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Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Review by medical expert.
After procurement of as many medical reports as possible, and photostatic copies of physicians' office records and the patient's hospital charts, you should have a competent physician review the material to ascertain whether there has actually been negligence or a violation of applicable standards of medical or hospital practice, and whether there is a causal relationship between such negligence and the client's injury.
Because of the discovery rules that appertain in most states, it is advisable to meet personally with your reviewing expert rather than have him prepare a report at this stage of the case. You should dictate his opinion into memorandum form, which in most instances will then be considered your work product and thus immune from direct discovery by your opponent.
Obviously, the question arises as to how one finds a good medical reviewer. This, of course, is not always an easy task. It may be possible to procure a physician from friends and associates; occasionally you will find one who at least is willing to review your file and briefly advise you. Probably such a reviewer will want to remain anonymous, and it is doubtful if he will be willing to give testimony for you in any form. Another possible source is the faculty of a medical school. Although preferable, your reviewer need not be a specialist in the field involved; if he has a good basic medical education, he should be able to review your pertinent material, conduct necessary research, check with specialist friends, and give you an adequate, objective opinion.
Another method an attorney might employ to find a medical expert is to call or write the author or editor of a leading treatise on the subject matter involved. Our office is presently representing a 43-year-old lady who underwent a posterior lumbar interbody fusion (PLIF). The surgeon used an oversized bone plug and the lady became paralyzed (see Section 8.6, this volume). When we were taking the deposition of one of the defense's experts, he referred to a brand new book on the PLIF procedure. Our office got in touch with the editor of the book, who agreed to look over our client's medical records. The editor believes that our client's case involves gross negligence and he said he will so testify. Inasmuch as the defense expert has stated in his deposition that this new book is the "Bible" on this type of surgery, we anticipate that our editor will be a devastating expert at trial.
If an attorney is presented with a potential major medical malpractice case, and he is unable to procure a medical reviewer, it may be best to seek out an attorney who specializes in malpractice litigation and refer the matter. It is very risky for any attorney to proceed to trial with significant malpractice litigation without available competent medical consultation on a continual basis. This does not mean that it cannot be done, however. Some plaintiff's lawyers have been able to prosecute successfully a malpractice case, even through trial and appeal, primarily on the strength of their own medical research. And, of course, many have achieved very attractive settlements without the help of medical consultation. But these are the exceptions rather than the rule.
Even where help is promised by a medical adviser, the malpractice plaintiff's attorney, in many cases, will find that he must conduct much medical research on his own. Thus, where full professional assistance is not available, or where circumstances are such that he or his client cannot undertake the necessary cost of a thorough evaluation by an expert, the plaintiff's attorney must be prepared to rely on what he can find in the medical and medicolegal literature. However, if the case goes to trial, success almost always depends upon the testimony of an expert witness.
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