Trial Magazine

In medical negligence cases, one of the biggest obstacles is proving that the defendants violated the standard of care. Jury instructions can be confusing—jurors may be asked to decide whether a doctor adhered to the standard of care for a reasonable doctor in the same specialty in the same or similar community at the time these events occurred. Your job is to make sure jurors understand what the standard of care is, how it was violated, who violated it, and how these violations caused your client harm.

Part of this teaching is done through your experts. Ensure your standard of care expert witnesses have the requisite credentials and knowledge and can also withstand cross-examination. But jurors need more than just your expert telling them what the standard of care is—they need independent sources to confirm that testimony. You may find support for your expert’s testimony in medical literature, in the defendants’ policies and procedures, and on the defendants’ websites and in their marketing materials. However, the most compelling way to show what the standard of care is and that the defendant violated it is through the testimony of the defense witnesses.

In a recent case, we located medical literature that supported our theory of what the standard of care required. The defense had located contradictory medical literature and hired several authors as their experts. Ahead of a three-week trial, our trial team deposed one final defense witness who we had strategically scheduled last. This final defense witness’s testimony confirmed the standard of care that our experts proffered and contradicted the testimony of the defense’s other fact and expert witnesses. We alleged that the defendants failed to provide timely medications and bring our client, who had a subarachnoid hemorrhage, to the operating suite until days later—when it was too late—even though her condition had worsened and the ­transcranial Doppler readings demonstrated high blood flow velocities. (The levels and timing are indicators of vasospasm, which is a narrowing of blood vessels in the brain reducing proper blood flow, that can lead to tissue death.)

One central issue in the case was the defense’s position that a patient should be brought to surgery only when the patient had a focal neurological deficit. We used “focal neurological deficit” in our questioning, and the witness finally testified, “You keep saying focal deficit, but if there is any deficit, you bring the patient to surgery.” And the witness further admitted that is what was required at this hospital during the relevant time frame.

With five answers, this witness unraveled the entire defense case. It wasn’t luck. It started with obtaining concessions from earlier fact witnesses and defense experts and laying the groundwork. Here’s how you can apply the same method to your cases.

Work With Your Expert

To determine the relevant standard of care and prove the defendant violated it, start with your own standard of care expert. For example, if your expert is a neurosurgeon, ask about your expert’s hospital’s relevant policies and procedures and for any support of these policies and procedures in literature or other independent sources. Many times, the citations in the policies will lead you to helpful medical articles. If the defendant hospital in your case has a policy on a relevant issue, it likely will cite similar articles to your expert’s hospital’s policy.

Become familiar with these articles in advance, and tailor your questions. Ask your expert hard questions you know the defense will ask, and be sure the expert’s answers make sense. The defense will focus on the weakest points in your case. Ask your expert those questions almost in a ­cross-examination fashion: “Doctor, do you agree the literature states . . .” and “If the literature says x, how can you say y?” See if the responses are independently supportable and that they make sense.

Use what you learn from your expert to craft your discovery demands regarding the defense’s policies and procedures. For example, in the ­neurosurgery case described above, we used what we learned from our expert to craft discovery requests on specific policies regarding focal and nonfocal neurological deficits, subarachnoid hemorrhages, and stroke center guidelines.

Review the Literature

Do your own research. Have you found additional support, or equally important, any literature that is contrary to the position your expert is taking? Many experts are published, so review their publications. No expert can credibly suggest his or her own writing and research are unreliable. When taking expert depositions, remember to ask defense experts if they agree or disagree with the other defense experts’ publications.

When reviewing the publications, do not feel constrained by the exact topic at issue in your case. While it is particularly helpful to have ­expert-written articles that are exactly on point, this is not necessary to establish a general standard of care. An emergency room (ER) physician expert may never have written an article on the proper diagnosis of appendicitis, but if the doctor considers herself an expert in the treatment of kidney infections and has written extensively on them, that literature may unintentionally give you a standard of care for your case when it states that the physician must consider the situation as an emergency and describes the steps to be taken to protect the patient.

Review Defendants’ Websites, Marketing, and Policies

These can be a gold mine of information that shows how the defendants hold themselves out to the public. Obtain this information through discovery and through your own research. For example, policies and procedures can be obtained through Federal Rule of Civil Procedure 30(b)(6) corporate depositions, and hospitals sometimes publish guidelines on their websites (use the “wayback machine” to find older versions). You may even find medical literature citations on a defendant’s website—try contacting the authors to serve as an expert on the case. How can defendants credibly attack the author of articles that their website indicates are authoritative?

Do not forget to look at a defendant’s advertising and marketing materials. A recent malpractice case involved a failure to timely diagnose bacterial meningitis in an infant. The length of the delay was a central issue in the case. On our way to a deposition, we saw the hospital’s enormous ­­billboard advertisement in which it marketed itself as the premier hospital in that area and said to go to this hospital “when every minute counts.” We took a picture of the billboard and used it to help establish the standard of care.

Identify Industry Standards

Most experts rely on certain industry standards, whether from textbooks, statutes, or elsewhere. Part of your job at the deposition is to identify the defense expert’s familiarity with the applicable standards, whether he or she agrees with those standards, and whether the expert intends to use other standards at trial. Don’t be afraid to get specific. Identify specific code sections for each standard or specific quotes within a textbook. Don’t “broad brush” the standards with general questions; use the exact language in your questions.

In our neurosurgery case, experts on both sides relied on articles to demonstrate what was required in specific circumstances. We framed our ­questions to the main defendant neurosurgeon using quotes from his publications to see if he agreed with them, since they were contrary to the position he was taking in this case. He disagreed with many of the statements, which further strengthened our case.

In another case, an epidemiologist examined relevant medical literature and found articles and standards that showed that the defendant surgeon’s actions were not justified and in fact contrary to established medical literature. The epidemiologist’s testimony showed that the actions of the defendant surgeon were unsupportable in the medical community and bordered on unethical behavior. When our expert was deposed, he presented every article he had reviewed, and it was hard for the defense to get around this testimony.

Identify Professional Organization Standards

Some medical professional organizations establish standards of care for their fields and frequently make those standards publicly available.¹ Review those standards in preparation for your expert deposition and then make sure to question the defense experts on them.

First ask the defense expert if he or she is a member of the organization and if the organization is reputable. Ask if the expert has attended seminars run by the organization and receives its publications. Lay the groundwork that the organization, in some ways, sets the standard of care. Then go straight to questions using language from the organization’s relevant publications. Once you have established the organization as reputable, the expert will have a difficult time credibly stating its standards are not to be trusted and followed. Assume your case involves an improperly performed gallbladder surgery resulting in injury to your client. The Society of American Gastrointestinal and Endoscopic Surgeons has a “safe cholecystectomy program” with published guidelines.²

Many professional organizations have published standards that members are expected to abide by when providing expert witness testimony.³ Use these standards to develop your ­cross-examination questions. For example, if an organization’s standards require that witnesses, when providing testimony, need to consider all relevant medical records, and the defense expert was provided only with an abstract, that goes to the expert’s credibility.

Questioning Defense Experts

Prepare for these depositions as if you are examining the experts at trial. You have put in the necessary work and obtained the fact witness concessions. Now see how the defense experts dispute that supportive testimony.

---

If the expert is purposely ignoring medical records so his or her opinion makes sense, make sure you lock the expert in as to those facts.

---

‘The death is in the details.’ By the time you depose a defense expert you should know, factually, everything there is to know about the case. An expert, conversely, may have reviewed the case initially when formulating opinions and then set the matter aside until a few days before the deposition and rarely will know the facts as well as you. Use this to your advantage.

If an expert takes you down the wrong road of medical documentation, this is the time to catch it, not at trial. If the expert is purposely ignoring medical records so his or her opinion makes sense, make sure you lock the expert in as to those facts. Specifically ask whether his or her opinion would change under a set of hypothetical additional facts. Unless you completely understand your facts, you cannot combat this narrative and lock in that expert to the appropriate standard of care.

Understand the area of expertise like a juror, not like an expert. To properly question a medical expert, you need to understand the medicine and subject matter well enough to recognize when an expert is misleading you. But ­understanding the medicine does not require you to obtain a medical degree—don’t try to impress the doctor with your “expert” knowledge. Also always be mindful that you will present your case to jurors, not to a panel of medical experts. Explain the standard of care in terms they will understand. Keep this in mind as you phrase your questions. In the neurosurgical case we described earlier, when it is known that a subarachnoid hemorrhage patient needs to be brought emergently to surgery when vasospasms reach certain levels, you can simply ask the expert: “Do you agree that the literature states that if the transcranial Doppler findings are over 200, then a patient must be brought to surgery?” A jury will understand that. You do not need to get into all of the finer medical details that could confuse a jury.

We like to hold strategy group sessions with a nonlawyer in the room to ensure jurors can understand our arguments. In a case involving failure to diagnose bacterial meningitis, parents brought their baby to the emergency room, and the doctors administered intravenous (IV) fluids. After the baby “perked up,” and despite concerning elevated white blood cell counts that tell reasonable health care providers that the baby could have an infection, the hospital sent the baby home and told the parents to see their pediatrician in the morning. Fourteen hours later the baby was much worse and subsequently diagnosed as permanently brain damaged.

We alleged that the hospital failed to meet the standard of care, which required IV antibiotics. Had the doctors provided that, the baby would have been fine. In our strategy session, the ­nonlawyer asked why “they couldn’t just hook the antibiotics to the IV already running for the fluids?” For a lay person, that was really important, and we believed it was one of the things that jurors could not get past. We could have dug deep into IV antibiotics, what organisms are treated, and how they work. But the nonlawyer in our strategy group helped us see what every lay juror understood perfectly at trial: If the baby was already at the hospital and had an IV in place, it was easy to administer antibiotics.

Build up the industry standards through the defense experts. All defense experts will concede certain industry standards and principles. These provide building blocks for any standard of care opinion and any case theory, and it is your job to obtain them during the depositions. To do so, use the case facts established by your fact witness testimony. Then push the expert to identify the standard of care through broad principles rather than through facts specific to your case. Apply the facts to your specific case only after you have established the broad principles.

For example, if your case involves a failure to diagnose appendicitis, your line of questioning may look as follows:

• Do you agree with Dr. Smith [defendant doctor] that appendicitis, if left untreated, can be deadly?
• Do you agree with Dr. Smith that if treated promptly, appendicitis is a relatively benign medical issue? 
• As an ER physician, part of what you do is reach a differential diagnosis? 
• And you reach a differential to rule in and rule out certain disease processes? 
• As Dr. Smith testified, do you agree a proper differential diagnosis lists threats to the patient from most serious to least serious?
• And you want to rule out the most serious threats first? 
• You order tests to rule in or rule out certain disease processes? 
• Can we agree the patient had right low abdominal pain upon presentation? 
• Can we agree Dr. Smith testified he knew the patient had rebound tenderness? 
• Can we agree the patient had a fever upon presentation? 
• Can we agree these symptoms, taken collectively, can suggest appendicitis? 
• The way to definitively diagnose appendicitis is a sonogram? 
• And a sonogram was not ordered here?

By asking questions that won’t be disputed, you can establish how medicine is supposed to be practiced. While you may not be able to obtain something this clean in every case, don’t overlook these simple, indisputable issues in establishing the standard of care.

When you are able to use a defense witness to establish or confirm the standard of care, jurors will pay attention. It provides immediate credibility to your experts who can testify as to the standard of care and also tell the jury that the defense expert agrees. While obtaining these concessions can be a lot of work, their importance cannot be overstated.

---

Christian C. Mester and Michael J. Winkelman are partners at McCarthy, Winkelman & Mester in Lanham, Md. They can be reached at cmester@mwmlawyers.com and mwinkelman@mwmlawyers.com.

---

Notes

1. For example, see Soc’y of Am. Gastrointestinal and Endoscopic Surgeons, Guidelines, Statements, and Standards of Practice, https://www.sages.org/publications/guidelines/.
2. Soc’y of Am. Gastrointestinal and Endoscopic Surgeons, The SAGES Safe Cholecystectomy Program, https://www.sages.org/safe-cholecystectomy-program/.
3. For example, see Am. Acad. of Orthopaedic Surgeons, Standards of Professionalism: Orthopaedic Expert Opinion and Testimony (May 12, 2010), https://www.aaos.org/member/profcomp/ewtestimony_May_2010.pdf.