EXPERT WITNESS EXPERT WITNESS TESTIMONYTESTIMONY

KIM CURRY, PhD, ARNPKIM CURRY, PhD, ARNP

Assistant ProfessorAssistant Professor

University of TampaUniversity of Tampa

MEDICAL MALPRACTICEMEDICAL MALPRACTICE

A type of tort law (wrongful act)A type of tort law (wrongful act) Four elements must be proved for Four elements must be proved for

medical malpractice: duty, breach of medical malpractice: duty, breach of duty, proximate cause, & damagesduty, proximate cause, & damages

Experts are used to interpret medical Experts are used to interpret medical standards of care to the jurystandards of care to the jury

It is very difficult for most jurors to It is very difficult for most jurors to evaluate clinical evidenceevaluate clinical evidence

PROCESS STEPSPROCESS STEPS

INITIAL CONTACTINITIAL CONTACT INITIAL REVIEWINITIAL REVIEW AFFIDAVITAFFIDAVIT CASE PREPARATIONCASE PREPARATION DEPOSITIONDEPOSITION TRIAL PREPARATIONTRIAL PREPARATION TRIALTRIAL RESULTS AND FEEDBACKRESULTS AND FEEDBACK

INITIAL CONTACTINITIAL CONTACT

The plaintiff or The plaintiff or defendant attorney defendant attorney contacts an contacts an appropriate expert appropriate expert and discusses the and discusses the casecase

INITIAL CASE REVIEWINITIAL CASE REVIEW

File is sent to expert witnessFile is sent to expert witness Witness evaluates file to ensure it is Witness evaluates file to ensure it is

appropriate for scope of practiceappropriate for scope of practice Witness reviews medical record for initial Witness reviews medical record for initial

opinion: is plaintiff/defense attorney view opinion: is plaintiff/defense attorney view consistent with expert opinion?consistent with expert opinion?

If not, case is declined. If not, case is declined. It is the expert’s time that is purchasedIt is the expert’s time that is purchased

AFFIDAVITAFFIDAVIT

After initial review and agreement, After initial review and agreement, attorney drafts an affidavit stating attorney drafts an affidavit stating the position on the casethe position on the case

Expert reviews, revises, signs, and Expert reviews, revises, signs, and has notarizedhas notarized

This affidavit is presented to the This affidavit is presented to the opposing sideopposing side

Arguments are drawn upArguments are drawn up

CASE PREPARATIONCASE PREPARATION

Extensive review of Extensive review of medical recordmedical record

Additional evidence Additional evidence gatheredgathered

Expert provides Expert provides medical referencesmedical references

DEPOSITIONDEPOSITION

This is the worst This is the worst part!part!

The deposition The deposition drives the trialdrives the trial

Many depos are face Many depos are face to face, some videoto face, some video

Transcripts shared Transcripts shared with both sideswith both sides

Only hear your own Only hear your own testimonytestimony

Includes:Includes: Multiple attorneysMultiple attorneys Adversarial Adversarial

approachapproach Court reporterCourt reporter Debriefing with Debriefing with

collaborating collaborating attorneyattorney

PREPARATION FOR TRIALPREPARATION FOR TRIAL

After all depositions are completeAfter all depositions are complete All depos are shared with all All depos are shared with all

attorneysattorneys All depos are shared with all expertsAll depos are shared with all experts Experts must critique all other expert Experts must critique all other expert

testimony and assist collaborating testimony and assist collaborating attorney with weaknesses and attorney with weaknesses and strengthsstrengths

TRIAL TESTIMONYTRIAL TESTIMONY

Only hear own Only hear own testimonytestimony

Attorneys try to Attorneys try to rephrase from rephrase from depositiondeposition

Added drama for Added drama for juryjury

Plaintiffs on view Plaintiffs on view for juryfor jury

RESULTS AND FEEDBACKRESULTS AND FEEDBACK

Generally attorneys contact experts Generally attorneys contact experts after trial to share resultsafter trial to share results

May discuss appealsMay discuss appeals Expert should ask for feedback on all Expert should ask for feedback on all

face to face testimony for own face to face testimony for own developmentdevelopment

MARKETING SERVICESMARKETING SERVICES

Largely word of Largely word of mouthmouth

Credentials must Credentials must match the casematch the case

Formal courses are Formal courses are availableavailable

Pricing for marketPricing for market Often starts with Often starts with

risk managersrisk managers

THANK YOUTHANK YOU

QUESTIONS?QUESTIONS?