The Expert Opinion
Critical to the prosecution or defense of almost every malpractice case is the liability expert opinion. Without it, a plaintiff generally will be unable to pursue or at least sustain a malpractice action, and a defendant will be unable to defend one. However, there are occasions, although few, when an expert opinion is unnecessary. For example, under the doctrine of res ipsa loquitur, which means literally “the thing speaks for itself,” a jury may reasonably conclude that an alleged injury would not have occurred without the defendant’s negligence. This doctrine rarely applies in malpractice matters because the expert opinion is almost always needed to intelligently interpret the propriety of what occurred.
Another exception to the liability expert opinion requirement exists where the “common knowledge” doctrine applies. Here the law recognizes that there may be situations where lay individuals, based on their everyday experience, can determine if there has been a departure from the applicable standard of care. Application of this doctrine requires professional conduct so clearly wanting that it is obvious to a layperson. For example, if root canal therapy is recommended for a patient and a less-than-optimal result occurs, a malpractice suit may result. If the treatment was neither ill conceived nor improperly performed, there is no basis for a malpractice action, unless, of course, the therapy was performed on the wrong tooth. In one such case filed against a general dentist, the plaintiff did not retain an expert to address the issue of negligence. It was conceded that the problem tooth was adjacent to the one that was opened. By treating the wrong tooth, the defendant practitioner clearly had deviated from the standard of care. Identification of the wrong tooth by numerical reference clearly should not have occurred, and all conceded that the tooth that received the root canal therapy was not the intended one. The jury did not need, and the law did not require, the assistance of expert testimony to so find.
As mentioned, retention of a defense expert commonly begins with a telephone call to a practitioner placed by defense counsel, who will recite the facts and allegations and then inquire as to whether the practitioner has an interest in participating in the case. With an affirmative response from the expert, the defense attorney will then ask: “Did the defendant depart from the applicable standard of care and cause injury?” Based on the facts described during the telephone call, the expert may or may not be able to express a liability opinion. Often a preliminary oral response to this question is possible with the caveat that a review of relevant records may prompt a different reply. Even without a firm substantive response, an expression of support for the defendant practitioner will usually result in retention of the expert for the purpose of reviewing the written materials and formulating a liability opinion.
An expert may be retained to address the issues of causation or damages rather than liability. If the issue of concern is causation, the pivotal question asked of a potential expert may be: “Did the defendant’s conduct, whether appropriate or not, cause damage to the patient?” If the damage claim is the focus, the lawyer may ask: “Can you identify, characterize, or quantify the patient’s injuries?” Again, without having scrutinized the relevant records, the expert may offer only a preliminary opinion. If it is encouraging, counsel may retain the expert and forward the appropriate documents for review.
As the litigation develops, the need for verbal input will be ongoing. Notwithstanding the preparation of a written report where required, documents will be periodically supplied to you for consideration. Such review may ultimately result in the preparation of a supplemental report.
Typically, the liability expert report is critical. To the extent that it embodies opinions crucial to the litigation, its importance cannot be underestimated. Although the report will reflect the individual writing style of its author, it should always contain certain information organized in a recognizable format. Some liability expert reports are better than others. It is up to you to create a report that effectively delivers your thoughts. Always keep in mind that your readers are lay people, not highly trained colleagues. Given the subject matter usually addressed, the report will necessarily contain highly technical concepts and terms. The key, however, is to craft the report so that the untrained reader will understand your opinions and the basis for them. Without question, the more experience you gain preparing expert reports, the better you will be at drafting them.
The stage of the litigation will dictate the general report type. An initial defense liability report will customarily be the most encompassing of all reports. It will embody the expert’s analysis of the key documents and will likely contain opinions crucial to the defense. Reports thereafter prepared by the same expert are usually supplemental and less comprehensive. They typically do not review the facts (already recited in the initial report) and normally are confined to an assessment of additional documents obtained by the retaining attorney during pretrial discovery or an analysis of additional issues raised by those documents or statements made by parties or witnesses at deposition. Consequently, the format of such supplemental reports will be governed by their purpose. They are usually shorter than the initial report, and although their preparation may benefit from reliance on the format discussed below, addendum reports need not strictly comply with such an outline. In fact, at times the supplemental liability report may simply identify the additional documents reviewed and contain a statement that they do not alter previously expressed opinions.
The length of the initial liability report and each of its sections will be dictated by the nature of the case. If the matter is factually complex or encompasses complicated treatment issues, it is reasonable to expect that the report will be long. As a general rule, a comprehensive initial expert report seldom is less than two single-spaced, typewritten, letter-size pages. Even the simplest of matters usually necessitates a longer and more detailed report.
Although headings need not be used in the report, at a minimum there are certain recognizable components of a properly prepared initial expert report:
• Documents reviewed
• Foundation for opinions
• Ultimate conclusion
Let’s analyze each.
The report, in the form of a letter addressed to the retaining attorney, should initially acknowledge receipt of the documents supplied by identifying them. Although some experts (experienced and inexperienced alike) may recite only a partial list or state that various documents have been furnished for review, it is preferable that each item be listed. If the materials reviewed were supplied by counsel at various points in time (and even if they were not), a report listing all documents furnished will be of help if and when that expert is deposed and asked to identify the materials reviewed in the formulation of his or her opinions as contained in the initial report. It also will be of immense benefit at trial, when a similar question is posed. If you do not know or cannot easily and quickly provide the answer, it will suggest that you are neither thorough nor in command of the materials. Although the expert can always refer back to retaining counsel’s transmittal letters, testimony regarding this subject then becomes disjointed. Avoid this simply by itemizing the documents in the report.