Connecting Lawyers with Expert Witnesses

Burton Bentley II, M.D., FAAEM

CEO, Elite Medical Experts

www.EliteMedicalExperts.com

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Imagine you've secured a top-tier expert for a "solid" case, and the records are in the expert's hands for a first look. The facts are straightforward, and as soon as the expert affirms the case’s merit, you look forward to providing even more details you learned from your client. Everything is going smoothly, until disaster strikes: The expert calls with an opinion that is entirely counter to your claim. You try to provide additional details that were missing from the records, but it’s too late. Despite your eagerness to supplement the narrative, the expert’s conclusions can’t be swayed, and now you need a new expert. Analyzing what went wrong underscores the importance of preemptively sharing conflicting narratives by disclosing all relevant facts at the outset of the consultation process, not midway through it. Indeed, enabling your expert to prospectively consider differing versions of the same medical encounter is the only way to circumvent a costly disaster known as The Expert’s Dilemma.

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The medical record — though perceived as sacrosanct — merely represents a single perspective on a complex patient encounter. In other words, it may not be entirely accurate, and it rarely includes everything said by the patient or other percipient bystanders such as the patient's friends and family. For example, say that a 52-year-old woman presents to the emergency department with a complaint of "migraine" headache. The electronic health record (EHR) will have extensive notations, perhaps several pages, detailing the headache's character, onset, severity, duration, and modifying factors. Now let's assume that the woman was treated for a migraine, had complete relief, and was driven home by her husband several hours before suffering a massive stroke. When an expert reviews the chart, the natural conclusion may be that "the woman had a migraine, the care seemed reasonable, and it was just an unfortunate circumstance that could happen to anyone." But what if the woman's husband had a different perspective? What if he said that his wife never had a "migraine" but simply used the word as a descriptor, and that he had to wheel her out of the ER because her headache never resolved? The husband's perspective might have had a profound influence on the expert's opinion, but the expert never even knew that his recollections existed.

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Although sharing such a viewpoint may seem like common sense, some attorneys are reluctant to memorialize third-party accounts or to share them at an early juncture. Their belief is that it may improperly influence an expert's opinion or somehow adversely impact discovery. Such unfounded concerns derail case momentum by allowing experts to reach incompletely informed conclusions by the expert. While an attorney should never exert influence over an expert's interpretation of a medical record, allowing an expert to concurrently consider supplemental information is appropriate and necessary, especially when a contrarian view is absent from the medical records. It is also mission critical to averting The Expert’s Dilemma. 

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There are two approaches to disclosing undocumented facts to which the plaintiff or another percipient person will testify, and both involve sharing information that is already slated to emerge during discovery. The first tact is to prepare and share a neutral memorandum summarizing the omitted facts to which the plaintiff or firsthand observer will testify. Alternatively, you may memorialize the facts in a declaration which the plaintiff or third-party would review, edit, and sign. The document would be included with the first set of medical records sent to the expert, and a carefully constructed cover letter would explain the purpose of the supplemental information. Whether presented as a memorandum or declaration, the supplemental information is intended to summarize fully discoverable facts to which the plaintiff or third party will eventually testify. The expert is simply tasked with reviewing the information as a hypothetical consideration within the context of their independent and impartial review. Since this situation is unfamiliar to most experts, the following steps are instrumental to delineating the expert’s role from that of the trier of fact:

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1. Clarify Your Intent: Carefully explain the purpose and intent of the memorandum or declaration, emphasizing that it is meant to summarize facts which will eventually be disclosed during discovery.

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1. Explain Hypothetical Contexts: Inform the expert that such facts are not in evidence yet and should be considered strictly as hypotheticals within the context of the patient encounter.

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1. Define Expectations for Independent Review: Instruct the expert to rely upon their training, experience, and accepted medical knowledge when impartially considering any information, whether contained in the medical record or supplemental documents.

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1. Outline the Expert’s Scope of Task: Explain that the expert’s singular role is to interpret, contextualize, clarify, and explain the events that occurred. Only the trier of fact is allowed to determine the validity of any facts in evidence; the expert does not decide who is telling the truth.

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1. Provide a Framework for Conditional Analysis: Stress that the expert's role is to consider all such information as conditionally hypothetical. For example, "If Fact 'X' is found to be true (or false), how does that affect your opinion on 'Y'?"

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1. Keep Communication Open: Instruct the expert to call you with any questions prior to preparing a written report.

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By giving your expert an early look at facts that will eventually emerge during discovery, you can save cost, strengthen the foundation of your case, and mitigate the 11th-hour surprise of The Expert’s Dilemma.