Tips from an Expert Medical Examiner

WDC Journal Edition: Spring 2008
By: Dr. Craig Johnson - Northland Neurology, S.C.

When my friend Kevin Ferguson asked me to write and article on the care and feeding of the expert medical witness, I jumped at the chance. After all, how often does one have the opportunity to speak directly to the people who matter?

Not very, and the thought of having some influence, however small, on the system or those in it is just too appealing to pass up.

First, a few caveats, the most important of which is that the opinions and beliefs expressed herein are mine, and mine alone. I hope they are applicable to the broad spectrum, but they may not always be. And please remember, all opinions expressed herein are made to a reasonable degree of medical certainty, and are subject to change if new information is submitted for review.


Why I Do It

This is a question that seems to come up a lot, even in court. It’s easy for me to answer.

The best reason is that it isn’t what I do day in and day out in my clinic.

Normally, a neurologist sits in a 10-by-10 white room and listens to people who are often angry, in pain and frightened. On a good day, he may be able to do some work in the EMG lab or read an EEG or two.

Now, it is what we do. And I signed up for the duration, but after about 10 years, I started to look back on my college janitorial job with a disturbing level of fondness.

The point is, a change in scenery and routine can sometimes be appealing.

Another important incentive is that much like teaching, serving as a medical expert keeps us sharp. Even in my work as a neurologist, the daily clinic routine can engender a dangerous sense of repetition. This has the potential to be deadly (literally).

The effective expert must check and re-check. Learn and re-learn. This is the natural antidote to boredom and the carelessness that can follow.

Finally, an Anecdote:
A few years back, an orthopedic surgeon sidled up to me in a buffet line at a medical meeting, leaned in and said, “if you sleep with dogs, you’re bound to get fleas.”

“I have cats,” I said, trying to sidestep what I knew was coming. I failed.

“I know what you do, and it’s no good for anyone except the lawyers,” he said.

“Somebody has to take care of them,” I replied. “Besides, a lawyer put me through medical school.”

He gave up.

Now, I could say this surgeon is a bad doctor or even a bad person, but he may be neither. What I can say is if world history has taught us anything, participation in any system is preferable to isolation. In essence, we can’t expect improvement without input from all sides.


How To Hire

The call usually comes from a paralegal or secretary, and this is fine. But at some point early on, it is important to speak personally to your expert. This will give the expert a chance to ask questions and get a feeling for tone and priorities.


The Records, et cetera

Whenever possible, send all the records at one time, including actual films (not just reports). When records come in at a slow trickle, evaluation, management and report production can become very difficult.

Also, send actual films (not just reports) whenever possible and insist they be looked at. Remember: surprise bad, study and review good.

Most important, at least to me, is that the pages arrived numbered. This may seem trivial, but it will save time, aggravation and money. I like to refer to page numbers in the body of my reports. It makes depositions and trials run much smoother for both plaintiff and defense. It also often obviates the need for separate cataloging of references.
Though it may seem I’m stating the obvious, make a point to promptly return phone calls and make an effort to know your expert. A first-time expert or someone new to you may not know a Bates stamp from a post-it. He may not even know what to wear. Take nothing for granted.


The IME

The IME has many facets: the form, the tone, the length and the content. Not once has an attorney tried to tell me what to say, but it is nice to have an idea of form and content going in.

Also, please do your best to reinforce punctuality. As IME work is a very small percentage of my work time, IMEs are, for the most part, scheduled during regular clinic hours. A late IME is no different than a late patient, perhaps worse, since we generally schedule them for 90 minutes.


The Deposition

From my perspective, there’s not much to say about the deposition, other than make sure both you and your expert are prepared and on-time.

From my end, the only consistently disturbing variable is the appearance of a junior lawyer pinch-hitting for a senior partner.

It can be unnerving to appear for the inquisition and unexpectedly meet someone you’d swear carried your golf bag on the previous Saturday morning, especially if you’re not a good tipper.

It’s truly disturbing, however, if that young and earnest face is not attached to a head full of at least some of the facts of your case. Don’t laugh. This has happened to me so often I’ve come to expect it.

True, it probably isn’t essential to have Clarence Darrow sitting next to you in an evidence deposition, but it does tend to establish a degree of confidence and rapport. So if you plan to send a junior associate to handle a deposition, at least let your witness know. It’ll let him know you’re thinking of him.


Trial Preparation

In the period immediately preceding the trial, questions will always surface. There may be a mistaken detail in the IME or some question your witness needs answered. Please, please, please answer the phone, return calls and keep the use of surrogates to a minimum. As you know, information filtered through others can be lost in translation.

Many lawyers like to schedule pre-trial prep meetings. I find these meetings, however brief, to be invaluable. They help set the tone for trial and provide a basis for a surprise-free trial experience. Remember: surprise bad.


The Trial

Trial day is the fun day. At least that’s what I like to say to myself on the way to court. After all, I’m not the guy on trial, and I like to think I’m an educator, helping all concerned see the facts as they are and understand the science.

As a witness, all I ask is the opportunity to answer any unanswered questions through re-direct. As long as everyone is prepared and I have the opportunity to make my points, all will be well.

Trial day is also the time every expert thanks God he isn’t a lawyer. As my father, a pretty fair LaSalle Street trial lawyer used to say, “trial law is like a life term of finals 10 times a year.”

Frankly, I don’t know how you do it. Plaintiff or defense, it’s like a lifetime of final exams every few weeks.


Post Trial

Every expert I’ve known appreciates feedback. It’s nice to hear feedback from every available source, especially the jury. Even if your expert doesn’t ask, make sure he knows what you and, if possible, the jury thought of your presentation.

After, that, you may want to help translate. I recall one juror didn’t like the way I twirled my glasses and tapped a pen while talking, (too comfortable, too confident)
Another loved the way I avoided complicated medical terminology (plain talk).


A Word About M-O-N-E-Y

Regarding fees, it is essential to set the ground rules and discuss the subject of reimbursement in a straightforward manner. This will help avoid misunderstandings that can undermine any relationship.

Personally, my experiences with Wisconsin lawyers have been almost universally positive. Not so with your Illinois brethren, but that’s another story.

The one Wisconsin exception was a lawyer who tried to re-negotiate a fee in the name of his “upset client.” What he didn’t know was that I knew the client, and he was definitely not “upset” with my fee.

Essentially, the local lawyer was probably attempting to improve his standing with the payor by driving down my fee. In my view, this is no crime, but using the parent company’s name without permission in order to justify a lie is at least unethical.
The best rule of thumb is to employ simple common sense. Be honest, be fair and be above board.

In respect to actual fees, most successful specialists can make much more money in clinic than in court. For me, one IME page represents 30-40 minutes of record review and writing. Since most of my IMEs are 15-20 pages, sometimes as long as 40, I can’t possibly bill for all the time I put in. As a result, I often end up capping charges at a pre-determined maximum.

I think almost every specialist will agree on this point. Those who don’t may have underperforming practices or are cranking out IMEs like Usinger’s cranks out brats, usually at the expense of credibility.


For You Judges Out There

It may seem odd, but to me, the most important person in the room seems to me to be the most benign.

I have heard tell of judges who fall asleep, yawn, or participate as if they were a third lawyer in the room. I simply haven’t seen any of it.

The one judicially inspired negative experience I can recall was simply from a local judge who was habitually late…very late. Sometimes almost an hour late.

When he did appear, his hair was shower-soaked, his collar buttons undone and his general demeanor somnolent.

The odd part of it all was that he was not a substance abuser and was, in fact, otherwise a very good judge. He was smart, and by all accounts, a very nice fellow. He was just chronically late for everything.

The problem was that while I was sitting there, some poor plaintiff was paying me for my time. I felt like sending part of the tab to the county.

Interestingly, the next election straightened things out. The judge was re-elected, but his margin was about 14 votes. I later heard the tardiness issue was a much bigger problem than I had suspected, and a whispering campaign had almost unseated the incumbent.

It was probably no coincidence that our tardy jurist began showing up on-time.


Final Thoughts

For the physician expert, there are many reasons to participate in the system. It keeps us sharp, it can be fun and it allows us get out of our little ivory towers.

Most importantly, participation in our legal system allows physicians to gain insight into not only the system, but themselves.
For their part, attorneys can help by giving physicians fewer reasons to withdraw, fewer justifications for paranoia. Honesty and fairness are a good foundation for any relationship. Perhaps in our case, more formal inter-professional contacts can be established, as well.

It may also be helpful to understand why many physicians choose not to participate in the legal system.

Some, like my orthopedic friend, labor under unfortunate misapprehensions. Others may not feel comfortable with the language. Some feel they don’t have the time or can’t afford the time out of the office.

For our part, we physicians must try to reverse the tide. Read more. Write more. Do more outside the increasingly narrow definition of a medical practice.

The system we have is not perfect, but it works. If we participate with the idea of making a positive impact on a system in need of our support, nothing but good can come of it.