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10 Things to Know: Selecting Medical Defense Experts

by Edward J. Kroger, MD, JD on September 16th, 2010

Medical experts are key to the successful defense of a medical malpractice case. In Texas, except in very limited situations, medical expert testimony is required to prove a claim of medical negligence. It is critical to have credible experts who can effectively communicate their opinions to the jury.  Juries most appreciate experts who are direct and honest. The following are a few essential tips on selecting a medical defense expert in Texas.

  1. Texas courts have long held that medical expert testimony is required to prove a medical negligence case both as to breach of the requisite standard of care and causation. See, e.g., Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977), and Hart v. Van Zandt, 339 S.W.2d 791 (Tex. 1965).
  2. Qualifications for expert witnesses are set forth in Texas Civil Practice and Remedies Code §§ 74.001 et seq. In brief, medical experts must be licensed to practice in the United States, be practicing medicine at the time of the alleged event or at the time of the testimony, have knowledge of the applicable accepted standards of care and be qualified to give opinions based on training or experience.
  3. Shortly after answering the lawsuit, defense attorneys should begin identifying the various areas of medicine in which expert testimony will be necessary or helpful and begin identifying potential experts in each field.
  4. Not only must experts be medically qualified to offer opinions, they must also be able to effectively communicate those opinions to a jury. To ensure this, it is good practice to meet in person any expert being seriously considered as a designated expert for a case. It is often helpful for lead trial counsel to meet with key experts early in the case to establish the best working relationship.
  5. The primary defense liability expert should practice in the defendant’s area of practice and, ideally, be actively treating patients with the same diagnosis as the care in question. Courts will usually limit each party to one witness in each area of practice. However, in any but the smallest cases, initially retaining more than one expert in the defendant’s field is a good practice. Ultimately, as discovery is completed in the case, one expert will emerge as the stronger or more appropriate expert witness to testify at trial.
  6. All else being equal, local experts have greater credibility than experts obtained from a distant city or state. Additionally, local experts are more convenient in terms of being able to meet with the expert, as well as for arranging depositions and trial testimony. The exception might be a world-renowned expert in the primary area of contention in the suit.
  7. Board certification is almost a must. Medical school positions and teaching experience are positives. Full-time faculty positions are generally more impressive to a jury than part-time or voluntary positions. Publications are a positive. Authorship of books is generally more impressive to a jury than authorship of articles. Authorship of articles or books that address the diagnosis or treatment at issue can be extremely helpful, but keep in mind that plaintiff’s counsel will often obtain the expert’s publications and use them against the expert and to cross-examine the defendant if at all possible. It is therefore important to gather and review a potential expert’s most significant and recent publications to ensure that they do not take positions or make statements that are damaging to the defense case.
  8. Many cases may be better defended by finding varied experts to provide expert testimony on specific aspects of the case. It is essential to have as many experts as the plaintiff attorney and preferably more. Defendants should designate an expert in each area of expertise that the plaintiffs choose (e.g., if plaintiffs designate an economist and a life care planner, defendants should also designate an economist and life care planner). In addition to liability experts, it is good practice to carefully review the damages being claimed by the plaintiff and ensure that appropriate experts are designated to address the claimed damages. Depending on defense themes and strategy, defense counsel may ultimately decide not to call certain experts to testify at trial. This decision is most common with respect to economist experts. In such a case, defense counsel will still use the defense’s damages experts to prepare for the depositions and trial examinations of the plaintiff’s experts.
  9. In Texas, the defendant health care providers can be experts on their own behalf and should be specifically designated as such. They essentially double the number of experts that plaintiffs can have in that field.
  10. Firms that specialize in defending health care clients typically have internal experts who serve as consultants as well as substantial access and experience in obtaining local and national experts.
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