The most effective way for a defense expert to attack the credibility of an opposing expert at trial is to give testimony that convinces the judge or jury that the plaintiff’s expert is wrong, according to Ken Zafren, MD, FAAEM, FACEP, EMS, medical director for the state of Alaska and clinical professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center.
“This can include citing relevant literature. But often, the best technique is to explain why the opposing expert is wrong in nonmedical terms,” he adds.
For example, testifying on behalf of the defendant in a frostbite case, Zafren rebutted the theory of the plaintiff’s expert that rewarming the patient’s frostbitten feet would have improved the outcome. Zafren explained to the judge why the evidence showed that the feet had thawed prior to the patient being in custody. The judge granted summary judgment for the defendant, the U.S. Marshall Service.
The outcome of many malpractice cases involving emergency department (ED) care will depend on the abilities of the experts to convince the judge or jury of the validity of their opinions, and/or their interpretation of the facts of the case. “It is part of an expert’s job to review the opposing expert’s credentials, including education, training, and experience,” Zafren says.
Role of EP Defendants is Limited
The defense expert should educate the attorney thoroughly about the issues in the case and the likely theories of the opposing expert, so that the attorney can effectively cross-examine the opposing expert. Emergency physician (EP) defendants, however, should proceed with caution in terms of how much input they provide.
“The defendant emergency physician should not be doing these tasks. The defendant emergency physician cannot be an effective expert, because an effective expert must be unbiased,” Zafren says.
An effective expert should know all the relevant literature, educate the attorney, and suggest additional experts, if necessary, to complement his or her area of expertise. “For medical malpractice cases involving emergency physicians, when the experts on both sides are well-qualified, it is generally not a wise idea to attack the credibility of an opposing expert. This move will likely backfire,” Zafren says.
An EP’s interaction with his or her own defense counsel can vary quite a bit, notes John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA. In some cases, the defense attorney or firm may be very interested and inviting toward the defendant EP’s preferences, suggestions, and relevant arguments.
“If one is a defendant in a case, one should explore the relationship a bit before jumping into assumptions as to the amount of input one will have in one’s own case,” Burton says.
Pulling relevant literature, specifically published journal articles, is generally not a good idea for the EP defendant, according to Burton. This is because anything presented to the defense team becomes a discoverable element.
“Since the physician defendant is not an attorney, the construction of the defense should be left up to the expertise of the defense counsel,” Burton says. Although well-intentioned, articles produced by the defendant EP might ultimately become damaging to the strategy and positions taken to defend the case.
Here are some things defendant EPs can do to strengthen the defense of a malpractice claim and refute testimony by the plaintiff’s expert witness:
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Suggest an expert witness for the defense to consider in reviewing the case.
The EP may be aware of a certain individual with relevant expertise. Burton is occasionally asked to review a case by defense attorneys who were referred to him through defendant EPs who attended presentations he’s given on procedural sedation in the ED setting, or are aware of peer-reviewed research he’s published on the topic. “This referral process for both plaintiff and defense inquiries to serve as an expert is not uncommon for a subject matter expert in the field of emergency medicine,” he says.
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It is helpful for the defendant EP to read the deposition given by the plaintiff’s expert.
This allows the EP to understand the plaintiff’s position. He or she can then suggest issues of relevance or contention to the defense team. “Again, one has to be cautious not to become overly involved personally in rebutting the plaintiff’s position in the deposition,” Burton says. Any articles, chapters, or other written documents all become discoverable documents that could ultimately harm the EP’s own defense tactics and strategy.
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Upon identifying an expert plaintiff witness, it can be helpful to explore the background and credentials of the expert.
“Exploring the type of clinical practice that the plaintiff expert has can be useful. One is generally looking for mismatches relevant to the defense case,” Burton says.
Experts who only work at large academic institutions can sometimes have their credibility questioned if the case involves care given at a small community ED, for instance.
If the expert is from an academic background, exploring the amount of clinical work that the individual has done in recent years to sustain their qualifications with regard to the statutes for the given state can be useful. “Most of this work will be expected of the defense team, and will not be an area where the defendant can become actively involved,” Burton warns.
Zafren identifies these potential weaknesses in an expert’s credibility, whether he or she is on the side of the plaintiff or the defendant: the expert is not in the same specialty as the defendant; the expert lacks board certification or has a lapsed board certification; the expert has not been active in the practice of medicine in several years.
An opposing expert occasionally offers opinions that are beyond the expert’s area of knowledge. “The expert should help the attorney find an expert to refute these opinions,” Zafren says. In some cases, the plaintiff’s expert may rarely or never have seen the condition that led to the malpractice claim.
“This may be inevitable in cases involving rare conditions, but can still lead to questions about the witness’s credibility,” Zafren says. Another major weakness opposing experts on both sides can exploit is the situation in which an expert only testifies for plaintiffs or only testifies for defendants. “This can help the opposing attorney make the expert out to be a ‘hired gun,’” Zafren says.
A plaintiff’s expert, who testifies at trial before the defendant’s experts, may convince the jury to believe his or her opinions. “This prejudices the jury against any contrary opinions offered by the defendant’s expert,” Zafren says. “To prevent this, the defendant’s attorney will need to attack the credibility of the plaintiff’s expert on cross-examination.”
Zafren has testified in trials in which the opposing expert offered opinions that were clearly beyond his or her areas of expertise. One of Zafren’s areas of expertise is cold injury. “Many opposing experts, although otherwise well-qualified in their own specialties, have offered opinions that showed ignorance of the most basic facts regarding cold injuries,” he says. “I have instructed the attorney how to make this clear to the judge or jury.” The attorney can use objections during cross-examination of an expert in an effort to strike testimony beyond the expert’s areas of expertise, or at least to decrease the weight of the testimony.
The defense expert witness will need to overcome similar efforts by the opposing attorney. At a recent deposition, a plaintiff’s attorney attempted to disqualify Zafren as an expert by taking a published quote out of context, in an attempt to imply that he was biased in favor of defendants. “I was easily able to counter this line of attack,” he says. “The judge will likely find that the quote was hearsay evidence and not admissible.”
At the same deposition, the plaintiff’s attorney challenged Zafren by citing the incorrect diagnosis of the treating physicians other than the defendant, as well as literature that the attorney alleged supported the plaintiff’s position. “My counter to the claim that I disagreed with all the other doctors, including the author of an article that is clearly wrong, was that I reviewed the case and came to my own conclusion,” Zafren says.
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John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. Fax: (540) 581-0741. E-mail: [email protected].
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Ken Zafren, MD, FAAEM, FACEP, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. E-mail: [email protected].
