How do attorneys in medical malpractice cases prove the standards of care through expert witnesses? In their article Locking in Standards of Care (Trial Magazine, August 2019), attorneys Christian C. Mester and Michael J. Winkelman recommend the following techniques:
1. Ask the right questions of medical experts to lock them down on the standards of care issue.
2. Work with your expert witness to determine the relevant standards of care.
3. Review the literature yourself to verify the correct standard of care and confirm it matches the one proposed by the expert.
4. Review the defendant’s websites and their marketing and policies for useful information.
5. Identify industry standards that the experts have relied on.
6. Identify professional organization standards that establish standards of care for the medical expert’s field.
7. Closely questions the opposing expert to lock in the expert.
8. Gradually build up the industry standard through opposing medical expert.
The authors also give an excellent example of how these tips can be applied in practice.
For example, if your case involves a failure to diagnose appendicitis, your line of questioning may look as follows:
• Do you agree with Dr. Smith [defendant doctor] that appendicitis, if left untreated, can be deadly?
• Do you agree with Dr. Smith that if treated promptly, appendicitis is a relatively benign medical issue?
• As an ER physician, part of what you do is reach a differential diagnosis?
• And you reach a differential to rule in and rule out certain disease processes?
• As Dr. Smith testified, do you agree a proper differential diagnosis lists threats to the patient from most serious to least serious?
• And you want to rule out the most serious threats first?
• You order tests to rule in or rule out certain disease processes?
• Can we agree the patient had right low abdominal pain upon presentation?
• Can we agree Dr. Smith testified he knew the patient had rebound tenderness?
• Can we agree the patient had a fever upon presentation?
• Can we agree these symptoms, taken collectively, can suggest appendicitis?
• The way to definitively diagnose appendicitis is a sonogram?
• And a sonogram was not ordered here?