Expert Article Library

Cross-Examination of Expert Witnesses in a Medical Negligence Case

By: Jeffrey A. Milman   Email: jmilman@lopez-hodes.com.

I. INTRODUCTION

Cross-examination of an expert witness in a medical negligence case can be a frightening experience. It can make or break a case. As Ralph Waldo Emerson said, “Fear always springs from ignorance.” The purpose of this article is to provide an overview of the cross-examination of experts in a medical negligence setting. Frankly, the information contained in this article can be used for any expert cross-examination.

II. WHEN TO START PREPARATION FOR CROSS-EXAMINATION

As plaintiff's attorneys' in medical negligence cases, we have one distinct advantage at the outset of a case. Before we file a lawsuit, we are often afforded the luxury of reviewing the records and choosing which consultant/expert we wish to retain for purposes of preparation and trial.

The time to begin cross-examination of the defense experts commences before the case is ever filed. A meticulous review of the medical chart can often set the framework for cross-examination of the defense medical expert. This includes:

1. Good facts contained within the medical chart for the plaintiff;

2. Charting by medical personnel often referred to as CYA or cover your own (you get the point.) Every lawyer at one time or another has viewed the chart with glee in noting, for example, a nurse's note indicating that the physician was paged 3 or 4 times and never came.

3. Alterations in the chart including false charting, late entries and sometimes forgery;

4. Inflammatory facts.

The second opportunity to commence cross-examination of the defense expert is the very first meeting with your own expert prior to the case being filed. It is mandatory that you ask your own consultant how they envision the defense will attempt to defend the case. For example, I often ask my consultant, suppose I am the defense counsel consulting with you on this case, what defenses can we raise? You should also ask your consultant to provide you with any textbooks, articles, treat [sic] and information that will assist you in cross-examining the defense expert.

Please note that this process is not fixed. Since we do not know who the defense will designate as their experts until the case has been filed and litigated, this process is an ever-changing one. Many experts in a particular field know each other and can help you plan your cross-examination once experts are designated.

It goes without saying that your consultant/expert should truly be an expert in the field. Nothing can sink your own case faster than choosing the wrong expert. Make sure you know the pros and cons of your own expert because they will have to stand up under cross-examination. For example, you need to know the following: At a minimum you should determine the following from your own expert:

1.  ________ charges;

2. Whether they are truly a specialist in the field. For example, you do not want to find out that your perinatologist has not delivered a baby on a birth injury case for the past 10+ years after they have just completed their direct examination criticizing the method of delivery in a birth injury case;

3. Contrary positions taken in other cases;

4. Whether their opinion is contrary to generally accepted literature.

The list is endless but the maxim is that you must make sure your expert is the correct one for the case. Often times your colleagues or the CAOC lists can be the answer in assisting you in finding the correct expert.

III. THE EXPERT DESIGNATION

Evidence Code section 801 provides the framework for testifying as an expert. In essence, it is a two-prong formula that provides an expert may testify if:

1.   The subject matter is beyond the common experience such that it would assist the trier of fact and

2.   It is based upon material that may reasonably be relied upon by an expert to formulate and express such opinions.

It is not the purpose of this article to discuss the distinctions between California law and the Federal gate policy of Daubert. For purposes of this article, it is assumed that your medical negligence case is being prosecuted under State court rules.