• Remind the expert that the basis of their expert opinions include, at a minimum, their experience, training, review of medical records (and any films or studies), depositions, and general familiarity with literature and organizations.
• Tell the expert to refer to the records as necessary: no guessing!
• Discuss hypothetical questions.
• Find out if they did any literature searches. If so, ask what they did and what they found.
• Additionally, tell the expert something like this: º
If given a document, take time to review it before answering questions about it.
Listen to the questions and make sure you understand them fully before responding.
If there is an objection, make sure you really heard the question and have considered its implications.
º Do not joke or be argumentative. º Your opinions are not what YOU do, but what a reasonable physician in that position in that community would do – they are professional, not personal, opinions.
º Don’t assume anything when considering a question and/or answering a question.
º Be mindful of being asked same question again at a different time in the deposition.
V. Standard of Care and How Expert is Familiar with it:
Now, having covered the basics, you can address the
expert’s specific areas of testimony. Do not assume that just because your expert has testified before in Maryland that they know the definition of the standard of care or causation. • Accordingly, if designated on standard of care, go over the definition in Maryland and have them repeat it to you until they get it right. Tis process can also suggest areas of focus for any future sessions.
• Te expert should already have a copy of their designation. Review it with them. Discuss how it was drafted, and that they previously reviewed it and continues to agree with its contents.
• Tell the expert that the same or similar community standard is not a national standard of care.
Explore with them the ways that they are familiar with the standard of care applicable to defendants in, for instance, Baltimore, Maryland in January 2005:
º Do an internet search on the city and find out population demographics, number of hospitals, facilities, medical availability, and you can do a similar search for your expert – their city, main hospital, etc. Teir knowledge can also come from a prior hospital where they have worked, so obtain that information.2
Research the defendants’ practice: hospital websites, information from corporate designees, and the defendant and employee fact witnesses. Tell the witness to go to the hospital website and review and confirm that it is similar to their facility or those in which they
2 Why is it important to know demographics? I believe it should defeat any potential angle the
defense may try to take to show unfamiliarity with the standard of care. However, the term "similar" in the "same or similar community" standard should refer to similarity in terms of medical resources, facilities, equipment, and services, so that the conduct of a physician is assessed in light of the resources available to the physician, and not demographics.
28 Trial Reporter / Summer 2009
previously practiced. º
board certification: show how the standards of practice, testing, etc. are the same throughout the country;
for a hospital: establish JHCAO accreditation of the institution (usually mentioned on its website), and how those requirements are the same throughout the country;
for individual physician defendant: show that
Show or explain that (if applicable): both communities have labs, radiology equipment
defendant’s or other local practices are affiliated with larger city-based medical organizations that have relationships and referral networks to major city area medical specialists and institutions;
and services, such as CT, MRI, and are both within approximately the same distance to major hospitals and major trauma centers;
the nature of medical education (the medical schools and residency programs) is that it is national with national testing (especially with internet and other technology);
the boards that certify medical specialties are national;
your expert teaches these medical students who then practice all over country;
continuing medical education programs and refresher courses are national in nature regarding the presenters and attendees;
they read the same peer-reviewed medical journals and have access to the same information available on the internet;
they have spoken with doctors at these or similar facilities and have been to similar facilities; they have attended seminars with these doctors;
they have accepted patients from doctors at such facilities;
they have experience in medical administration and training;
the key medical issue is not an esoteric problem – the treatment for the patient’s condition (for instance, signs and symptoms of distress, reading tracings, proper reporting techniques; chain of command) was commonly known, has been in literature and in practice for many years; i.e., it is basic medicine for -- and treatment of -- these types of patients.
they have trained other doctors in procedures at issue;
Twenty Percent Rule:3 For standard of care experts, this statute applies to
certifying and testifying experts. Te language in the statute states that a qualifying expert “does not devote annually more than 20 percent of professional activities to activities that directly involve testimony in personal injury claims.” Make
3 Courts & Jud. Proc. 3-2A-04(b)(4).
Below is a list of some ways you can confirm with the witness their familiarity with the standard of care in Maryland:
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