How to Choose An Expert Witness for an Urgent Care Case
Article by W. Anthony Gerard, MD, FACEP, FAAFP
Expert witnesses often are crucial to the success of a plaintiff or defense case, and a good expert is essential to your client's chances of success. I do plaintiff and defense cases, and would love to help with your case. Since I trained in family medicine, but have had a career in emergency medicine and urgent care, I am uniquely qualified as an urgent care expert. Please feel free to call me to discuss your case. I can always help, even if you need a different expert since I'm an experienced expert and am willing to discuss cases with no obligation.
Although the medical care provide in the case is the most important feature, a good expert effects the outcome more than any other witness. I am an experienced expert in urgent care, and will help you understand the medical aspects of the case. Most importantly, I am experienced in doing depositions and trial testimony, so I will help the jury understand the medical issues. I am also an objective expert, and I have helped juries understand disputed issues on many medical malpractice cases. The jurors' final opinion about a case often depends as much on the communication skills of the attorneys and experts on the case as any other factors.
Not all expert witnesses are created equal, and some excellent physicians do not make good expert witnesses. Experts need to be able to review the facts of a case logically, without hindsight bias. Many physicians have strong credentials and extensive clinical experience, but are not skilled at depositions or "on the stand." Others may communicate well, but do not have the required professional experience. I have experience as an expert and am excellent in depositions and the courtroom. Checking for disciplinary actions, ensuring familiarity with standard-of-care, and confirming the ability to communicate complex medical issues clearly to a jury are part of finding a good expert.
What qualities distinguish a good urgent care expert from a just an adequate one? There are four things to consider(1) Training and experience in either family medicine or emergency medicine (2) An active practice in urgent care (3) Experience as an expert witness (4) Congeniality ad Credibility, combined with strong communication skills.
State laws vary about the requirements for expert witness testimony. In some states, the expert witness must be almost identical to the defendant regarding practice and training, and in most states they must be in a similar medical specialty as the defendant. Many courts stipulate the amount of time an expert witness spends clinically compared to working as a "professional witness". Since several specialties are common in urgent care settings, I can help attorneys find an expert if I am not the ideal expert. But for almost every state, my expertise is ideal for urgent care cases for eitherthe defense or the plaintiff.
Because urgent care facilities see patients of all ages and genders, most urgent expert witnesses are trained in primary care or emergency medicine. These two specialties comprise the majority of physicians who practice in urgent care settings. (There may be some other physicians, from internal medicine or surgical subspecialties, working in urgent care locations with unique patient populations, but EM and FM comprise the majority. I've review many cases from both EM and FM physicians and some cases where the defendant was trained in internal medicine. I have also reviewed alot of cases where the provider was a PA (physician assistant) or NP (nurse practioner).
There are two alternative boards in urgent care, but they are not ABMS boards, and these physicians are usually residency trained and board certified in EM or FM. ( I have expertise on board certification issues, and can help attorneys find an expert, even on cases where I am not the primary expert). On many cases involving a PA or NP, an awareness of the professional relationships between the " advanced practice provider and the supervising or collaborating physician is important. (I am a published author on this issue).
Urgent care experts must be able to testifying on the applicable standard of care in a medical malpractice case, whether it is a defense case or a plaintiff case. They must have expert knowledge about the standard of care in urgent care, and must be in active practice of urgent care. Many states require that the expert has actively practiced in the same or a related field of medicine within one year of the case, and I am still doing urgent care. So when attorneys are choosing an expert, they should look for someone whose medical education, training, and current clinical practice are similar to the defendant's. I can help find this kind of expert, even if I am not the primary expert.
Expert witnesses do not need to be from the same state as the defendant physician, but proximity is sometimes helpful. But the quality of the expert matters more, and I believe I am a highly qualified expert. Selecting an expert who is in the same region of the country as the attorney offers practical advantages for depositions and trials, but excellence in medical malpractice matters more. I am sure you are familiar with the requirements of your state for experts, since some states have local standards of care. Internet based depositions are now common, and Zoom or Microsoft Teams make it much easier to use an out of state expert. I've done cases from other states and helped the attorney find a local expert. (These are not as common, but sometimes it is difficult for attorneys to find the right expert.)
Using a new expert, who has not done many medical malpractice cases often requires that the attorney guide the expert on the logistics of the litigation process. But sometimes an attorney wants a " fresh face" as an expert, and I am willing to help attorneys find new experts if I am not the right person.
Even excellent physicians do not automatically make good experts, unless they understand the legal process. I have more than 3 decade of experience as an expert, and fully understand how medical malpractice cases transpire. Most attorneys prefer an expert with some previous experience, but if you are looking for someone new, I am happy to make referrals. Although my extensive experience can make a significant difference at deposition and in the courtroom, I never mind when attorneys request a referral.
My experience, and the experience of other seasoned experts, gives us good comprehension of "the rhythm" of a case. Experience provides professionalism, and this is the only way that experts learn to be effective. We make less mistakes at deposition and in trial, when logic and calm need to prevail. My experience in testifying for both plaintiffs and defendants makes me an excellent expert.
Attorneys should avoid hiring experts who will testify to whatever they are asked to. If an expert is a "hired gun" (a " professional testifier") this often becomes apparent as the case unfolds. On the other hand, new experts can be intimidated by opposing counsel. So the ideal expert has experience, but is is not "battle hardened."
Congeniality and likability are also important, since you want an expert who the jury likes and trusts. I have learned from years of experience that an expert needs to convey calm, professionalism and be objective. Some physicians are great doctors, but not good communicators. They tend to use technical, medical jargon instead of explaining things clearly in ordinary language. Jurors prefer experts who are sincere and can communicate in a fair and balanced way. Medical expertise does not impress juries if an expert is too didactic. The best expert witnesses use simple language to communicate complicated medical issues, but do not speak down to the jury.
It is important to speak to potential experts so you can get a sense for their knowledge of the issue and ability to communicate. Clarity and brevity are good qualities to look for. Choose a well spoken expert who the jury will like. Plaintiff's experts and defense experts need to convey what the standard of care is or was, and be empathetic since medical care is often provided under difficult circumstances. If we speak about a case, and you do not feel I am the right expert, you will still benefit from my experience and insights into how to choose an expert.
An expert witness must be able to define and explain what the standard of care is, and determine if the provider met this standard. This is based on what a reasonable and competent practitioner in the same field would have done under similar circumstances. Next, the expert must be able to determine if there was a breach - ie if the the defendant's actions fell short of that professional standard. Finally, there has to be causation and damages. There must be a direct link between the provider's negligence and what caused the patient's injury. In many cases, attorneys need both a standard of care expert, and a caution expert to explain the extent of the harm. On defense cases, similar but opposite issues apply.
I have done many cases for both plaintiff and defense attorneys, and it is not unusual for the opposing council to scrutinize the other side's expert closely. This of course applies to me, and I have calmly been thru many of these challenges.
Medical malpractice law is based on tort and contract law, and new experts may not be familiar with this. Malpractice can occur when there is negligence, lack of consent, medical errors, or a breach of a contract, defamation, or failure to prevent foreseeable medical injuries . Negligence is most common, and requires the existence of a duty to the patient ( ie a physician-patient relationship), a deviation from the standard of care, damages and causation. New experts may need to be coached about this, since physicians do not have legal training. As an experienced expert in urgent care, I have encountered this many times.
Federal courts follow Daubert but State courts are divided, so the admissibility of expert testimony is dependent on the jurisdiction. An expert must be objective and reliable, and able to analyze a medical record without hindsight bias. Not all experts are able to do this, and some provide unethical testimony that is not supported by scientific evidence. Independent judgment is a important feature to look for in an expert.
Guidelines from Professional Societies Re. Expert Witnesses
Urgent care organizations often use guidelines developed by emergency medicine or family medicine organizations, since there is overlap between these specialties. The guidelines require expert witnesses to be actively practicing clinicians (currently licensed with experience in the specific area of care they are testifying about).
Emergency physicians who do not work in rural ED's or in urgent care settings may not know the nuances of these practice locations. So the guidelines emphasize evidence-based standards and the established standard of care. Personal opinions, especially when the outcome of a case is known, should be avoided unless the opinion complies with this standard. Expert witnesses should not link their compensation to the outcome of the case. Honest, evidence-based testimony regarding standards of care is emphasized.
"Urgent Care Association" guidelines are not be as widely publicized as those from the American College of Emergency Physicians (ACEP), but follow similar standards. Some professional medical societies have published recommendations or guidelines for expert witnesses. This includes the American College of Emergency Physicians.
I am on the National ACEP Medical Legal Committee, and am engaged with leaders from Urgent Care associations. I have expertise on health policy and staffing that could help find the perfect expert.
ACEP has several programs to help it's members with legal issues, and tries to ensure the highest quality and appropriate expert witness testimony. Although ACEP's Medical Legal activities apply only to emergency physcians, I have a broad scope of practice and use these same standards in my practice. I expect this of my peers who do expert witness work in urgent care.
Expert witnesses also help educate the jury, the judge and attorneys, so they have to be able to "translate" medical terminology into lay terms. The expert witness should possess current experience and ongoing knowledge in the area where he or she is asked to testify. So physicians who serve as expert witnesses should limit their retention as experts to cases where they have true expertise. Expert witnesses should strive for objective to the extent that they would be comfortable with their testimony regardless of whether it was used by the plaintiff or defendant. When various acceptable treatment options exist, or diagnosis is difficult, experts need to be candid about this. Expert witnesses must be objective about whether a breach in the standard of care caused a poor outcome. Poor outcomes can occur independent of deviations from the standard of care, and may not cause the patient outcome.
Attorneys should look for experts who have a ethical business practice. Marketing, advertising, contractual agreements, and payment for services must be professional and appropriate. Compensation for expert witness testimony varies, but should be reasonable and appropriate for the time commitment required. Some physicians may have contracts where their fees are excessive, and attorneys should avoid retaining these experts, and experts should not be reimbursed based on any contingencies related to the case's outcome.
Please call for a CV or to discuss your client's case.