Excerpted from SEAK’s stream on-demand course, “Medical Malpractice Survival Training for Physicians”
Reviewing the opinions of opposing experts and pointing out for counsel the flaws, the vulnerabilities, the assumptions, the inappropriate assumptions that they’re making in accusing you of malpractice. Okay? That’s an opportunity that you have where you can actually get involved in the case, a real thing that you can do to assist counsel.
Thank you. The comment was that as hard as it is to look at those depositions and look at those expert opinions, it’s very important to do because it has assisted this particular doctor in helping her attorney figure out the issues of the case. And, you know, it’s hard to get that envelope from counsel and it makes your heart sink but one coping method that was just suggested is to set aside a certain time per week to deal with the lawsuit and with the papers that you’re being asked to review where you are compartmentalizing that and I think it’s a very apt suggestion. It’s a good one where you have the time when you’re dealing with it and you can identify issues that will greatly assist the attorney who is representing you. And so why not take that opportunity?
Put in the time. This is a very time-intensive endeavor. And I know that you don’t want to spend…that, you know, in your heart you feel resentful that you have to do this. You’re thinking, you know, “How did I get in this position?” But the fact of the matter is you’re in this position now and so you want to get yourself out of it, do whatever you can that you have control over to get yourself out of it in the best possible way. And this is one of the things you can do, putting in the time to go over the opposing experts’ opinions and point out to counsel why they’re flawed.
You know, another suggestion is to review what the plaintiff has said, that the patient’s actual testimony because he or she is gonna be talking about conversations with you and you can point out where there are discrepancies and where she’ll say, “Oh, well, the doctor, you know, didn’t recommend this particular medicine,” and you can say, “Wait a minute, the record demonstrates I ordered the prescription and we called it into CVS. How can she say that?” That’s a factual discrepancy. And so now counsel has that information that they could use at trial and they can cross-examine her on it. You know? Or other maybe more nuanced things that you can identify the plaintiff couldn’t have happened the way they describe because of information that you have. And so it’s important to go through that exercise and it’s a great help to defense counsel.
The question is, is this usually provided to the defendant? This is where, you know, at the outset of the case you talk about the level of, you know, activity you want to be involved here. You want to get this information. You want to review it. Now remember, there may be a strategy decision about remember what we were talking earlier about other providers and what they did that could cloud your opinion, you know, regarding what you did, and they may not want you to form new opinions in the case. And that can be a legitimate area but at least a scenario that you can have back and forth with counsel and talk out and weigh the benefits of finding out the whole context versus what you did.
But certainly, you know, learning what the opposing expert is going to say can only enhance your ability to represent what you did and be able to describe what you did and give your reasoning because now you know what they’re attacking. They’re saying that you should have ordered these four tests and you’re explaining, “Well, the reason I didn’t order these four tests are X, Y, and Z.” You’re ready for it. You don’t want to be sandbagged either in deposition or at trial on that information. You want to be ready. Knowing what the opposing expert is going to say, I think, is crucial for you guys as defendants. And not only to be able to properly explain what you did, but also, you know, to assist counsel in showing the vulnerability in those opposing opinions. And that’s something you guys, as experts, are able to address.
Now, there may be some opinions on causation that you are not qualified to address, right? You know, if you’re an emergency room physician and the issue has to do with, you know, a cardiology issue, causation issue, well, you usually don’t deal with that if you’re an ER doctor. And in that case, you’re not going to be qualified really to comment very much on that. We understand that and we have experts, you know, to deal with that. But certainly on the standard of care breach issues, that’s what you’re going to be testifying to that. You’re going to be explaining your reasoning. And so knowing what the opposing experts are going to say on those points is very important and being able to assist counsel in identifying vulnerabilities is very helpful, is something that you can do, a concrete thing that you can do to help…