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By Burton Bentley II, M.D., FAAEM

CEO, Elite Medical Experts

When exploring and litigating personal injury claims, the strategic use of medical experts is mission-critical to winning the case and controlling cost.  While their expertise is statutorily mandated to assist juries in comprehending matters that require a level of knowledge beyond the layperson’s understanding, their demanding schedules and lofty rates often clash with legal professions’ expectations. Since establishing a productive collaboration with medical experts is pivotal to the success of a case, it is important to understand that medical experts are active healthcare providers, managing their medical duties alongside legal consultations. Here are six battle-tested strategies that can significantly enhance your interactions and collaboration with medical experts.

1.  Identifying the Ideal Medical Expert: A Nuanced Approach

The medical field is expansive, encompassing nearly 300 specialties and subspecialties, each with its own set of skills and knowledge. Selecting the right medical expert for a case is a nuanced process that goes beyond the simple identification of a competent physician or surgeon. This task can be conceptualized as a Venn Diagram, where essential requirements intersect with desirable attributes. Fundamental requirements include qualifications like medical specialty, ABMS board certification, active licensure, and the ability to meet deadlines. On the other hand, preferable traits may include geographic proximity, previous testimony experience, publication history, agreeable personality, and reasonable fees. The ideal expert, who meets every criterion, is rare. Therefore, attorneys should focus on primary qualifications, treating additional preferences as beneficial but not mandatory. For example, if an otherwise perfect expert is located further than desired or charges a slightly higher fee, these factors should be considered in light of the overall benefit they bring to the case. This strategy emphasizes a pragmatic approach to expert selection, prioritizing essential qualifications while remaining flexible with additional preferences.

2.  Leveraging Academic Credentials: The Influence of University Affiliated Experts

The courtroom is a battleground of wits and knowledge, and the presence of a well-credentialed medical expert can significantly influence the course of litigation. University-affiliated medical professionals, often Professors of Medicine or Surgery, bring a combination of clinical experience and academic prestige. These experts, through their daily practice and teaching roles, possess an inherent ability to simplify and explain complex medical concepts, making them invaluable in educating juries. Their credentials and extensive publication records serve not only as a testament to their expertise but also as a psychological lever in the courtroom. Their presence can sway negotiations, reduce the confidence of opposing experts, and radically alter the dynamics of litigation.

3.  Accessibility and Commitment: The Cell Phone Test

Even the most knowledgeable expert can be a liability if they are not accessible when needed. The “Cell Phone Test” is a simple yet telling gauge of an expert’s commitment and availability. By requesting an expert’s personal cell phone number during the initial interview, attorneys can assess their willingness to be a proactive and responsive participant in the case. This accessibility is especially crucial in time-sensitive situations or when immediate clarification is required. An expert's readiness to provide personal contact information can be a deciding factor when choosing between similarly qualified candidates, ensuring seamless communication throughout the legal process.

4.  Setting Expectations: The Importance of a Clear Scope of Work

Miscommunications regarding expectations and deliverables can lead to strained relationships and ineffective collaborations. Establishing a clear Scope of Work (SOW) at the onset of the engagement is crucial. The SOW should outline the expert’s role, detail the records for review, specify the exact deliverable (oral opinion, written report, etc.), set any deadlines, and describe how the deliverable should be executed (e.g., setup calls through an assistant). This clarity in expectations prevents misunderstandings, cost overruns, and irrelevant deliverables, ensuring a more productive and efficient partnership.

5.  Strategic Checkpoints Eliminate Runaway Billing

Uncontrolled expert billings can severely impact budgets and sour professional relationships. Contrary to popular belief, medical experts often identify crucial documents and form primary opinions within the initial hours of file review. Therefore, it's prudent to request a check-in discussion after an initial period (e.g., three hours) to assess preliminary findings and plan subsequent steps. This checkpoint not only aligns expectations regarding time and costs but also helps in managing the budget more effectively. In many straightforward cases, experts may not require extensive additional time, aiding in curtailing unnecessary expenses.

6.  Structured Roadmaps Streamline Case Review

Presenting medical experts with disorganized or voluminous records is counterproductive, costly, and a surefire way to delay the expert’s review. Instead, providing a chronology or index along with a summary of key dates, events, and medical providers helps orient the expert and facilitates a more efficient review process. Adding Bates references further enhances accessibility. This approach facilitates the expert’s independent analysis and aids in navigating the extensive documentation, especially in cases with large files. The goal is to give the expert a complete set of medical records with an index that is factual and devoid of editorialization. While that approach essentially eliminates issues with discovery, the following statement, appended to the index, closes the issue entirely:

“The following index is provided as a courtesy to facilitate your orientation to various names, dates, and events in the medical record. It is not a substitute for your full and independent review of all case materials.”

The relationship between an attorney and their medical expert is a vital component in the success of legal proceedings, particularly in personal injury cases. By implementing these strategies, attorneys can foster a more effective and efficient partnership with medical experts, enhancing their ability to efficiently navigate complex challenges in the attorney-expert relationship.

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