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Doctors Take the Stage

Expert witnesses are principal actors in Minnesota malpractice cases.

Physicians may not feel quite as comfortable in the courtroom as in the clinic, but they need to take center stage in any medical malpractice proceeding. In fact, in Minnesota, you can't start Act I without them.

To launch a medical malpractice action against a physician, you need an expert. Minnesota law requires that within 180 days of initiating a malpractice suit, the plaintiff's attorney must submit an affidavit stating that the facts of the case have been reviewed by "an expert whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial."

The job of the expert, whether for the plaintiff or the defendant, is to articulate whether the physician being sued deviated from the standard of care for a particular specialty and treatment, and whether that deviation caused injury. To be effective, experts need to have practical knowledge and experience in the field that is being discussed.

Witnesses set their own fees, with the going rate between $200 and $300 and hour - higher for some with unique expertise.

Casting the Role

Finding the right individual to serve as an expert is a first and formidable hurdle for attorneys on both sides of a malpractice case. Even though attorneys say there's always someone willing to testify, that someone may not have the credentials and credibility they seek.

For personal injury attorney John Carey, J.D., of Sieben Grose Von Holtum & Carey, the search often begins in the offices of the physicians who cared for his client after the alleged misdeed. "I talk to them to get the facts," he says. "Sometimes, they say this is bad medicine, and I'll be an expert." More often, though, they say they don't want to be involved.

In those situations, Carey might turn to the network of attorneys and physicians he's worked with over the years, to the physicians he's heard speak at national conferences, or to the expert witness referral services his firm sometimes uses. Such referral sources provide a range of services - from tracking down experts to report writing, Carey says.

Referral firms are neither a starting nor ending point for defense attorney Cecilie Loidolt, J.D., of Meagher & Geer, P.L.L.P. "I wouldn't use on of these sources," she says, explaining that she often chips away at the integrity of plaintiffs' witnesses during cross-examination by linking them to expert witness referral services - the inference being that they're in it for the money.

Loidolt says she starts her search for the right expert close to home - at the doors of physicians she's worked with before. She checks with her partners, talks to the defendant, or calls the medical chiefs at local hospitals or clinics. her goal is to find a local witness. She recently tried a case in which the plaintiff hired two experts from other states. "He told the jury they were national experts," she says. "I said, 'if by national he means they're from out of town, O.K., they're national. But we have national experts right here in Minnesota at the University of Minnesota, at Mayo Clinic. We have very qualified physicians.'"

Mark Whitmore, J.D., a defense attorney with Bassford Remele, says he too prefers home-grown experts over those from other states. "Unless I have a unique case in which we really need a national expert, I like to use somebody from around here. You know how Minnesotans are. They seem to relate best to people from their own backyard."

First, the Truth

What lawyers say they don't want is a professional expert. Carey, specifically, doesn't want a witness who always testifies for plaintiffs. "If you have a bias like that, you're a gun for hire," he says. "I want to know if there actually was medical malpractice and if it caused any harm."

"Tell the truth" tops a long list of techniques for being a successful expert witness in a 400-page book on the topic by former personal injury attorney Steven Babitsky, J.D. "First, we tell them to tell the truth," says Babitsky, J.D. "First, we tell them tot tell the truth," says Babitsky, president of a Massachusetts-based company, SEAK, which educates physicians on legal issues. "we then tell them, despite the fact that they're an expert in their particular area of medicine, that in order for them to do well and testify well, they need to know legal rules an procedures. You don't want to play chess until you know how to move the pieces."

Whitmore emphasizes the importance of preparation. "I want somebody who's willing to take time to understand the medical record," he says. "They'll spend an extra hour. They'll make a timeline. They will know about the patients' underlying history."

No Eggheads

Attorneys say all the preparation in the world is meaningless if the expert can't communicate to the jury and the judge. "I want someone who can sit in the witness and and, in essence, teach the jury, and explain the big picture and the context of the event as it occurred in relation to the patient's overall health," Whitmore says. "You see a lot of doctors who are really, really smart and experienced, but they lack the ability to relate everything to the jury."

Loidolt advises witnesses to imagine that they're talking to residents or even a patient. "You know more than this than anybody else in the courtroom," she tells them. "That takes the edge off. It makes it less nerve-wracking."

Serving as an expert witness is an exacting experience that is not for everyone. "Some hat it," Whitmore says, and some love the intellectual challenge it provides. But Whitmore emphasizes that experts are truly main character in medical malpractice cases, noting that many call such cases "battles of the experts." - C. Peota

Evidence-Based Experts

Mark Whitmore, J.D., a defense attorney with Bassford Remele, notes that the push toward evidence-based medicine appears to be affecting the way experts are viewed in the courtroom. In fact, in Minnesota, scientific evidence itself goes on trial in a proceeding called a Frye-Mack hearing.

Whitmore says in the past couple of years, there's been an uptick in the number of these hearings, which are opportunity for the judge to evaluate the merits of an expert's science prior to trial. Experts' conclusions can no longer be based simply on their training and experience, he says. There needs to be a scientific basis to support conclusions.

If the scientific facts don't add up, Whitmore says, then the judge can refuse to let that expert testify at trial. And without that expert, judges are required to dismiss the case. "It can be a really meaningful tool if you have an expert who has reached beyond what the medicine and the science may be," he says. - C.P.

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