Medical malpractice cases should focus on the facts, not the experts (Part 3)

One area of pre-trial discovery that can create factual disputes which will negate the defense experts involves hospital policies and procedures. Any expert who reviews the medical records and forms opinions based on those records may be forced to contort the standard of care defense if the care was in violation of hospital policies.

When an expert testifies that the care may have violated a specific hospital policy but still be within the standard of care, the jury will usually disregard that expert's opinion.

When the case progresses to expert depositions, the plaintiff 's attorney needs to prepare a detailed factual summary to present as hypothetical questions to the defense expert, and that factual summary should emphasize the factual disputes in the case.

Many experienced defense experts will anticipate being trapped with such hypothetical questions and will either refuse to admit that anything is below the standard of care, including direct violation of hospital policies, or will admit to negligence in some form but then deny any causal connection to the injury.

Either response will allow the jury to focus on the facts of the case rather than the expert's contrived opinion.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine