however, and not the evening the expert comes to town. Finally, briefly review his opinions and especially review the community information.
B. Travel Plans
Both the attorney and the expert will need to be somewhat flexible with regard to travel plans. As everyone knows, trial calendars are in constant flux especially in counties where medical malpractice cases are not peremptorily set. Once a trial is certain to go, the expert should be informed, and travel plans arranged. The attorney’s office should arrange airline tickets, transport to and from the airport, and hotel accommodations. Generally, the expert should arrive the evening before trial, called to the stand as first witness the next morning, and allowed to go home that afternoon or evening. The expert should be met at the airport and driven to the hotel. After his testimony, the expert should be driven back to the airport. The morning of the expert’s testimony, he should be escorted from his hotel to the location selected by the attorney be it the courthouse or office. At that time, the attorney should undertake one final preparatory session with the expert.
C. The Day of Trial
The expert will find that a copy of his direct examination is helpful in preparing his testimony and will provide a framework for his opinions. To that end, the attorney should provide a copy of his direct examination outline at a convenient time, not generally later than the day before the expert’s testimony. This will allow the expert sufficient time to review the questions and prepare his testimony accordingly. The morning of the trial, the attorney should meet with his expert and review the direct exam in a comprehensive fashion. The attorney should emphasize the community standards requirement as well as the expert’s qualifications. The attorney should also pay particular attention to the expert’s substantive opinions and the order of exhibits during his testimony. Finally, arrive at the courtroom approximately thirty minutes prior to the expert’s testimony to allow the expert to become familiar with the courtroom, jury box, exhibit locations, and witness box.
D. Trial Testimony
If the attorney has spent the appropriate amount of time in preparing the expert, trial testimony should proceed without any complications. The expert’s qualifications as well as his knowledge of the community and its standards with regard to the case should be established at the beginning of the testimony so as to qualify the expert. Remember to tender the expert. In addition, during the direct examination, the attorney should cover the fee schedule of the expert as well as his experience in providing expert testimony. Such questions may somewhat preempt the defense’s attacks upon the expert vis-à-vis his “bought testimony.” Generally, the attorney as well as the expert should follow the direct examination outline and thus allow the testimony to flow from the outline. Moreover, the attorney must remember that the expert should be allowed to teach the jury. Encourage him to step out of the witness chair, use the exhibits, and demonstrate his points to the jury. The attorney should avoid simple yes or not questions and encourage the expert to explore and elaborate upon his opinions. The expert should speak to the jury and make frequent eye contact with every member of the jury. The attorney should cover all the necessary topics with the expert, allow the expert to teach the jury, explain his opinions and then should stop. An effective direct examination probably should continue for no more than ninety minutes. After that time, the jury will lose interest, and the expert will begin to lose focus. The attorney should stop when all the necessary information has been covered.
As for cross-examination, the attorney and the expert should have covered the defenses and the areas of cross-examination during the previous sessions. The expert’s deposition usually provides a guide as to the areas for cross-examination. Again the expert should be prepared to cover the defenses to the case, support his opinion with literature, and concede points if medically necessary. Finally, the expert should be prepared to discuss and elaborate upon his fee schedule as well as the community standards discussed in the prior direct examination.
Re-direct examination should be short and cover only the most important one or two topics from the cross-examination. Unless real damage was done to the expert’s testimony, the attorney should spend no more than five or ten minutes on re-direct. By this time, the expert is exhausted and wants to go home. An effective re-direct is short, makes several important, strong points and keeps the expert synchronized with the attorney. Finally, once the expert’s testimony is concluded, the attorney should speak with him, thank him and allow him to return to the airport or hotel.
A. Get Him to the Airport on Time
Following my trial testimony in Cape Cod several years ago, the attorney looked at me and said “I am not sure how you are getting back to Boston. Sorry about that!” I finally chartered a plane and made my own way to Logan Airport in time to catch my scheduled departure. As an attorney, do not subject your expert to such abuse. Arrange for him to return to the airport or hotel in time to make his flight. Many attorneys make the mistake of neglecting their experts after trial. Do not make that mistake – the attorney may very well need the expert’s services again at a future date. The attorney should express his appreciation and assure the expert that he was helpful in the case. As an aside, many of you are wondering what I did to be left stranded at a Cape Cod Courthouse – nothing, the plaintiff won with me as the only expert.
B. Post-Trial Discussions
After the trial, regardless of the outcome, the attorney should call the expert and inform him of the results. Most experts are very interested in the outcome of the trial not only to close their files but also to gain a sense of satisfaction in their testimony. The attorney, at this time, can also critique the expert’s testimony and performance. In addition, the attorney should take the opportunity to gain insight into their trial performance as viewed through the eyes of their expert. The attorney will generally benefit from a candid discussion of their performance vis-à-vis the expert’s standpoint. Finally, the attorney should ascertain any remaining balance due to the expert and effect payment promptly.
C. Final Thoughts
Many expert witnesses can be very delicate creatures that require the utmost attention and care. Others are much hardier and require only a minimum of care. Regardless of the type, poor care of the expert can have a devastating effect upon an attorney’s case. A poor first contact, a sloppy, unprepared attorney, or poor choice of records for review can all impact negatively upon an expert’s opinion. Poor preparation of an expert can result in inadequate or even surprisingly bizarre testimony from the expert as well as a failure to qualify the expert with regard to the community standards. Moreover, by mishandling an expert, the attorney may very well miss an educational opportunity, lose a valuable expert source, or even lose his case. All North Carolina attorneys who handle medical malpractice cases will need expert witnesses in the course of their work. Hopefully, the above suggestions will go a long way in aiding those North Carolina attorneys in the care and feeding of their experts.
Dr. Rawlings was born October 27, 1958, received his MD degree from Duke University Medical School in 1982, was Board-certified in Neurological Surgery in 1991, and received his JD degree from Wake Forest University School of Law in 2002. Dr. Rawlings actively practiced neurosurgery from 1989 until 2000, and over the past eight years has been actively involved in medical malpractice litigation as a consultant, case reviewer and expert witness. He has served as a reviewer for more than 200 cases nationwide as well as acting as an expert consultant to a number of law firms in matters concerning expert testimony. Dr. Rawlings is currently licensed in North Carolina, South Carolina, and New Jersey and is practicing with The Mackenzie Law Firm in Winston-Salem, North Carolina.