Article by Mike Yonke & Tim Sifers featured in The Missouri Trial Attorney -Spring 2015
A successful deposition of the defendants' medical experts is crucial in medical malpractice cases. By its nature, the plaintiff should lose all medical malpractice cases given the fact that the plaintiff has the burden of proof. In each case the plaintiff has experts who testify that the defendants breached the standard of care while the defendants have experts who testify they did not. Tie goes to the defendants.
Because the competing experts use much of the same data to arrive at different conclusions, the plaintiff cannot win on the medicine alone. Medical malpractice cases are won in a few different ways. First, by demonstrating that the defense expert is incompetent by not knowing the medicine, testifying in an area in which they have minimal experience or their general unfamiliarity with the facts of the case. It is not unusual that the expert is not prepared at their deposition. If this is the case, it is important to expose that during the deposition. We like to get the expert to agree that it is only fair to all of the parties that the expert knows the medical records and has reviewed any previous depositions. We generally show weaknesses of experts' opinions if they have not covered all pertinent issues and applied that knowledge to case-specific facts.
Additionally, these cases can be won by demonstrating that the expert has a credibility issue. A credibility issue can be uncovered in a number of different ways. The expert may be stretching or misinterpreting the facts. Additionally, it may be shown through evidence of prior testimony that the expert is clearly a "hired gun." Finally, while the plaintiff and defense experts ultimately arrive at a different conclusion, there should be several areas where admissions can be obtained from the defense experts which can be used to support the plaintiff's case as well as actually lend credibility to the plaintiff's experts.
None of this can be accomplished unless we know the particulars in the area of medicine at issue. It is impossible to take a successful deposition if we have not mastered the medicine. The best and most affordable way to educate yourself on the medicine is to start with the internet. There are numerous sites on the internet that provide competent information about any medical condition or procedure. However, it is important you are aware of what websites you are using because there are several that provide inaccurate information. Websites such as the National Institute of Health as well websites related to physician's organizations relevant to the specific case, such as the American College of Surgeons in a surgical case, the American College of Cardiologist for a cardiac case or the Infectious Disease Society of America for an infection case may be utilized. Finally, after educating yourself, it is imperative that you spend time with the plaintiff's expert to obtain a firm handle on the medicine.
Once the medicine is fully understood, the next step is to vet the defense experts. This is necessary if you are going to be able to effectively attack the expert's credibility. It is important to fully review their curricula vitae to learn what organizations they belong to as well as any journal articles and/or book chapters that they have written. Many times the expert takes a position which is contrary from a journal article or chapter that they have previously authored. In other instances, the expert may form opinions contrary to guidelines promulgated by organizations in which they are a member. We always attempt to utilize medical literature to obtain general admissions.
Locating information related to prior testimony is extremely important. Reviewing prior deposition transcripts as well as expert reports will give you a huge head start on learning about the expert. These can be found in various places, such as the MATA list serve, the American Association of Justice expert list serve as well as Trial Smith, among others. You should not limit your search. We like to reach out to the state trial lawyers association where the expert is from and ask that they post a request for transcripts on their local list serve. Considering that many defense experts testify in their home state, we have been able to uncover a large number of prior deposition transcripts.
Obtaining prior testimony is just the start. It is necessary that every transcript or report is reviewed for either inconsistent opinions or opinions which are identical regardless of the case. For example, we handled a case where the defendant retained an infectious disease expert from Pennsylvania. Because Pennsylvania does not allow for expert depositions, the experts only provide reports. We obtained over 100 reports that the expert authored from the Pennsylvania Trial Lawyers Association. In every single report, regardless of the type of case, the expert opined the defendant did not breach the standard of care because the medical decision called for him to use his clinical judgment, regardless of what that judgment was. This was helpful in that it was the same opinion he provided in our case. This allowed us to argue that the expert's opinion is the same in every case, if a physician uses his clinical judgment, he never violates the standard of care.
Whether we locate contradictory testimony or not, we like to ask the expert if it is important that he does not contradict himself from case to case. We then get him to agree that if he did, it would cast doubt on his truthfulness. We then ask him, when he went back and reviewed his testimony from the last several years, was he able to determine whether he has been consistent. Invariably the expert will testify that he was unable to review their prior testimony because he no longer possesses the transcripts. We then ask, as a result of your inability to review prior testimony, you do not know whether you have provided any inconsistent testimony.
Another area that can prove helpful is conducting a Westlaw search on each expert. In one case we located a Supreme Court opinion from another state in which the defendant's general surgery expert had been stricken due to misrepresenting several facts.
Arming yourself with association guidelines, prior deposition transcripts or expert reports and medical literature which is inconsistent with the expert's opinions go a long way in attacking the expert's credibility. We have found that this is generally more effective than simply cross examining the expert about how much they have been paid. This type of cross examination is typically only successful if the majority of the expert's income is derived from medical-legal work.
The final and most important part of a medical malpractice expert deposition is to obtain admissions from the defense expert that support the plaintiff's expert and case itself. The key to gathering admissions from defense medical experts is organization and preparation. As for preparation, we learn the medicine in consultation with our experts until we feel comfortable enough to challenge the witness regarding her testimony. Listening closely to answers can lead to admissions even you were not prepared to get, but only achieved by knowing the subject very well. Organization is very important as well. You need to know your themes for trial before you depose the defendant's experts. Organize your questioning so as to get general admissions first. After you have obtained general admissions, organization of your questioning can make it more difficult for defense experts to deny case-specific admissions. Some savvy witnesses can see this coming, but some do not if you organize your questioning properly. Force them to agree to things that make them seem unreasonable if they disagree. Later in the deposition, use those general admissions to back them into a corner with case-specific admissions.
What admissions did you get from the defendant doctor and her colleagues? Use these against the experts as well. We tend to obtain general admissions from the first few witnesses before the defense attorneys are as familiar as we are with the case. Obviously, you can begin with questions they can't reasonably deny, such as, "You agree that a doctor should not needlessly endanger a patient, correct?", but also use prior admissions from witnesses for the defense that have already been deposed. Again, this line of questioning highlights the importance of truly understanding your case as much as possible prior to deposing defense witnesses.
To provide an example, we had a case involving a child that was extubated from a ventilator which helped him breathe as his heart became stronger following heart surgery. Our theory was that the child was ignored for too long and that a blood gas reading indicating he was acidotic wasn't acted upon properly. General admissions we were able to obtain from non-defendant doctors early in the case were as follows:
- Question: Do you agree that early recognition and prompt management of respiratory distress is required by the Standard of Care?Answer: Yes.
- Question: Do you agree that failure to timely recognize and manage respiratory distress can result in respiratory failure?
- Question: Do you agree the Standard of Care requires sufficient monitoring so that a failed extubation can be timely identified?
- Question: Would you agree with me that this was a trial of extubation of (patient) on November 18, 2010?
- Question: And under those circumstances, there are risks during a trial extubation, you would agree with me, correct?
We used these general admissions to cross the defense experts. We also looked to some admissions we got from the defendant doctor more specific to our case:
- Question: After that extubation, you would agree with me that you and your team had an ongoing responsibility after your order to monitor (the patient's) progress, is that correct?Answer: The team, absolutely, would monitor (the patient's) progress.
- Question: And it was your responsibility on that day, November 18, 2010, to supervise your team to ensure that the patient was properly monitored and assessed during the trial of extubation; would you agree with that?
- Question: Do you agree you had an ongoing responsibility to timely respond and order interventions that were necessary related to (the patient's) progress following his extubation on November 18, 2010?
Answer: Yes, Actually I would like to - can you be a little bit more specific? I say that because, again, my expectation is that if signs and symptoms that we were concerned about were to be present, that somebody would inform me of those when they saw them. And if that were the case, then I would attend to the patient at that time. Excuse me. Here the doctor is beginning to set up blame for the nurses who were also defendants in the case.
- Question: So (Name), as the nurse practitioner, and the nurses had an ongoing responsibility to keep you and the other attending physicians reasonably informed of his progress following the extubation; is that what you're saying?
Answer: I would say if there was a change from what we had seen previously. So if a patient changes in their presentation, if they have new requirements, oxygen requirements
or something of that nature, sure. Otherwise, it would just be kind of a routine reevaluation, which is standard - I can't say standard of care because I don't really know how that's defined in this case, but that was my specific practice. That would be how I practiced.
- Question: So the answer to my question was yes, if there was a change in condition of the patient?
Answer: That is the answer, thank you. We were able to use these general admissions by the defendant's colleagues to obtain more admissions from the defendant helping
us cross the experts regarding their own opinions. This is an example of organization and preparation. Know your themes early and obtain as many general admissions as you can early. Use these to get admissions more specific to your case and then use both to cross the experts. This is accomplished with preparation in the form of understanding the medicine and theme early, and by obtaining general admissions though proper organization of both the witnesses and organization of the deposition questioning as you are more likely to obtain general admissions early on in the deposition. In summary, preparation, research of the expert and a firm understanding of the medicine in each case is required for plaintiffs to have a successful deposition. Plaintiffs are destined to lose at trial if they cannot win at the expert deposition stage of the case.