Here are some helpful reminders to those handling cases involving medical experts, whether or not you are working with Medilex:
Do not delay.
Over the years, this is far and away the most important rule most attorneys forget. Medical experts can have emergencies, teaching obligations, conferences, or vacations, or otherwise be unavailable. Always allot more than sufficient time to allow for contingencies, such as incomplete materials (requiring more time to obtain same), expert conflict of interest (requiring a “replacement” medical expert), an unfavorable opinion (such that a second opinion is desired), or a newly discovered issue (requiring an additional medical expert).
Develop your strategy first; act second.
Many attorneys send cases for review without understanding what they need to prove, what each medical expert needs to say, and what each medical expert can legitimately state while remaining within the scope of his or her field of expertise. Despite procedural requirements in some states, many attorneys file suit without ever consulting an expert. Self-interest aside, this is more than just unwise. Beyond that, before you file suit, you should have the best understanding possible (under the circumstances) of your case, the issues presented, and which medical expert fields need to opine to get you to the final goal of winning your case.
Always send copies of originals, not the originals themselves.
Sending a unique/irreplaceable item that could be the crux of your medical-legal case could soon be the crux of the legal malpractice case against you. That should be a sobering thought. Always consider the possibility of human error by your staff, your chosen overnight carrier or the post office, a medical expert, an expert’s staff, or the like. We believe in this so strongly that Medilex will never accept responsibility for materials that are lost, destroyed, or damaged. Sending original materials will delay the review process until those materials are retrieved and copies sent in replacement. Also note that materials (including radiologic films) will not be returned to the attorney.
Include all relevant material initially, especially copies of radiologic films.
Failing to do so can result in an expert needing additional billable time to re-review the case, at least in part, upon receipt of the missing materials.
Include a chronology.
A chronology of events and issues presented (consistent with any discovery concerns) can expedite the review process and make it less costly. Helping the medical expert this way may save you time and money.
Label all material by source.
At a minimum, label each document set by source to tell the medical expert who had possession (and responsibility) for which materials. This will make the medical expert’s review more accurate. Disordered records require an expert’s time to organize. Moreover, errors can result, for example, when an expert has to guess who had certain material and who is, therefore, responsible for its content.
Ask the hard questions when you speak to your medical expert.
Be thorough when you speak to your expert. Does the medical expert need to opine to a reasonable medical certainty? Was the failure to make that diagnosis a deviation from the standard of care or just C-minus medicine? Are you trying to get the medical expert to opine outside of his or her field? Is the medical expert erroneously opining outside of his or her field? Has your expert done the surgery in question? Further, your medical expert may or may not be familiar with the language requirements of your court. Always know exactly what the expert will need to say, and ask him or her when you speak. It is better to find out the truth now than when the witness is on the stand at trial.
Do not “dump” materials.
“Dumping” is sending years (or many months) of additional materials, usually deposition transcripts, very close to a deadline such as a trial or deposition. A medical expert is only human and may not be able to do the work, do it thoroughly, or do it correctly without sufficient time. “Dumping” can seriously jeopardize your case. It can also cause you to alienate your medical expert.
Consult with your medical expert regularly.
Doing so will assure that he or she is up to date and can give you the best advice possible. Consult with the expert prior to conducting/defending depositions. Let the expert assist as you draft documents. It is always best to be careful rather than to assume.
Provide sufficient notice for testimony time.
Generally, three weeks’ notice is the bare-minimum advance notice for most, but that is not true for all medical experts. Some need more; others less. Insufficient notice may result in an unavailable expert for trial with disastrous results. With Medilex, testimony time itself is billed on a half- and full-day basis, though at higher rates than time for case review. Medilex provides for partial refunds based on the date/time of cancellation. Our detailed testimony scheduling/cancellation procedures are available upon request.