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Medical Malpractice Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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VIII. Testifying is an Art
Be prepared to be challenged. Remember there are two sides – and, at least, two experts holding different opinions. These differences may be to liability, causation or to the extent of injuries. While an expert should never advocate an opinion he or she does not believe in – the case will only be viable if the expert sticks to the opinion that he or she does believe in. Your expert is less likely to be made to look foolish and lacking credibility, if the expert knows and stands by his or her position, rather than waffling and seeming to be ready and willing to agree with whatever either lawyer says. In short, you should prepare your expert to defend and explain his or her opinion when cross-examined.
When your expert gives medical testimony in a legal dispute, it is important to you’re your audience. Your audience is the person or persons who will be considering and making a decision based on your testimony. Is it a mediator, an arbitrator, an arbitration panel of lawyers, a judge or a jury?
If the case is, for instance, one involving a person injured in a motor vehicle accident (or another situation in which the alleged negligence of another caused physical and/or psychological injury), and if it is a jury trial, the jury panel will probably have limited medical knowledge or familiarity with medical terms and records. An effective expert explains medical information to them in much the same way as he would to a patient and his family. This calls for a simpler and more basic educational approach.
On the question of causation, all the jury needs to know is that the negligent act or omission was a factor in producing the injury. This will require that the witness understands the mechanics of the incident brought about by the negligent act or omission well enough to explain its causal role in the claimant's injuries. If asked to testify as to the causes and effects of a plaintiff's injuries, bear in mind that standards of proof vary depending on what legal forum you are in. When a plaintiff is claiming another person negligently "caused" his or her injury, all that needs to be shown, under Pennsylvania law, is that the act or omission was a material factor in producing the injury and damage. It must be more than an insignificant factor. However, it need not be the only cause.
Therefore, if you are being asked to address the causal relationship between a motor vehicle accident, for example, and plaintiff’s injuries, an expert’s testimony that the accident was a material factor is the evidence the court needs to decide whether plaintiff has a viable claim. Even if other factors, including plaintiff's physical condition just prior to the accident, contribute more to plaintiff's injuries than the accident itself, plaintiff's causation claim is sound, as long as the accident was a material factor in his or her present injuries. The jury, of course, makes the final decision, after receiving instructions from the judge on this standard.
However, if the negligently caused injury aggravated plaintiff's pre-existing injury or disability, plaintiff is entitled to reasonable compensation for the consequences of such aggravation resulting from the negligent act. Therefore, in order to deal effectively with the element of “causation”, it is important to help the court or jury identify the specific consequences of such an aggravation and to separate them from the injury or disability which already existed. The expert will, of course, want to review the medical records of the pre-existing injury or disability, especially if he or she were not the treating doctor.
Once causation is established, the expert is often asked to explain to the jury the medical bases of “damages" resulting from the injury. Damages include:
1) the full extent of medical treatment required (past, present and future);
2) all the pain and suffering the plaintiff had to endure, continues to experience and will continue to be afflicted with in the future;
3) loss of income resulting from any disability caused by the injury; and
4) impairment to future earning capacity due to any permanent disability resulting from the injury.
A jury is more likely to be impressed with the sincerity of an expert’s belief in plaintiff's case, as long as it is based on the facts and on a consistent and defensible medical explanation. The lay jury will not be as likely to be impressed with complex and detailed medical analysis as would professional fact-finders, such as administrative law judges. A simple, sincere and sympathetic presentation of plaintiff's medical condition as a result of the injuries in question will help the lay jury return a verdict in plaintiff's personal injury trial.
Use your pictures or models to illustrate any medical terms you need to use. Demonstrative evidence (i.e., visual aids) are very helpful in presenting expert opinion testimony. This can range from the x-rays themselves, films of procedures, to anatomical models, pictures, flip charts, models of the body parts injured or a white board with colored pens. Help the jury grasp fully the significance of plaintiff's’ injury with visual aids illustrating plaintiff’s injury. The opposing attorney may object to your use of visual aids. Counsel should respond that these are not “exhibits.” Your “aids” are not being offered as evidence in and of themselves (of course, x-rays are evidence). Rather, they are to assist and aid your expert in giving your testimony. As such, the judge will usually allow them, as long as they accurately illustrate the proffered testimony. They are a great tool in presenting complicated opinion evidence in an interesting, dynamic and visual method, rather than abstract language in a stream of testimony.
