Trial Magazine

Medical experts’ opinions are often a source of great dispute in any case. And when we break down the opinion, we break down the expert. To accomplish this, proper deposition prep is key—first, master the medicine and the case facts, and learn how to interpret the medical decision-making process. You will then be ready to anticipate the expert’s responses and take them apart, one by one. 

The Medicine

Effectively evaluating medical experts’ opinions begins with learning the relevant area of medicine. You must ­understand anatomy, signs and symptoms of the ­conditions, signs and symptoms of other conditions within a differential diagnosis, tests and studies used to help diagnose or rule out conditions, algorithms of treatment, and normal outcomes or prognosis for the condition. Not understanding this information will limit even the initial discussions with your own experts. 

However, knowledge about the relevant area of medicine allows for healthy skepticism, in-depth follow-up questions, and the independent critical thinking necessary to properly frame the case. This is required to successfully attack the defense medical expert (DME)—if you don’t have the medicine mastered first, you won’t know what to look for when reviewing the medical records. So how do you master the medicine?

Start simple, and progress to the more complex. A preliminary Google search will give you a quick overview, and in many cases, some core research. If your client was injured or killed due to medical negligence during surgery, for example, here are some sources you can review to understand the procedure:

• An atlas on human anatomy. Focus on the different structures in the relevant surgical field such as organs, nerves, blood vessels, ducts, and their relationship to each other.
• Surgical textbooks that describe different techniques, anatomical landmarks, and potential complications. They usually contain still pictures of the stages of the procedures.
• Peer-reviewed periodicals that may contain articles on procedures, and organizational guidelines on the safest way to perform the surgery. These periodicals also are great places to learn where defenses may be lurking in your case. A simple example is published articles from the American College of Obstetricians and Gynecologists stating that shoulder dystocia is an “unpredictable and unpreventable obstetric emergency.”¹ These five words are the ­hallmark of the defense in such cases. ­Understanding favorable and ­unfavorable published positions is a key advantage when walking into the DME’s deposition.
• Videos of the actual procedure. Still photos and drawings do not give a sense of the surgeon’s viewpoint—nor do they depict the tedious dissection of connective tissue in many surgeries. Videos also help you understand the relationship between anatomical landmarks, which lets you accurately navigate the surgery while questioning the surgeon. 

TAKEAWAY: The deeper you dig, the more you know—and the less you can get fooled by the DME. 

Medical Decision-Making

Medical professionals quickly gather information based on a patient’s medical history, physical condition, and diagnostic testing. From there, they form a list of possibilities as to the potential diagnosis. This is called a “differential diagnosis.” It is a process of ruling out unlikely causes and coming up with the most probable. 

That is why being aware of only one potential diagnosis is insufficient. With more than a single possible diagnosis, you can bet the defense expert will focus on the one that is adverse to your case. For example, a child presenting with fever, lethargy, and decreased perfusion could be displaying symptoms consistent with gastroenteritis (inflammation of the intestines that causes diarrhea and vomiting) or bacteremia (bacteria in the blood). 

The defense will focus on the reasonableness of a diagnosis of gastroenteritis, when in fact the standard of care requires medical providers to investigate the possibility of bacteremia by performing a culture and treating the child with antibiotics. It would be reasonable to have both conditions as possibilities but not to ignore the ­life-threatening condition.

Different conditions can have similar symptoms, but there are certain patterns that are more consistent with one or the other. An elevated white blood count, for example, could be a response to either inflammation or infection. Similarly, many tests are not specific to one condition or another but can be used to rule out or support a diagnosis. MRIs, for example, are used to diagnose myriad conditions for the entire body, but they are also the gold standard for evaluating suspected epidural abscesses (infection between the brain and the spinal cord). That’s why it is important to know DMEs’ decision-making process when they treat real patients, as opposed to mere opinions in a case.

The Facts

Once you’ve mastered the medicine, you then have the facts to form the basis of an attack on the expert’s opinion. Learning a medical chart is more than having someone tell you what is important. I firmly believe that you should personally review the chart. It helps you better navigate the records and locate what is important. Organizational and navigational tools are also key in being able to quickly assess key points in the chart. Here are some ways to methodically review and organize the medical chart:

• Group the charts by hospital admission or provider with each receiving a tab, starting with “1.”
• Bates Stamp each page for easy reference.
• Put all important entries into a chronology.
• Create sub-chronologies under a particular title. For example, if you wanted to track a woman’s signs and symptoms of preeclampsia throughout her pregnancy, you would create a preeclampsia chronology with a column for blood pressure, a column for edema (swelling), and a column for protein in the urine. This allows you to ask the DME focused ­questions about the point at which these signs and symptoms required the obstetrician to take some action. Now you’ll be able to easily marshall the essential facts for each area of questioning during the deposition—and they can also be used later for trial. For example, if you’re attacking the opinion that a patient did not have signs and symptoms of an infection, your outline may look like this:

Anticipating Response Pathway

Every question you ask an expert has a fairly predictable response option. I call these potential “response pathways”:

Learn these pathways so you can anticipate whether to follow up, and how to follow up. In reality, many of the responses will be binary (yes/no), but many answers have multiple parts and need to be broken down so that each part can be forced into a “yes” or “no” answer. 

For example, in a case where I wanted to exclude sepsis as a cause of the baby’s injuries, I would ask a question such as, “Do you agree that this baby was not septic?” If the answer is “yes,” the witness has committed to a clean, unequivocal answer that supports our theory. But a “no” response means the witness will have to give a list of every reason and fact that supports that answer.

You can take two approaches to the subsequent line of questioning: Ask the witness to give his or her list of reasons and facts and explore each one, or ask questions based on the list you create. There is a slight advantage to the witness committing to a list of signs and symptoms on his or her own, but in many cases, the lawyer needs to remind the expert to complete the list. 

Sometimes, you can combine both approaches. For example, you might say: “Tell me all the signs and symptoms you would expect a baby of this age to exhibit when they are septic.” If any signs or symptoms are left out, remind the expert of them. And once they have been listed for the record, go through each one: 

Q: You agree this baby did not have a fever?

A: Yes.

Q: You agree this baby was not lethargic?

A: Yes.

Q: You agree this baby did not have an elevated white blood count?

A: Yes.

Does it matter that the expert’s opinion opposes the facts in the case? Obviously, this is a simplistic example because many experts would answer, “Yes, but a baby doesn’t have to have a fever to be septic.” And this is where having done medical research is helpful. You will know whether that answer is true—and if it is true, whether you can distinguish those exceptional cases from your client’s condition.

It is always a choice whether to go down this rabbit hole, but do not forget your starting point. Always know where you started—come back to the original question, and get the expert to answer it. 

TAKEAWAY: Score points in the rabbit hole, and come back and score points on the main question.

Offensive Strategies

Now that you’re armed with the medical knowledge and background, and you can anticipate the witness’s responses, it’s time to mount the attack. Use these strategies to break down the defense expert’s opinions.

Test the opinion’s strength. Depending on the state, every expert’s opinion has to be held to a ­reasonable degree of medical probability or certainty. However, just because an expert has certain opinions in a written report doesn’t mean they will withstand scrutiny. If you ask the expert if the opinion is held to a ­reasonable degree of medical probability, sometimes the answer will be “no.” In a recent case, this was the first question I asked the expert on a major causation issue—the answer essentially gutted the credibility of the defense theory.

If the expert says he or she cannot state that opinion with 100 percent certainty, explore why not. When experts use “more likely than not,” I know they are close to the 51 percent line (the threshold for probability). I explore what’s on the other side of that line, and it’s usually the plaintiff’s theory of the case.

For example, an expert who states that a patient’s chest pain was probably muscle pain will, in most cases, agree at a minimum that it possibly was cardiac in nature. And many times, the expert will agree that cardiac pain cannot be ruled out. This then leads me back to the differential diagnosis questions and the tests that the defendant did not order that could have ruled in—or ruled out— an impending heart attack.

Reality versus courtroom opinion. In many cases, an expert will opine that he or she doesn’t believe in a diagnosis or that the defendant complied with the standard of care. Yet when questioned about diagnosing and treating their own patients, it’s apparent that there is a disconnect between their stated opinion and the way they practice with their actual patients. Usually, the way the experts conduct themselves in their practice is consistent with the standard of care and the medical literature on how to diagnose and treat patients.

Isolating the expert. An expert’s opinion may be extreme enough that it differs from the other defense experts or established medical literature on the subject. More important, the opinion may starkly contrast with the facts of the case, including the lay witnesses’ firsthand­ knowledge. So your goal when questioning this type of expert is to use the polarization technique and lock the expert into opinions that are clearly different from the other opinions or positions on the case.²

For example, there is a national expert who opines that excessive traction by the delivering obstetrician does not cause brachial plexus injuries. Here are some questions you would ask this particular expert:

• “Doctor, you do not believe that excessive downward traction on the baby’s head by the delivering obstetrician causes brachial plexus injuries, correct?”
• “You know that obstetricians are taught to never use excessive ­downward traction because it can cause a brachial plexus injury, correct?”
• “You have read the depositions of the other obstetricians identified by the defendant in this case that excessive traction causes brachial plexus injuries, correct?”
• “There is no published literature that states that excessive traction does not cause brachial plexus injures, correct?”
• “Even the defendant has testified that excessive traction causes brachial plexus injuries, true?”

Absolutes. If an expert gives an emphatic response to a question, a good follow-up is “so you always” or “you never.” In many cases, the expert will back off an absolute. Once he or she backs off, the next follow-up question is to ask the expert to quantify between when something occurs and when it doesn’t.

In a recent deposition I took, the defense expert tried to make the case that an air embolism, which can act as a blood clot and cause cardiac arrest, did not come from an IV line—which would be a standard of care violation—but from the surgical site, which is less likely but not a standard of care violation. My questioning went as follows:

Q: In the literature, does it say that there is air entrainment in every prone position surgery?

A: I don’t think it’s known.

Q: OK. Does it say that there is air entrainment in 50 percent of surgeries that are in the prone position?

A: . . . the fact is that if you don’t look for it, you don’t know.

Q: OK. In what percentage of cases is air entrainment from the surgical site detected?

A: I don’t know the answer, but it’s a rather small number.

Often, they have no answer to that, or the relative percentages of occurrences and non-occurrences undermine the strength of the opinion. 

A doctor’s job versus the standard of care. Juries think in the context of jobs, not the standard of care. Keep that in mind when deposing the expert. Experts who opine that a defendant complied with the standard of care may give a different answer when asked, “Wasn’t it the doctor’s job to look at the EKG, for example?” 

In some ways, this is one of the more powerful inquiries. This leaves the jurors questioning whose job it was to review the EKG. The expert has to answer that question. He or she could say it was the doctor’s job, but that it wasn’t required under the standard of care. The expert could say it was nobody’s job. Or the expert could point fingers at another health care provider. Regardless, you’ve laid the groundwork to call the opinion into question, and the expert does not come off well.

Successfully dismantling a DME’s opinion requires research, planning, and a good deal of strategy. But if you follow these steps, you’re well on your way to sinking the expert opinion and weakening the defendant’s case.

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Charles J. Zauzig III is the president of Nichols Zauzig Sandler in Woodbridge, Va. He can be reached at czauzig@nzslaw.com.

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Notes

1. Am. College of Obstetricians and Gynecologists, Practice Bulletin No. 178: Shoulder Dystocia, 129 Obstetrics & Gynecology 123 (2017).
2. See Rick Friedman, Polarizing the Case: Exposing and Defeating the Malingering Myth, (Trial Guides 2d ed. 2007).