Getting
Your Medical Expert Witness to Trial
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.
Since most physicians
will not testify against
other physicians in
the same state in which
they practice, most
testifying experts are
from out of state.
When the
case proceeds to trial,
most experienced medical
malpractice attorneys
will tell you that it
is absolutely essential
that the medical expert
witness appear live
at trial to render his
testimony. This is because
it is hard to explain
the difficult medical
concepts to a jury without
using drawings and charts
to illustrate his explanations.
Also, if a highly credentialed
physician cares enough
about the case to travel
from out of state to
testify, then the jury
will be swayed that
it must be a legitimate
case.
However,
wanting the medical
expert to appear live
at trial and getting
him there on the appointed
date are two different
things. Top experts
lead extraordinarily
busy schedules. To come
to trial, the expert
will likely have to
cancel or postpone many
scheduled patients.
This will cost him a
lot of money. Also,
there is no guarantee
that he will be able
to fly in and fly out
in one day to render
his testimony.
During
trial, the amount of
time it takes to pick
a jury and examine all
of the witnesses which
need to testify before
your expert takes the
stand cannot be predicted
accurately. Thus, you
may tell your expert
to clear his schedule
for a Wednesday, and
may not be ready for
him to testify until
Friday. Most experts
know this and will not
commit to appear for
more than one day because
of the lost time and
money involved.
The procedural
rules do allow a party
to present evidence
by deposition or video
taped testimony, thereby
allieviating this problem,
but this is much less
effective to present
to a jury than a live
person. Jurors quickly
get bored with depositions
that are read to them
and video testimony
precludes the effective
use of drawings and
charts to illustrate
the testimony.
The problems
in getting the medical
expert witness to trial
require the expenditure
of tremendous sums of
money to compensate
the witness for the
substantial lost time.
They also present challenges
to even the most experienced
medical malpractice
lawyer to manage the
timing of the testimony
so its impact on the
jury can be maximized.
