With some exception, malpractice cases require the expert’s participation in certain anticipated and defined ways. The role of the expert is dictated by the court in which the case is litigated, and although there will be some variation from state to state, you can expect a fairly uniform experience no matter where the lawsuit is filed.
The defense expert’s initial contact with a case typically occurs as a result of a telephone call from the attorney representing a defendant in an already existing suit. A plaintiff’s attorney often must certify having consulted with an expert or must obtain an affidavit signed by an expert in the defendant’s specialty who is familiar with the applicable standard of care indicating that, based on the records, the named defendant committed malpractice. This Affidavit or Certificate of Merit, as it may be called, is prepared by the plaintiff’s lawyer and contains the language required by law. Without it, the court will dismiss the case. Because of this, a plaintiff’s attorney will typically retain an expert before a suit is instituted. Defense counsel likely will not need the services of an expert until the case is under way and often not until after party depositions have been completed.
During that first telephone conversation, the defense lawyer will generally outline the facts, reveal the names of the parties, identify the location of the suit, and indicate the intended purpose of retaining you. Understand that successful prosecution of a malpractice action by a plaintiff requires that liability, causation, and damages be established. Generally speaking, a plaintiff must prove liability— ie, that a practitioner deviated from the standard of care— and causation— ie, that the alleged deviation caused injury. Finally, a plaintiff must establish damages— ie, the nature and extent of the injury caused by the malpractice. Your role might be to offer defense opinions about the issues of liability, causation, damages, or some combination of these components. Consequently, time should be devoted to discussing the issues you are comfortable addressing given your practice area.
If you are interested in participating, your fee structure should be discussed; assuming that the attorney retains your services, records thereafter will be supplied to you for review. Before agreeing to take the case, you should inquire as to the date by which you must complete your review of the materials. If counsel needs an expeditious assessment, you must know this up front.
The stage of the litigation will dictate the documents you will be forwarded for assessment. If the matter is in its infancy, it is likely that you will only receive a copy of the Complaint and copies of the treatment records (possibly including radiographs of various types) concerning the care under scrutiny and treatment after the alleged malpractice. If the lawsuit has been pending for some time (which is more typical), you may receive copies of additional “discovery” material. Discovery documents commonly include copies of the various parties’ written answers to interrogatories (written questions), deposition transcripts, and miscellaneous documents in the possession of the parties’ attorneys. In courts where service of expert reports is required, you likely will receive a copy of a report or reports generated by the plaintiff’s expert(s).
Some attorneys consider it appropriate to transmit materials with a summary or outline of the relevant facts to facilitate the expert’s review. However, many trial lawyers believe that written summaries are unnecessary. To the extent that you require a summary of the relevant events, ask for it verbally when the attorney first calls you. Remember that your analysis of the case must be based on the untainted facts revealed by a review of the treatment records, interrogatory answers, deposition transcripts, and the documents exchanged by counsel. If you rely to any extent upon lawyer-generated chronologies in the formation of your opinions, your conclusions will be suspect. In some courts, such written summaries contained in the expert’s file may be properly requested by adverse counsel at an expert’s deposition or during the expert’s trial testimony. If the facts are even slightly skewed to favor the defendant on whose behalf you are conducting your review, the adverse attorney will discover the tainted summary and reveal it as such to the jury through cross-examination. As a result, the independence of your assessment will be questioned.