EXPERT WITNESS EXPERT WITNESS TESTIMONY TESTIMONY KIM CURRY, PhD, ARNP KIM CURRY, PhD, ARNP Assistant Professor Assistant Professor University of Tampa University of Tampa
Jan 13, 2016
EXPERT WITNESS EXPERT WITNESS TESTIMONYTESTIMONY
KIM CURRY, PhD, ARNPKIM CURRY, PhD, ARNP
Assistant ProfessorAssistant Professor
University of TampaUniversity of Tampa
MEDICAL MALPRACTICEMEDICAL MALPRACTICE
A type of tort law (wrongful act)A type of tort law (wrongful act) Four elements must be proved for Four elements must be proved for
medical malpractice: duty, breach of medical malpractice: duty, breach of duty, proximate cause, & damagesduty, proximate cause, & damages
Experts are used to interpret medical Experts are used to interpret medical standards of care to the jurystandards of care to the jury
It is very difficult for most jurors to It is very difficult for most jurors to evaluate clinical evidenceevaluate clinical evidence
PROCESS STEPSPROCESS STEPS
INITIAL CONTACTINITIAL CONTACT INITIAL REVIEWINITIAL REVIEW AFFIDAVITAFFIDAVIT CASE PREPARATIONCASE PREPARATION DEPOSITIONDEPOSITION TRIAL PREPARATIONTRIAL PREPARATION TRIALTRIAL RESULTS AND FEEDBACKRESULTS AND FEEDBACK
INITIAL CONTACTINITIAL CONTACT
The plaintiff or The plaintiff or defendant attorney defendant attorney contacts an contacts an appropriate expert appropriate expert and discusses the and discusses the casecase
INITIAL CASE REVIEWINITIAL CASE REVIEW
File is sent to expert witnessFile is sent to expert witness Witness evaluates file to ensure it is Witness evaluates file to ensure it is
appropriate for scope of practiceappropriate for scope of practice Witness reviews medical record for initial Witness reviews medical record for initial
opinion: is plaintiff/defense attorney view opinion: is plaintiff/defense attorney view consistent with expert opinion?consistent with expert opinion?
If not, case is declined. If not, case is declined. It is the expert’s time that is purchasedIt is the expert’s time that is purchased
AFFIDAVITAFFIDAVIT
After initial review and agreement, After initial review and agreement, attorney drafts an affidavit stating attorney drafts an affidavit stating the position on the casethe position on the case
Expert reviews, revises, signs, and Expert reviews, revises, signs, and has notarizedhas notarized
This affidavit is presented to the This affidavit is presented to the opposing sideopposing side
Arguments are drawn upArguments are drawn up
CASE PREPARATIONCASE PREPARATION
Extensive review of Extensive review of medical recordmedical record
Additional evidence Additional evidence gatheredgathered
Expert provides Expert provides medical referencesmedical references
DEPOSITIONDEPOSITION
This is the worst This is the worst part!part!
The deposition The deposition drives the trialdrives the trial
Many depos are face Many depos are face to face, some videoto face, some video
Transcripts shared Transcripts shared with both sideswith both sides
Only hear your own Only hear your own testimonytestimony
Includes:Includes: Multiple attorneysMultiple attorneys Adversarial Adversarial
approachapproach Court reporterCourt reporter Debriefing with Debriefing with
collaborating collaborating attorneyattorney
PREPARATION FOR TRIALPREPARATION FOR TRIAL
After all depositions are completeAfter all depositions are complete All depos are shared with all All depos are shared with all
attorneysattorneys All depos are shared with all expertsAll depos are shared with all experts Experts must critique all other expert Experts must critique all other expert
testimony and assist collaborating testimony and assist collaborating attorney with weaknesses and attorney with weaknesses and strengthsstrengths
TRIAL TESTIMONYTRIAL TESTIMONY
Only hear own Only hear own testimonytestimony
Attorneys try to Attorneys try to rephrase from rephrase from depositiondeposition
Added drama for Added drama for juryjury
Plaintiffs on view Plaintiffs on view for juryfor jury
RESULTS AND FEEDBACKRESULTS AND FEEDBACK
Generally attorneys contact experts Generally attorneys contact experts after trial to share resultsafter trial to share results
May discuss appealsMay discuss appeals Expert should ask for feedback on all Expert should ask for feedback on all
face to face testimony for own face to face testimony for own developmentdevelopment
MARKETING SERVICESMARKETING SERVICES
Largely word of Largely word of mouthmouth
Credentials must Credentials must match the casematch the case
Formal courses are Formal courses are availableavailable
Pricing for marketPricing for market Often starts with Often starts with
risk managersrisk managers
THANK YOUTHANK YOU
QUESTIONS?QUESTIONS?