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Seven Ways to Cross-Examine a Medical Expert

by Edward J. Kroger, MD, JD on June 24th, 2010

The cross-examination of a medical expert is as much art as science, and experience plays a major role.  Ultimately, though, there are only seven ways to attack a medical expert in a deposition.  While outlining your cross examination, carefully consider each of these seven areas, try to determine where the expert may be more or less vulnerable, then craft your questions in those areas.

Inadequate Qualification – You want to explore any weaknesses in the expert’s qualifications.  Your starting point will be the expert’s curriculum vitae.  Review the schools he attended, extent of his post-medical school education, board certification and recertification, where he has practice privileges.  To what extent does the witness supplement his medical practice with income from legal reviews and testimony?

Without Experience – Determine the extent to which he actively treats patients with the condition or procedure at issue, or whether he has any experience with the complications which occurred.  Does he have experience in the same practice setting?  With the same type of patient population?

Inadequately Reviewed – Has the expert reviewed all of the available and relevant medical records, expert reports, and depositions?

Assumptions are Erroneous – Carefully consider whether the expert has misunderstood or is not aware of one or more critical facts in the case, and has therefore based his opinions on erroneous assumptions.

Wrong on the Medicine – On rare occasions, you can show that an expert is simply wrong when it comes to discussing the medicine involved.  This obviously requires significant preparation and an exquisite understanding of the medicine on the part of the questioner.

Biased – Why would the expert not be equally fair to both sides.  You want to determine the amount of the fees being paid to the expert.  How many times has he testified for the other law firm?  Is she usually hired by plaintiffs or defendants?  Has the expert taken an extreme position in the field which is at odds with traditional opinions, and is he anxious to support his novel theory or treatment?

Experts Can Differ – You can usually get an expert to concede that there is at least some room for reasonable experts to disagree with respect to their opinions.

That’s it.  If you carefully consider the above areas, you will have covered all of the significant areas of attack on the opposing party’s medical expert.

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