the pathologist as a witness in medicolegal cases how to swim in shark- infested waters geoffrey...

THE PATHOLOGIST AS A THE PATHOLOGIST AS A WITNESS IN WITNESS IN

MEDICOLEGAL CASESMEDICOLEGAL CASES““How to swim in shark-How to swim in shark-

infested waters”infested waters”

Geoffrey Mendelsohn, Geoffrey Mendelsohn, M.D.M.D.With bonus photos from my With bonus photos from my

African safari tripAfrican safari trip

THE PATHOLOGIST AS A WITNESS IN THE PATHOLOGIST AS A WITNESS IN MEDICOLEGAL CASESMEDICOLEGAL CASES

Fact WitnessFact Witness Expert WitnessExpert Witness Defendant in medical malpractice Defendant in medical malpractice

casecase

FACT WITNESSFACT WITNESS

Pathologist/physician of recordPathologist/physician of record biopsybiopsy cytologycytology other diagnostic testother diagnostic test autopsyautopsy

Forensic caseForensic case


Official reports or affidavits may be Official reports or affidavits may be admissible as evidenceadmissible as evidence

Fact witnesses may be called to Fact witnesses may be called to testifytestify in order to legally establish in order to legally establish certain facts in a trial or hearingcertain facts in a trial or hearing


A fact witness is not called to testify A fact witness is not called to testify on behalf of or against anyone. A on behalf of or against anyone. A fact witness is called to establish fact witness is called to establish certain facts in a casecertain facts in a case

A fact witness will receive a A fact witness will receive a subpoena to appear at trialsubpoena to appear at trial

A fact witness is reimbursed for A fact witness is reimbursed for expensesexpenses


A fact witness is not on trialA fact witness is not on trial A fact witness may “set the tone” for A fact witness may “set the tone” for

a trial or hearing, e.g. demonstrate a trial or hearing, e.g. demonstrate that a process was either careful or that a process was either careful or sloppy, well documented or poorly sloppy, well documented or poorly documented, etc.documented, etc.


Everything we do must be accurate Everything we do must be accurate and well/clearly documentedand well/clearly documented

Even though a fact witness is not on Even though a fact witness is not on trial and does not appear on behalf trial and does not appear on behalf of any of the parties involved, of any of the parties involved, attorneys representing the parties attorneys representing the parties may try to discredit certain facts to may try to discredit certain facts to their advantagetheir advantage


Provide information in a neutral and Provide information in a neutral and unbiased mannerunbiased manner

Be professional, confident, and Be professional, confident, and authoritative authoritative

The expert witness is testifying on The expert witness is testifying on behalf of one of the parties involved behalf of one of the parties involved in a casein a case

criminal casecriminal case civil litigationcivil litigation

medical malpracticemedical malpractice other, e.g. product liability other, e.g. product liability

(asbestosis, pneumoconiosis, etc.)(asbestosis, pneumoconiosis, etc.)

EXPERT WITNESSEXPERT WITNESS (NOT WITNE$$)(NOT WITNE$$)

EXPERT WITNESSEXPERT WITNESS

The expert witness has special skill or knowledge The expert witness has special skill or knowledge gained by education, training or experiencegained by education, training or experience and and may be summonsed or requested to give an may be summonsed or requested to give an opinion or expert evidence during a trial, based opinion or expert evidence during a trial, based on his/her field of expertiseon his/her field of expertise

Have a current copy of your CV available – Have a current copy of your CV available – important to establish your appropriate important to establish your appropriate experience, expertise and skillexperience, expertise and skill

Ohio law requires that any expert witness in a Ohio law requires that any expert witness in a medical malpractice case be a licensed physician medical malpractice case be a licensed physician and spend at least 50% of his/her professional and spend at least 50% of his/her professional time in the practice of medicinetime in the practice of medicine


The admissibility of expert evidence The admissibility of expert evidence is predicated on the existence of is predicated on the existence of knowledge and experience that is knowledge and experience that is beyond that of the ordinary beyond that of the ordinary citizen and is applicable to the citizen and is applicable to the matter before the courtmatter before the court

Expert testimony has the effect of Expert testimony has the effect of proving factsproving facts


The expert witness testifies on behalf The expert witness testifies on behalf of one or more parties involved in the of one or more parties involved in the litigationlitigation

written reportwritten report discovery depositiondiscovery deposition videotaped trial depositionvideotaped trial deposition appearance at trial or hearingappearance at trial or hearing


An expert witness is reimbursed for An expert witness is reimbursed for expenses and for time spent on a expenses and for time spent on a casecase

An expert witness is not paid for An expert witness is not paid for his/her evidence or opinions his/her evidence or opinions

Be honest and accurate with time – Be honest and accurate with time – do not allow yourself to be enticed by do not allow yourself to be enticed by $$$$$$

WITNESS IN MEDICAL MALPRACTICE CASESWITNESS IN MEDICAL MALPRACTICE CASES

Expert witnessExpert witness for defendant(s)for defendant(s) for plaintiff(s)for plaintiff(s)

Defendant in a malpractice/liability Defendant in a malpractice/liability casecase

EXPERT WITNESS IN MEDICAL MALPRACTICE EXPERT WITNESS IN MEDICAL MALPRACTICE CASESCASES

An expert witness is reimbursed for An expert witness is reimbursed for expenses and time spent on a caseexpenses and time spent on a case

An expert witness is An expert witness is not paid for not paid for his/her testimonyhis/her testimony

Do not allow yourself to be enticed Do not allow yourself to be enticed by $$$. The current malpractice by $$$. The current malpractice crisis is due in large part to “hired crisis is due in large part to “hired guns” who will say anything for guns” who will say anything for moneymoney


Expert witnesses are retained by attorneys Expert witnesses are retained by attorneys representing one of the parties in a caserepresenting one of the parties in a case

Offer an opinion based upon review of Offer an opinion based upon review of medical records and/or pathology slidesmedical records and/or pathology slides

Issue a reportIssue a report in most cases, a written report will be in most cases, a written report will be

requestedrequested not all counties/states require a written not all counties/states require a written

reportreport


Before issuing a report and opinions:Before issuing a report and opinions: Understand the pertinent issues in the caseUnderstand the pertinent issues in the case

• discuss the case and the specific issues with the discuss the case and the specific issues with the attorneyattorney

• review whatever materials you need to render an review whatever materials you need to render an opinionopinion

• review any pertinent literaturereview any pertinent literature Be completely honest and truthful, do not “reach” Be completely honest and truthful, do not “reach” Stay within the confines of your area of expertiseStay within the confines of your area of expertise Remember that after issuing a report, you Remember that after issuing a report, you

may have to testify under oath at either a may have to testify under oath at either a deposition or trialdeposition or trial


Report must be accurate, precise, and Report must be accurate, precise, and pertinentpertinent

Make sure that you have the experience Make sure that you have the experience and knowledge to back up your opinionsand knowledge to back up your opinions

Opinions in medical malpractice cases are Opinions in medical malpractice cases are given given “to a reasonable degree of “to a reasonable degree of medical certainty”medical certainty” i.e. more likely than i.e. more likely than not, greater than 50% probabilitynot, greater than 50% probability


The validity of a report is based onThe validity of a report is based on the expertise of the witnessthe expertise of the witness the ability of the expert to issue an the ability of the expert to issue an

accurate and precise report that accurate and precise report that addresses pertinent issues in the caseaddresses pertinent issues in the case


In any litigation, you will be In any litigation, you will be aggressively challenged by attorneys aggressively challenged by attorneys representing the opposing partiesrepresenting the opposing parties• the attorneys will be knowledgeable in the the attorneys will be knowledgeable in the

matter at handmatter at hand• their experts will have educated and primed their experts will have educated and primed

themthem• they will make every effort to discredit you and they will make every effort to discredit you and

invalidate your opinionsinvalidate your opinions


Following the issue of expert reports:Following the issue of expert reports: Case may be dismissedCase may be dismissed Case may be settledCase may be settled Case may proceedCase may proceed

• discovery depositions (under oath)discovery depositions (under oath)• trial (under oath)trial (under oath)

It is in these settings that attorneys representingIt is in these settings that attorneys representingthe opposing party/parties will have an opportunitythe opposing party/parties will have an opportunityto question you and challenge your opinionsto question you and challenge your opinions


Discovery DepositionDiscovery Deposition Taken under oathTaken under oath Opportunity for attorneys representing Opportunity for attorneys representing

opposing parties to question you, establish opposing parties to question you, establish your opinions and the basis for those your opinions and the basis for those opinions, challenge your opinions, and try to opinions, challenge your opinions, and try to set the stage for invalidating your opinionsset the stage for invalidating your opinions


Discovery DepositionDiscovery Deposition Do not try to educate opposing attorney(s)Do not try to educate opposing attorney(s) Answer all questions as simply as possible – for most Answer all questions as simply as possible – for most

questions try to offer no more than a “yes” or “no” or very questions try to offer no more than a “yes” or “no” or very basic factual answerbasic factual answer

Make certain that you understand the question before Make certain that you understand the question before answeringanswering

Think very carefully before answering - the attorney will try Think very carefully before answering - the attorney will try to get you to contradict yourself or paint yourself into a to get you to contradict yourself or paint yourself into a cornercorner

Refer to your report, medical records, etc. before answeringRefer to your report, medical records, etc. before answering Following the deposition, review the deposition transcript Following the deposition, review the deposition transcript

very carefully and correct any errorsvery carefully and correct any errors

The attorney who has retained you as an expert will The attorney who has retained you as an expert will “protect” you during the deposition; he/she will object to “protect” you during the deposition; he/she will object to questions when appropriate and will advise you when questions when appropriate and will advise you when necessarynecessary


Trial TestimonyTrial Testimony Under oathUnder oath Questioned (“examined”) by the attorney Questioned (“examined”) by the attorney

representing the party on whose behalf representing the party on whose behalf you are testifyingyou are testifying

Goal is to convince the jury of your opinionGoal is to convince the jury of your opinion• attorney will establish your credentialsattorney will establish your credentials• educate the jury; during testimony, address the educate the jury; during testimony, address the

juryjury• convince the juryconvince the jury


Trial TestimonyTrial Testimony Questioning (“cross examination”) by Questioning (“cross examination”) by

opposing attorney(s)opposing attorney(s)- he will aggressively challenge you, your credentials and- he will aggressively challenge you, your credentials and your opinionsyour opinions- he will try to invalidate your opinions- he will try to invalidate your opinions- he will try to impeach your testimony by showing any- he will try to impeach your testimony by showing any

inconsistenciesinconsistencies review all previous reports and deposition transcriptsreview all previous reports and deposition transcripts do not contradict yourselfdo not contradict yourself do not get flustered or angry – stand firm and be do not get flustered or angry – stand firm and be

convincingconvincing

DEFENDANT IN A MEDICAL MALPRACTICE DEFENDANT IN A MEDICAL MALPRACTICE CASECASE

None of us is immuneNone of us is immune

DEFENDANT IN MEDICAL MALPRACTICE CASEDEFENDANT IN MEDICAL MALPRACTICE CASE

The basic process for a defendant in a The basic process for a defendant in a medical malpractice case is the same as medical malpractice case is the same as that outlined for an expert witnessthat outlined for an expert witness• you will not issue a reportyou will not issue a report• you will work closely with the attorney who is you will work closely with the attorney who is

representing you to:representing you to: understand the case and the issues involvedunderstand the case and the issues involved identify potential experts to testify on your identify potential experts to testify on your

behalf behalf you will not get your own opinions – you will not get your own opinions –

everything is done by the attorneyeverything is done by the attorney

MEDICAL MALMRACTICE CASEMEDICAL MALMRACTICE CASE

Expert witnesses for both sides will Expert witnesses for both sides will be identified and, when required, be identified and, when required, reports will be issuedreports will be issued

Discovery depositionsDiscovery depositions• defendant deposed by plaintiff’s defendant deposed by plaintiff’s

attorneyattorney• expert witnesses deposed by attorneys expert witnesses deposed by attorneys

representing opposing sidesrepresenting opposing sides

MEDICAL MALPRACTICE CASEMEDICAL MALPRACTICE CASE

Following discovery depositions:Following discovery depositions:• case dismissedcase dismissed• case settledcase settled• proceed to trial – cases generally proceed to trial – cases generally

stumble through the crowded legal stumble through the crowded legal system slowly, often for years. Take system slowly, often for years. Take advantage of this to continue working advantage of this to continue working on caseon case

EXPERT WITNESS IN NON-MEDICAL EXPERT WITNESS IN NON-MEDICAL MALPRACTICE CASESMALPRACTICE CASES

Most often injury or wrongful death Most often injury or wrongful death cases involving product liabilitycases involving product liability

asbestosasbestos pneumoconiosispneumoconiosis other, e.g. vinyl chloride, solvents, other other, e.g. vinyl chloride, solvents, other

toxins and carcinogenstoxins and carcinogens

EXPERT WITNESS IN PRODUCT LIABILITY EXPERT WITNESS IN PRODUCT LIABILITY CASESCASES

Expert witnesses will represent the injured Expert witnesses will represent the injured individual or the manufacturer and/or individual or the manufacturer and/or employeremployer

Be honest at all times. All reports should Be honest at all times. All reports should be considered as being given under oath, be considered as being given under oath, since one may be called to testify under since one may be called to testify under oath after issuing a reportoath after issuing a report

Do not serve as an expert if there is any Do not serve as an expert if there is any conflict of interestconflict of interest


The process is essentially the same The process is essentially the same as for medical malpractice casesas for medical malpractice cases

written reportwritten report sworn testimonysworn testimony

depositiondeposition trial/hearingtrial/hearing


These cases are more frequently decided at a These cases are more frequently decided at a hearing rather than jury trialhearing rather than jury trial

Discuss the case in detail with the attorney who Discuss the case in detail with the attorney who has retained youhas retained you• understand the specific issues in the caseunderstand the specific issues in the case• important that you are knowledgeable about the medicalimportant that you are knowledgeable about the medical condition/pathology and the productcondition/pathology and the product• cases are frequently decided based solely on reports; cases are frequently decided based solely on reports;

these must thus be detailed with supporting evidence, these must thus be detailed with supporting evidence, and specific aspects of the case must be addressedand specific aspects of the case must be addressed

Report must educate and convince judge or Report must educate and convince judge or panelpanel

No jury trialNo jury trial

THE PATHOLOGIST AS A WITNESS IN THE PATHOLOGIST AS A WITNESS IN MEDICOLEGAL CASESMEDICOLEGAL CASES

Remember that you represent either an injured Remember that you represent either an injured party or a potentially liable party – party or a potentially liable party – there is a lot there is a lot at stakeat stake

Your evidence and opinions most likely have Your evidence and opinions most likely have ramifications beyond just a single caseramifications beyond just a single case

You also You also represent yourself, your profession and represent yourself, your profession and your specialtyyour specialty

At all times maintain your professionalism and At all times maintain your professionalism and integrity and maintain the highest ethical integrity and maintain the highest ethical standardsstandards

A knowledgeable, honest, articulate expert will A knowledgeable, honest, articulate expert will be a busy expertbe a busy expert

the pathologist as a witness in medicolegal cases how to swim in shark- infested waters geoffrey...

Documents

hearing fact witnesses

evidence fact witnesses

hearing slide

medical malpractice

advantage slide

authoritative slide

certain facts

expert evidence