LEGAL BACKGROUND – THE FOUR ELEMENTS OF A MEDICAL MALPRACTICE CASE
You will gain a clear understanding of the four distinct legal elements of a medical malpractice claim. You will also learn the type of evidence that lawyers use to address each element, how proof requirements may vary by jurisdiction or applicable state statutes, and how all of the above affects your work as a medical expert witness.
AFFIDAVITS OF MERIT AND PRE-SUIT OPINIONS – UNDERSTANDING AND PREPARING
Medical experts are often called upon to offer medical opinions in the form of affidavits of merit and/or pre-suit expert opinion reports. You will learn how these filings are relevant to your role in the case, how these filings can later be used against you and otherwise, how you should prepare before signing such documents, the legal and ethical responsibilities such filings place on you and how to avoid potential pitfalls.
STATE SPECIFIC RULES GOVERNING MEDICAL EXPERT TESTIMONY IN MALPRACTICE CASES – HOW TO AVOID PITFALLS
You will be made aware of the types of state-specific rules that may govern expert testimony in a medical malpractice case, including rules covering board certification licensure, clinical practice requirements, having the same specialty as the defendant, fees/income, and testifying after retirement. You will learn to avoid the potential pitfalls that these rules may present.
YOUR QUALIFICATIONS – HOW TO AVOID AND DEFEAT CHALLENGES
You will learn the laws that govern how and why a person is qualified to testify as a medical expert witness in a medical malpractice case and how to avoid likely scenarios which can make you vulnerable to qualifications challenge.
HOW TO AVOID AND SURVIVE DAUBERT CHALLENGES
You will learn how to recognize, avoid, and survive the specialized malpractice scenarios that may prompt a Daubert/Frye challenge, such as opinions on whether the use of certain medication caused an injury/medical condition, whether a medical outcome would be different had more timely medical intervention occurred, whether screening tests would have prevented a medical outcome, and whether opinions on permanent and/or future medical damages are speculative. You will also learn the role of medical literature in preventing or defeating such challenges.
STANDARD OF CARE – HOW TO DEVELOP DEFENSIBLE OPINIONS
You will learn techniques for developing defensible opinions on the standard of care, including understanding how attorneys prove or refute the standard of care, how the standard of care may vary by jurisdiction, the difference between geographical standard of care vs. a national standard of care, and what to do when the standard of care is amorphous. You will also learn how to use various objective sources of the standard of care that can assist you in demonstrating or defending your opinions on the standard of care.
CAUSATION – HOW TO DEVELOP DEFENSIBLE OPINIONS
You will learn what type of evidence constitutes legally permissible proof of causation including medical statistics, learned treatises, and medical literature, and how you can effectively address and opine on this important element of a medical malpractice claim.
DAMAGES–HOW TO DEVELOP DEFENSIBLE OPINIONS
You will learn the types of permissible damages allowed in medical malpractice cases including compensatory damages, medical and emotional damages, economic damages, wrongful death damages, future damages (including future lost wages and future lost earnings and sales projections), and punitive damages, and how you may be able to opine on damages via life care reports, censuses, disability reports, and life expectancy projections.
LOSS OF CHANCE AND INFORMED CONSENT CLAIMS – HOW TO DEVELOP DEFENSIBLE OPINIONS
Loss of chance and informed consent are alternative theories of medical malpractice with unique proof requirements that are based in large part on medical expert witness opinions. You will learn the proof requirements for these two claims, identify the type of opinion evidence that is used to address these claims, learn how to use medical literature and statistics to address these claims, and how you can be most effective in proving/defending these types of claims.
AFFIRMATIVE DEFENSES-HOW TO DEVELOP DEFENSIBLE OPINIONS
You will learn the most common affirmative defenses in such cases including statute of limitations, the discovery rule, assumption of the malpractice risk, patient negligence, and how expert medical opinions are used to address such defenses, such as what constitutes continuous treatment, whether a patient is incompetent, what medical scenarios (such as complications or unexpected outcomes) require disclosure to patients, and how you can develop optimal opinions to support or counter these affirmative defenses.
HOW TO SCREEN RETAINING LAWYERS AND PROPERLY MANAGE THE RELATIONSHIP WITH RETAINING COUNSEL
You will learn techniques to screen both plaintiff and defense attorneys, including potential red flags such as rush assignments, bullying tactics, withholding or providing partial medical records, unrealistic expectations, and balking on retention agreements or fees for reviewing extensive medical records, that may signal the need for caution in accepting certain assignments or associating with certain counsel. You will also learn the differing expectations of plaintiff’s counsel and defense counsel in a medical malpractice case, and the role that the malpractice insurance carrier plays in the defense of the medical malpractice case.
HOW TO WRITE A SUPERB REPORT IN A MEDICAL MALPRACTICE CASE – SPECIAL TECHNIQUES
You will learn the latest special report writing techniques in medical malpractice cases including the use of hyperlinks, frequent and accurate footnoting, effective timelines, embedded videos, and citing medical research.
HOW TO EXCEL AT A MEDICAL MALPRACTICE EXPERT DEPOSITION – SPECIAL TECHNIQUES
You will learn how to deal with and overcome the unique challenges you will face in testifying at deposition in a medical malpractice case including dealing with sophisticated counsel, handling testimony about detailed medical records and timelines, effectively translating medical jargon, and persuasively conveying and defending your medical opinions in the face of in-flux standards of practice or conflicting medical opinion.
HOW TO EXCEL DURING DIRECT EXAMINATION IN A MEDICAL MALPRACTICE CASE – SPECIAL TECHNIQUES
You will learn what jurors find persuasive from medical experts, what they do not find persuasive and how you can make the best impression in front of the jury as you present your opinions during direct examination. Techniques covered will include a focus on demeanor and language, how to persuasively explain your medical credentials, the proper use of visual aids, and how to effectively explain your opinions and translate complicated medical concepts to the lay jury.
HOW TO EXCEL DURING CROSS-EXAMINATION IN A MEDICAL MALPRACTICE CASE – SPECIAL TECHNIQUES
You will learn what opposing counsel is after during cross-examination in a medical malpractice trial and how to remain calm and effective during even the most aggressive cross-examinations. We will show you strategies for capably dealing with the most challenging cross-examination topics in medical malpractice cases, including counsel’s attempts to maximize the sympathy factor for a patient with potentially catastrophic injuries, seeking concessions regarding medical judgement, being confronted with potentially contrary medical literature, accusations that medicine is an inexact science or that some medical outcomes cannot be predicted, lack of a doctor-patient relationship with the patient, knowing the medical outcome at the outset of the expert engagement, limited experience with the relevant medical issues, not practicing in the geographical area in question, or no longer being a practicing physician.
ETHICAL AND EMPLOYMENT CONSIDERATIONS FOR THE MEDICAL EXPERT IN MEDICAL MALPRACTICE CASES
Using real-life examples, you will learn how to anticipate and deal with potential hospital, corporate, or medical organization pushback against your forensic medical malpractice work. You will also learn potential ethical traps for the unwary which can subject you to civil and professional liability. You will be provided with practical suggestions to avoid potential liability and manage risk.