Retaining
a Testifying Medical Expert
In
Texas, the law requires that virtually all medical malpractice
cases must be proven with medical expert testimony. The
only exceptions are for those rare cases involving sponges
or instruments which have been left inside of patients.
Although there is certainly a large market
of out of town "hired guns" to testify, these
type of experts usually do far more harm than good to
the case. Thus, it is essential that an experience medical
malpractice attorney with access to top, well-credentialed
experts be retained.
Generally, the type of expert to be retained
must be a physician who practices in the same specialty
as the accused doctor. Most experienced malpractice lawyers
prefer to retain a medical expert who has an academic,
or teaching background and clinical or hands-on experience
with patients.
After all, it is the expert's job to explain
the medicine to the jury and why this particular doctor
provided inadequate care under the circumstances. If the
expert has a teaching background, then he is used to teaching
students and others about medicine and is usually good
at drawing powerful illustrations for the jury.
Experts with only teaching backgrounds will
be subject to criticism at trial because of the lack of
day to day experience "in the trenches." An
expert who only practices medicine, but never teaches
it may find it difficult to explain the difficult concepts
of medicine to a jury. If the expert cannot explain the
medicine in easy to understand terms to the jury, his
resume is irrelevant.
Most physicians will not testify against
other physicians in the same state in which they practice.
Thus, most testifying experts are from out of state. However,
actively practicing and teaching physicians are very busy
with their own schedules and usually charge a small fortune
to be involved in medical malpractice cases. It will also
require the expenditure of more money to travel out of
state for the defense to take the deposition of a testifying
expert.
Many experienced medical malpractice attorneys
will not agree to take a case until they have a qualified
medical expert who is willing to come to court to testify
that malpractice was committed. This is true even if a
consulting expert has previously indicated that malpractice
was involved in the patient's care. The reason for this
rule is simple. Until a qualified medical expert is willing
to provide sworn testimony in court, the case is not provable.
Many times consulting and testifying experts
disagree about the merits of a case. Since the consulting
expert either cannot or will not testify, the case cannot
proceed until the ultimate testifying medical expert agrees
that a case exists. The earlier in the process that a
testifying medical expert can be retained, the better.
