The Expert’s Curriculum Vitae (C.V.) – Part X

Every doctor has a C.V., which outlines his professional career; where the expert went to university, medical school, dental school, postgraduate training, state licensure, hospital appointments, teaching appointments, and ending with a list of articles and book chapters the expert has published.  The C.V. will give you clues as to whether the expert will be an effective witness and present your case in its best light.  The C.V. of an outstanding expert can fill many pages and list dozens of articles and book chapters the expert has authored in his specialty.

Before your lawyer hires any doctor as a medical expert or dental expert, your lawyer should obtain a copy of the doctor’s C.V., and meticulously verify the doctor’s credentials.

A Connecticut lawyer found an Obstetrics & Gynecology expert through a Medico-Legal Service.  The expert’s C.V. claimed that he practiced his specialty in a New York hospital; however, a check revealed that the hospital had been closed for over 10 years.  The doctor’s only income came from testifying as a professional expert witness, and he could not qualify as a credible expert in Obstetrics & Gynecology.

Another lawyer hired a specialist in Otolaryngology (Ear, Nose, and Throat), whose C.V. showed excellent credentials.  After the lawyer spent a lot of money, and just before trial, he learned that the expert had neglected to tell the lawyer that his medical license had been revoked for 38 counts of fraud in treating patients.  It cost a lot of money to replace the expert.

In the U.S., the Association of State Medical Board Directors lists all licensed physicians, in all states, under their State Board of Medical Examiners’ or State Board of Osteopathic Examiners’ website.  You will find a listing of the expert’s education, teaching credentials, licensing information, specialty, address, and if the expert has a Public Board Action against his or her license.

If you have a U.S. dental case, you can find the same information about your dental expert at Dental Watch that has links to all state dental boards or dental examiners websites.

The College of Physicians and Surgeons of Canada provides websites for each Canadian Province that will give you information about your medical expert such as education, teaching credentials, practice information, specialty, terms and conditions of practice, and if there is a legal proceeding against the expert’s medical license.

If you have a Canadian dental expert witness, go to the Royal College of Dentists of Canada (RCDC) website to look up your dental expert in the Province in which he or she practices Dentistry.

The Rule Is: Before you hire an expert witness, obtain a copy of the expert’s C.V. and verify the expert’s credentials.  If the expert is a phony, or has a Public Board Action against his or her license, you can be sure the defense lawyer knows about it and will use it to destroy your case.

Contact us at 800-225-JDMD (5363) to have your medical or dental malpractice cases reviewed by JD.MD’s qualified expert witnesses.

In 1933 the American Board of Medical Specialties (ABMS) began certifying physicians to assure they were qualified to practice in their respective specialties and subspecialties.  The following is a list of the 24 ABMS Member Boards:

Allergy & Immunology                                             Otolaryngology

Anesthesiology                                                         Pathology

Colon & Rectal Surgery                                          Pediatrics

Emergency Medicine                                               Physical Medicine & Rehabilitation

Family Medicine                                                       Plastic Surgery

Internal Medicine                                                     Preventive Medicine

Medical Genetics                                                     Psychiatry & Neurology

Neurological Surgery                                               Radiology

Nuclear Medicine                                                     Surgery

Obstetrics & Gynecology                                        Thoracic Surgery

Ophthalmology                                                         Urology

Orthopaedic Surgery

The American Osteopathic Association was formed in 1897.  In 2015 it began creating a unified accreditation system.  Below is a list of 18 American Osteopathic Association (AOA) Certifying Boards:

Anesthesiology                                                         Ophthalmology & Otolaryngology

Dermatology                                                             Orthopedic Surgery

Emergency Medicine                                               Pathology

Family Physicians                                                    Pediatrics

Internal Medicine                                                     Physical Medicine & Rehabilitation

Neurology & Psychiatry                                          Preventive Medicine

Neuromusculoskeletal Medicine                           Proctology

Nuclear Medicine                                                     Radiology

Obstetrics & Gynecology                                        Surgery

The following is a list of 9 National Commission on Recognition of Dental Specialties (NCRDSCB) and Certifying Boards:

Dental Public Health                                                Orthodontics

Endodontics                                                              Pediatric Dentistry

Oral & Maxillofacial Pathology                               Periodontology

Oral & Maxillofacial Radiology                               Prosthodontics

Oral & Maxillofacial Surgery

There are other self-designated boards, outside the ABMS, AOA, and NCRDSCB.  Most self-designated boards are bona fide credentials that are only awarded to qualified specialists, but some can easily be obtained, without any special training.  A few are fictitious titles that can be bought; others are one-man organizations.  If the medical expert or dental expert lists a self-designated board that is questionable, the expert may be discredited by the opposing lawyer, or the judge may not let the expert testify as a medical expert or a dental expert.  Your lawyer should carefully check the expert’s credentials.

The Rule Is: Check the expert’s credentials and learn everything about the doctor before you entrust the expert with your case.

Contact us at 800-225-JDMD (5363) to have your medical or dental malpractice cases reviewed by JD.MD’s qualified expert witnesses.

You have read the dos and don’ts about finding a medical expert or dental expert and are probably wondering what you should look for when you interview an expert.  The following are pointers you and your lawyer should bear in mind when talking to doctors:

1. The expert must be certified in his specialty by one of the 24 recognized member boards of the American Board of Medical Specialties; by one of the 18 American Osteopathic Association Certifying Boards; or by one of the 9 National Commission on Recognition of Dental Specialties and Certifying Boards, if the expert is a specialist.

2. The expert should give you a written guarantee that his or her state and federal licenses are in good standing, that he or she has never been subject to disciplinary proceedings by a hospital, a medical organization, or a dental organization that would impair the expert’s credibility and effectiveness.

3. The expert should have at least 5 years in active practice, or full-time teaching in a medical school or dental school, and not have been retired more than 2 years.

4. The expert must have impeccable professional and ethical standing in the medical or dental community.

5. The expert must have the ability to identify the medical or dental and legal issues in a case and express them in simple terms a jury can understand.

6. The expert must be cool and collected under fire and not waffle or panic under attack by opposing lawyers.

7. The expert should not be a professional witness or have any financial participation in the outcome of the case.

8. The expert should be located far enough away, so the expert will not be pressured to drop out of the case by his or her local colleagues. But if possible, the expert should be close enough, so travel is not too expensive or time consuming. You do not want an expert from your hometown or county.

9. The expert’s fees must be reasonable and consistent with those charged by other professionals. If the fee is too high, it may mean the expert feels he is making a personal sacrifice to help you or does not like lawyers and is sticking it to you. If his fee is too low, it probably means there is something in his past or credentials that impairs his effectiveness as an expert witness.  Either way, the expert will be an unreliable witness.

The Rule Is: Hire the best expert witness you can find and find out all about the expert and fees before you entrust the expert with your case.

JD.MD, Inc., has served legal communities in the U.S. since 1978.  Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by our medical experts and dental experts.

A Medico-Legal Service – Part VII

These are organizations that locate expert witnesses for lawyers in medical malpractice and dental malpractice cases.  A Medico-Legal Service can provide you with a qualified expert witness and give your lawyer assistance with medical research and in mastering the vital, technical questions that arise in a malpractice case.  It is the easiest way to locate a medical expert witness or dental expert witness, unless you know a doctor, who is qualified in the right specialty and who will testify for you.

Defendant doctors rarely have trouble finding an expert witness.  Physicians in the hospital, and the local medical community, want to help another physician in trouble.  Likewise, dentists are available to assist their colleagues, when they are in trouble.  Doctors see a malpractice lawsuit against another doctor as planting the seeds for lawsuits against them.  No matter how bad the malpractice, there is no lack of medical experts or dental experts ready to testify on behalf of a doctor or a hospital.

A Medico-Legal Service works like an employment agency.  They have hundreds of independent doctors, in all medical and dental specialties, who are willing to testify against another doctor, if they believe a case has merit.  These services can also provide medical literature to educate your lawyer in the technical, medical or dental questions involved in your case.

Some Medico-Legal Services will also guarantee you an expert, if your case has merit.  Before hiring a Medico-Legal Service, your attorney should carefully review the service’s terms and conditions and guarantee for placing an expert in your case.

One service charged a woman $1,500.00 to review her medical records.  They sent her lawyer a report saying her case had merit.  But, the report was written by a doctor, who would not testify or act as her expert witness.  He only reviewed files and wrote reports for $1,500.00.  Then, for an additional $1,000.00, the service offered to send her file to a doctor, who would testify.  The second doctor disagreed with the opinion of the first doctor and refused to testify.  So, the service went back to the woman and said, “The expert who testifies does not agree with the doctor who evaluated your case.  If you want to come up with another $1,000.00, we can send it to another expert for a third opinion.  There is no guarantee that he will support it either.”  At that point, the woman had nothing to show for her $2,500.00, and she dropped her case.

Another service charged a Michigan woman $800.00 for the name of a doctor, who would act as her expert witness, and sure enough, they gave her the name of a specialist, who was delighted to help her.  Unfortunately, it turned out that he had not practiced his specialty in over 15 years; he had never held a hospital appointment for more than a few months; and he could not examine the woman, because he had no malpractice insurance.   The expert’s sole source of income came from acting as a professional expert witness.  When he testified at trial, the defense lawyers discredited him so thoroughly that it only took the jury 15 minutes to deliver a verdict for the defendant doctor.

The Rule Is: Before you pay a doctor to act as your medical expert or dental expert, your lawyer should carefully check the expert’s credentials to make sure the expert is a competent witness.  If you work through a Medico-Legal Service make sure you and your lawyer understand their terms and conditions and warranties, if any.

JD.MD, Inc., has served the legal communities in the U.S. and Canada since 1978.  Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by our medical experts and dental experts.

Doctors Who Have Testified for Plaintiffs – Part VI

There are physicians, who do not seek work as medical expert witnesses but who have testified for plaintiffs.  These doctors are ideal expert witnesses.

How do you find such an expert witness?  In an earlier post, we advised you to ask around your neighborhood, talk to people you know, check internet directories, check local newspapers, or check your local court records to locate a winning lawyer.  You may be able to find a doctor, who will help you, in the same way.  That is what some lawyers do.

If you try to locate an out-of-state medical expert witness, be sure to talk to your lawyer before making any move.  Some states have strict rules about who can testify.  The most famous doctor in the United States cannot testify as an expert in Virginia, unless he is licensed in Virginia or qualifies for licensing in Virginia.  A doctor must be licensed and practice in Tennessee, or a contiguous state, to testify as an expert witness in a Tennessee medical malpractice case.  These are what are known as Locality Rules.  They are a carryover from the last century, when a doctor went to a local medical school, then settled in a small town and never had any contact with the outside world.  The courts said that only a doctor from the same community could give an opinion about another doctor’s performance.

Today, doctors receive essentially the same training and have opportunities to go to medical meetings, participate in continuing education, and research information on the internet.  So, more and more states are wiping the old locality rules off the books and allowing any qualified doctor to give an opinion concerning medical malpractice.  But, locality rules are still on the books in some states, and you need to check with your lawyer to be sure you do not recruit a medical expert witness, who will not qualify in the state where your lawsuit was filed.

State Locality Rules

 National Standard of Care

The states in this category hold doctors to a national standard with no geographic limitation: Alabama, Alaska, California, Connecticut, District of Columbia, Delaware, Florida, Georgia, Hawaii, Indiana, Iowa, Kentucky, Maine, Massachusetts, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, Ohio, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Vermont, Wisconsin, and Wyoming.

Statewide Standard

The states in this category hold doctors to a statewide standard: Arizona, Virginia, and Washington.

Same Community Standard

The states in this category hold doctors to a local community standard: Idaho and New York (New York may deviate and apply a statewide or national standard).

Same or Similar Community Standard

The states in this category hold doctors to a local or same community standard: Arkansas, Illinois, Kansas, Maryland, Michigan, Minnesota, Nebraska, North Carolina, North Dakota, Oregon, and Tennessee.

Similar Community Standard for General Practitioners and National Standard for Specialists

The states in this category are Colorado, Louisiana, Montana, Pennsylvania, and South Dakota.

The Rule Is: Before engaging the services of an out-of-state medical expert witness, make sure the expert will qualify in the state where the malpractice lawsuit was filed.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s qualified medical experts and dental experts.

The Professional Expert – Part V

A professional expert advertises his or her services as a medical expert witness in legal journals and on the internet.  The expert may be a superb witness or a disaster, but he is risky.  At first glance, it seems like a good deal; a supposedly, qualified physician, who advertises his services, is willing to assist you.  You think you can count on the professional expert to testify and present your side of the argument, in a convincing manner.  Before you commit a lot of money to a professional expert, you should check the following websites to verify the expert’s board certification and the expert’s standing with his or her state medical board: certificationmatters.org and docfinder.docboard.org.

1. The medical profession controls what a doctor can do in treating patients. But, a doctor can advertise his services in law journals and on the internet and represent himself as anything he wishes, even if his license has been revoked or he has been retired for many years. Among the physicians who, in the past, have advertised their services as expert witnesses: one was in jail for mail fraud; one whose medical license was revoked for fraud; one who advertised himself as an expert in four or five different specialties – the list goes on and on.

It is important to find a good medical expert witness, but the doctor’s past can kill your case.  Defense lawyers also read law journals and malpractice insurance companies keep extensive records on physicians, who testify against them.  The fact that a physician has advertised his services to the legal profession means that he can be branded a professional expert witness, or a hired gun, by the opposing lawyer.  If there is anything professional or personal in his background that can be used to discredit him, the defense lawyer will know about it and smear a professional expert witness in front of the jury.

2. Professional experts can be expensive. It can cost thousands of dollars to have a professional expert study your medical records and tell you whether you have a meritorious case, with no assurance that he or she will testify for you in court.

3. Some professional experts are unscrupulous and will demand huge increases in their fees after you have already paid them, and it is too late to find a substitute expert. In a Louisiana case, a lawyer hired a professional expert to testify in a drug overdose case. The expert spent the week before trial helping the lawyer prepare the case and then suggested calling another professional expert, who his friend.  The night before trial, the two doctors went to the lawyer and said they would not testify the next day, if they were not paid right then.  One demanded and received $7,000.00 and the other $10,000.00.

4. The professional expert has no back-up. If the court refuses to recognize him as an expert, or he drops out, or you find that his past is too unsavory, the money you have spent is lost, and you are back to square one – maybe at a critical point in your case, when it is too late to find a replacement expert.

The Rule Is: Before you hire an expert witness, obtain a copy of his curriculum vitae and verify his credentials.  If he is a phony, you can be sure the defense lawyer knows about it and will use it to destroy your case.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s qualified medical experts and dental experts.

 The Medical Authority – Part IV

Some lawyers prefer to read the medical literature to find an author, whose articles support their claim and try to persuade the medical authority to act as the medical expert witness.  When this approach works, it is great, and you may get a world-class medical authority as your expert witness.  However, your chances are not good for the following reasons:

1. Most physicians distrust lawyers. The more eminent the physician, the more deep-seated this antipathy. Most medical authorities will not give you or your lawyer an appointment, even if you offer to pay for their time, and not one in a 100 will consent to assist you, even if he has written articles that support your case.

In a New Jersey case, a lawyer advised a woman to sue her doctor for malpractice, but the potential defendant doctor was the lawyer’s close friend.  They played golf together on weekends.  Did the lawyer try to help his doctor friend by arranging an amicable settlement?  Did he tell his client that he could not represent her, because he was a friend of the doctor, and she should consult another lawyer?  No.  He referred her to another lawyer for a large referral fee, while continuing to play golf with the doctor.  The doctor eventually found out about his “good buddy’s” treachery, and the story was circulated through the medical profession.

2. Medical authorities are not interested in your problem and are not going to take time off from their practices to testify for you. While your case may be the most important thing in your life, to them it is some other doctor’s mess. They do not want to get involved in your case and risk criticism from their fellow physicians.  Chances are, even if you succeed in getting an interview with a medical authority, he or she will charge you for an office visit and politely tell you to “get lost.”

3. A reason why physicians are reluctant to help you is that one of the tactics lawyers use to win court cases is to discredit the opposing witnesses. Defense lawyers have leeway in questioning a medical expert witnesses’ credentials and credibility, and they often cross the line between legitimate questions and a personal attack. Most physicians do not wish to be subjected to this type of abuse, especially when they are usually being paid less to testify in court than they earn in their practices.

4. Appeals to medical authorities to help you in the public interest, or to clean-up the medical profession, and risk their professional standing, are doomed to failure. Physicians know that malpractice lawyers are seeking money for their clients and do not have an interest in the medical profession, except as a source of income. Furthermore, they believe any cleaning up should be done by doctors themselves and not through malpractice lawsuits.

5. Your lawyer’s expenses, when traveling to interview medical authorities, will be charged to you as legal expenses, in addition to his fees, and can take a large chunk out of your settlement.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s medical expert witnesses.

A Relative or Close Friend who is a Doctor – Part III

What if you have a relative or close friend who is a doctor and who offers to help you?

You are sure he will not let you down, and furthermore, he might even do it for nothing and save you money.  That would solve a lot of problems.  It could also be one of the surest ways to destroy your case.  The law says that an expert witness may not have an interest in the outcome of the case, in which he testifies.  That is to make sure the expert’s testimony is reliable and he does not try to mislead the jury by knowing that he will be paid more if the case is won, than if it is lost.  The expert has to receive the same reward or payment, no matter who wins, and preferably before he gets on the witness stand.

Earlier we described a Kentucky case in which the lawyer tried to use his brother-in-law as his medical expert witness, and the judge refused to let him testify.  If your expert is a relative or close friend he may even be disqualified by the judge, and not allowed to testify, because of a potential interest in the outcome of the case.  Even if the judge allows him to testify, the opposing lawyers will question him about his connection to you, how much he is being paid, and who is paying him.  If you were a juror, what would you think of a medical expert witness, who admitted that he was doing it to help a relative or friend?  Would you think his testimony was impartial?  Would you believe him?

Even more dangerous is the local doctor who offers to help you only because he really wants to help the doctor you are suing.  So, he lulls you into a false sense of security, or gives your lawyer misleading opinions, until it is too late to find another medical expert witness or amend your pleadings.  It does not happen often, but when it does, it is a disaster.  If it happens, you may be able to repair the damage, but it is better not to have it happen at all.

 The Rule Is: Try not to use local doctors, who practice in the same community as the defendant, either to evaluate your case or act as an expert witness.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s medical expert witnesses.

The Local Doctor – Part II

In a Maine case, a woman was suing a hospital for prescribing the wrong diabetes medication, which resulted in the loss of her leg.  Her lawyer hired a prominent doctor in a nearby city, to act as her medical expert witness.  However, at trial on the witness stand, the doctor gave an opinion that was completely different from the opinion he had given her lawyer.  It was so damaging to her case that the opposing lawyer asked the doctor when he had formulated his opinion, to which he replied, “Oh, about an hour ago.”  The judge called both lawyers aside and asked, “Which side is this man testifying for?”  The jury ruled against the plaintiff, and she received nothing.  The doctor later told her lawyer he had heard “by the grapevine” he would be in serious, political trouble at his hospital, if he testified for her and she won her case against the other doctor.

The so-called Conspiracy of Silence is really a Conspiracy of Intimidation.  The medical profession has effective methods of dealing with turncoats and mavericks, and the doctor who offers to testify against another doctor, in the same community, can easily be made to understand he is risking his political future in the medical profession.  It is not uncommon for a doctor’s colleagues, or his insurance company, to exert pressure to force him to bow out at the last minute, when replacing a medical expert witness may be difficult and expensive, if not impossible.  This puts your case into the legal equivalent of cardiac arrest.

An upstate New York woman was suing her surgeon for having cut the nerves to her vocal cords while doing a thyroid surgery.  Her family doctor agreed to testify for her, and her lawyer recruited a local surgeon from the same city.  Her case looked solid, but a week before trial, the family doctor called to say he would have to withdraw from the case.  He discovered that he and the defendant doctor had the same malpractice insurance company.  The family doctor had been notified that his malpractice insurance would be canceled if he testified.

Nevertheless, the woman and her lawyer were confident of the outcome, since they still had the surgeon on board, who was their main medical expert.  But, two days before trial, her lawyer received a call from the surgeon, saying that he and his wife had taken an “emergency” vacation to Florida and could not make it back for trial.  Since the court could not order the surgeon to return from Florida, and it was too late to find a substitute medical expert witness, that was the end of her case.  Her lawyer settled the case for nuisance value – less than what the trial would have cost the doctor’s insurance company in legal fees and about 5% of what the case was worth.

The Rule Is: Reputable physicians will rarely testify against their local colleagues, and one who will is probably a maverick, who does not have the professional standing or reputation in the medical community to impress a jury.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s medical expert witnesses.

We will discuss several ways to find good or bad expert witnesses, who will win or lose your case.  Each way has its advantages and disadvantages.  Experts that appear to be the least expensive, and easiest to engage their services, may turn out to be the most expensive, if they lose your case.  Here is how to avoid the common pitfalls.

The Local Doctor

You may approach several doctors you know to act as your medical expert witness.  Or, maybe a local doctor has told you privately that the doctor you are suing is a butcher, who made a mess of your surgery.  You are pretty sure you can get one of them to help you, but do not count on it.  A doctor usually cannot afford to testify against his local colleagues or hospitals, if he values his practice and income.  It is not realistic to expect him to do so.  Chances are he will refuse to help you.

Even if a local doctor offers to help you, he will probably change his mind, when he realizes his participation in your case could permanently damage his career.  A verbal promise of assistance from a local doctor, who will not put anything in writing, is a sign that he is not going to help.  If a doctor has told you that one of his colleagues botched your case, ask him to give you a letter setting forth his opinion.  No matter how critical the local doctor may have been when talking to you in private, you will find that he likely will not put his criticism in writing, as your medical expert witness.  If you ask him for his opinion in the presence of a witness, he will deny he ever said it.

A famous malpractice lawyer once said, “Almost no physician would testify that a colleague had blundered.  In the privacy of his office, a doctor might tell you that a certain brother of the scalpel was a blunderer who, in his gross incompetency, had maimed his patient.  However, on the witness stand, he would perjure himself in firm tones, declaring the defendant to be a skilled surgeon, exercising his best medical judgment.”  Even when they are willing to back-up their opinions and testify, local doctors are notorious for their tendency to disappear, or be otherwise unavailable for trial, or change their minds at the last moment and refuse to testify, or to “take a nose dive” (change their testimony on the witness stand.)

The Rule Is: Reputable physicians will rarely testify against their local colleagues, and one who will is probably a maverick, who does not have the professional standing or reputation in the medical community to impress a jury.

Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s medical experts and dental experts.