The first rule of thumb is…
to remember you are the attorney and the responsibility for properly screening the expert(s) is yours. Even if you are using a referral service, don’t assume that the referral service has performed a background check on your doctor. Approaching the selection of an expert with this mindset will prepare you to ask the right questions and lead you to follow up on the expert(s) credentials.
The first and most important step in screening an expert is performing a thorough review of your case. An attorney should know his/her case before enlisting the services of a medical expert. A thorough review of the case includes taking a complete history from the client, which includes not only present medical treatment along with physical problems, but previous medical treatment and pre-existing conditions. Additionally, a careful practitioner will want to know if his/her client has ever pursued malpractice claims in the past and their outcomes as well as whether the client has sought legal representation in the present case from someone else. If the client has sought legal representation from another attorney, the likelihood that the case has already been sent out for a medical review is great. Reviewing any previous medical reviews can save an attorney several hours that could otherwise be wasted by investigating a case that is without merit. A thorough screening of a case should focus the attorney in on which doctor(s) are likely responsible for the client’s current condition and therefore what area of medical expertise the expert(s) should be qualified in. Once a thorough screening has taken place, the next consideration is locating an expert and screening him/her to assess whether he/she is the right expert for the case.
Any expert, as part of the screening process, should be willing to provide a copy of his/her CV, fee schedule and an initial phone screening at no cost. Make the most of what services are provided for free. A thorough review of an expert’s CV and fee schedule can help you weed out, early in the process, experts that are not right for your case. If you are still interested in an expert after reviewing his/her CV and fee schedule, arrange for a phone screening and be prepared for the conversation.
A free phone screening is your best opportunity to assess whether the expert is going to be right for your case. In order to assess the compatibility of the expert with your case, have your end of the conversation with the potential expert planned out ahead of time. Doctors are usually quite busy and if they are doing the initial phone screening for free, they don’t want to waste a lot of time.
Points of discussion with the medical expert should include a brief summation of your case including a description of the procedure(s) performed by the doctor whose treatment is in question and the problems suffered by your client. After providing a brief summation of your case as described above, ask the expert if he/she is comfortable in taking on a case in this particular area. If the CV did not clearly articulate the experts credentials in the specific medical area you need, ask him/her what training, experience and/or education he/she has in the specific area applicable to your case. Most importantly, has he/she performed the procedure that is in question or if a procedure was performed that is not accepted practice, has he/she treated patients that presented with symptoms the same or similar to your client.
Use the free phone screening to assess the personality of the expert as well. If the expert does not connect with you, there is a great chance he/she won’t connect with the jury either. Also, if your case is a Plaintiff’s case, make absolutely certain that he/she is willing to testify against another doctor.
During the initial phone screening, you will also want to ask the expert how many times he/she has testified in court and what is the ratio of Defendant cases verse Plaintiff cases. If your expert has only testified for your side of the case, this may have a negative impact on the jury. Also, what was the result of each of the cases in which the expert testified? If the expert has a track record of being on the losing side, what basis do you have to expect a different result in your client’s case? Additionally, has the expert been sued for malpractice? If so, when, how many times, and what was the outcome of the case(s)? Few things are more damaging to your client’s case than putting on an expert who has been found negligent in his/her own practice of medicine.
Often times, when you go through a referral service, the initial CV you receive does not show the name of the expert. If this is the case, upon completion of the phone screening, be sure to verify the status of the license(s) reported by the expert with the Medical Board from each of the respective states. If the name is provided with the initial CV, verify the status of the license(s) before proceeding to the phone screening.
Once you have done all of the above and asked additional questions and sought out additional information based upon the specific needs of your particular case, you’re ready to make your decision. Good Luck!
The recommendations are not intended to be an exhaustive list in selecting a medical expert but are intended to provide a basis upon which to formulate a plan for an effective screening process. Because medical experts are quite expensive, the careful practitioner must be diligent in efforts to procure an expert to achieve the greatest benefit for his/her client.
Written by Attorney Edward A. Merrill from Bend, Oregon