EXPERT WITNESS TESTIMONY KIM CURRY, PhD, ARNP Assistant Professor University of Tampa

MEDICAL MALPRACTICE A type of tort law (wrongful act) A type of tort law (wrongful act) Four elements must be proved for medical malpractice: duty, breach of duty, proximate cause, & damages Four elements must be proved for medical malpractice: duty, breach of duty, proximate cause, & damages Experts are used to interpret medical standards of care to the jury Experts are used to interpret medical standards of care to the jury It is very difficult for most jurors to evaluate clinical evidence It is very difficult for most jurors to evaluate clinical evidence

PROCESS STEPS INITIAL CONTACT INITIAL CONTACT INITIAL REVIEW INITIAL REVIEW AFFIDAVIT AFFIDAVIT CASE PREPARATION CASE PREPARATION DEPOSITION DEPOSITION TRIAL PREPARATION TRIAL PREPARATION TRIAL TRIAL RESULTS AND FEEDBACK RESULTS AND FEEDBACK

INITIAL CONTACT The plaintiff or defendant attorney contacts an appropriate expert and discusses the case The plaintiff or defendant attorney contacts an appropriate expert and discusses the case

INITIAL CASE REVIEW File is sent to expert witness File is sent to expert witness Witness evaluates file to ensure it is appropriate for scope of practice Witness evaluates file to ensure it is appropriate for scope of practice Witness reviews medical record for initial opinion: is plaintiff/defense attorney view consistent with expert opinion? Witness reviews medical record for initial opinion: is plaintiff/defense attorney view consistent with expert opinion? If not, case is declined. If not, case is declined. It is the expert’s time that is purchased It is the expert’s time that is purchased

AFFIDAVIT After initial review and agreement, attorney drafts an affidavit stating the position on the case After initial review and agreement, attorney drafts an affidavit stating the position on the case Expert reviews, revises, signs, and has notarized Expert reviews, revises, signs, and has notarized This affidavit is presented to the opposing side This affidavit is presented to the opposing side Arguments are drawn up Arguments are drawn up

CASE PREPARATION Extensive review of medical record Additional evidence gathered Expert provides medical references

DEPOSITION This is the worst part! This is the worst part! The deposition drives the trial The deposition drives the trial Many depos are face to face, some video Many depos are face to face, some video Transcripts shared with both sides Transcripts shared with both sides Only hear your own testimony Only hear your own testimony Includes: Multiple attorneys Adversarial approach Court reporter Debriefing with collaborating attorney

PREPARATION FOR TRIAL After all depositions are complete After all depositions are complete All depos are shared with all attorneys All depos are shared with all attorneys All depos are shared with all experts All depos are shared with all experts Experts must critique all other expert testimony and assist collaborating attorney with weaknesses and strengths Experts must critique all other expert testimony and assist collaborating attorney with weaknesses and strengths

TRIAL TESTIMONY Only hear own testimony Only hear own testimony Attorneys try to rephrase from deposition Attorneys try to rephrase from deposition Added drama for jury Added drama for jury Plaintiffs on view for jury Plaintiffs on view for jury

RESULTS AND FEEDBACK Generally attorneys contact experts after trial to share results Generally attorneys contact experts after trial to share results May discuss appeals May discuss appeals Expert should ask for feedback on all face to face testimony for own development Expert should ask for feedback on all face to face testimony for own development

MARKETING SERVICES Largely word of mouth Largely word of mouth Credentials must match the case Credentials must match the case Formal courses are available Formal courses are available Pricing for market Pricing for market Often starts with risk managers Often starts with risk managers

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