Paralegals tasked with retaining medical experts face unique and somewhat stealth challenges. This is because paralegals are given varying degrees of direction by their attorney who then expects the correct expert will be selected. Those attorneys may not fully understand the medical issues raised, the underlying medicine, and the practice boundaries of all potentially relevant medical specialties. Even if the attorney does understand the foregoing, they may fail to communicate the task correctly. Beyond that, the attorney may not provide the necessary case details for the paralegal to make the correct decision.  In the end, this could cause a paralegal to retain an expert in the wrong specialty, get a duplicative expert, or fail to obtain an expert who is necessary. At best, there will be wasted money, wasted time, and unnecessary stress. At worst, there can be expert preclusion, case dismissal, and a legal malpractice suit. 

To be fair—and to state the obvious—attorneys have gone to law school, not medical school. They are not taught about medical specialties while in law school. Even if they know many specialties, they may not know all the specialties relevant to their case. If an attorney does not know that a specialty even exists, how could they choose it...and how could they instruct their paralegal correctly?

The same truths apply regarding medicine, pathophysiology, and treatments. Of course, nearly every personal injury attorney learns about the more common medical specialties from their earliest medical cases (usually with slip-and-falls, and motor vehicle accidents involving orthopaedic, neurologic, psychiatric, and spine matters). With more experience comes exposure to other specialties. Most personal injury attorneys will never see interventional neuroradiology, pediatric rheumatology, bariatric surgery, endocrine surgery, renal pathology, reproductive toxicology, or oculoplastic surgery cases.

Most cases may seem straightforward but no one should be blindly trusted. Thought about another way: Would you trust a doctor who knew only 75% of the diagnoses in their field?

Not only are paralegals responsible to correctly complete the tasks they have been given, they also may be working under an unreasonable attorney. This unenviable position is unfortunately quite frequent for paralegals. Attorneys who are disorganized, are medical-legal inexperienced, tend to procrastinate, or are prone to be unreasonable with their employees may make the paralegal’s job more stressful and tenuous.

It is unreasonable to expect every paralegal—or even every attorney—to know the medicine of each case and the potentially relevant medical specialties. The best course is to be as knowledgeable as possible. That means trying to learn as much as possible about the facts of the case, the medicine, the issues, and the potentially relevant medical specialties, in order to make the best decision for the case and the client.

In the 28 years I have been running Medilex, a medical-legal consulting firm with medical experts in approximately 180+ medical specialties, I have been involved in approximately 15,000 cases. That is likely more than any single person in the country. Since the choice of expert is so critical, I provide a preliminary telephone discussion (called triage) for each case without charge or obligation. These calls may be a few minutes or may extend to an hour. I believe triage is necessary which is why I provide it for free. 

I have found that attorneys and paralegals fall into one of five categories when they call:

1. They know what specialty they need.

2. They do not know what specialty they need.

3. They think they know what specialty they need—but are incorrect.

4. They think they know what specialty they need—but there is a better choice, (e.g., perhaps one expert can serve two roles, avoiding the need for another expert).

5. They think they know what specialty they need—but have an incomplete list of the experts they actually need.

The most dangerous is the third category, although the fourth and fifth are very problematic. Failing to know is usually not a sin; failing to realize that or failing to obtain the needed information may be. Again, there can be serious repercussions for the attorney, the client, and the paralegal’s job. 

Sometimes learning vicariously is better than learning from one’s own mistakes, so here are some examples (from both paralegals and attorneys):

1. A very experienced attorney called in a panic. He had been thrilled that an orthopaedic surgeon who had only handled defense malpractice cases agreed to review his plaintiff malpractice case. While preparing the doctor for his deposition, the attorney asked how he did the surgical procedure at issue in the case; the doctor replied, “Oh, I don’t do that procedure.” This was a foot-and-ankle orthopaedic surgery case and this doctor was a general orthopaedic surgeon who, like many in his field, long ago stopped operating on feet (and ankles). The attorney almost put this expert up for deposition—after which he would have almost certainly been precluded from replacing him. Luckily, he realized this and avoided a legal malpractice claim.

2. A paralegal called asking for a gastroenterologist in a specific county to perform an IME. I did not have what she asked for but inquired further. Her case involved a woman who went to a barbeque, contracted Salmonella, went into renal failure, and got better. Though most Salmonella cases involve gastroenterology, infectious disease, or microbiology issues, this one mandated a nephrologist (kidney expert). Moreover, an exam was completely unnecessary because a nephrologist would have essentially nothing to examine.  “Turn over so I can cut open your back and feel your kidney” is ridiculous. This case review was entirely based on the medical records. Two major errors were avoided.

3. A paralegal called about a gynecologist’s failure to diagnose cervical cancer. Her attorney told her to get a gynecologist and planned to retain an (medical) oncologist for causation/damages if the gynecologist opined positively. Unfortunately, most attorneys do not know about the field of gynecologic oncology. A gynecologic oncologist treats such cancers, specifically surgically, and coordinates the care by other specialists. Retaining this single expert avoided having to retain multiple experts.

4. An attorney who happened to be the chairman of his bar association’s medical malpractice committee called asking for an oncologist expert. The case involved a young male who had a leg tumor visible on MRI but not diagnosed by the radiologist. Eventually, he lost neurologic function. He had retained a radiologist for standard of care but was seeking a causation/damages expert. Because there was a radiologic study showing the tumor on “day one” and another showing it when it was diagnosed years later, the issue was whether it could have been removed soon after “day one” without neurologic injury. A nerve entangled tumor should be removed by a neurosurgeon. When explained that way, the attorney realized he needed a neurosurgeon and that his request for an oncologist was incorrect.

5. More attorneys and paralegals than I can remember have called looking for “an orthopaedic surgeon” for a lumbar or cervical spine surgery malpractice case. Although orthopaedic surgeons treat spines medically, unless they are fellowship-trained in spine surgery, they do not operate on the spine. Orthopaedic surgeons trained in spine surgery are called orthopaedic spine surgeons. The other specialty that operates on the spine is neurosurgery. Typically, the paralegal or attorney calling has minimally researched the defendant and found them to be “board certified in orthopaedic surgery,” hence the request for an orthopaedic surgeon. Retaining a (mere) orthopaedic surgeon arguably crosses the border into legal malpractice and risks expert preclusion. That is because in most states there is a requirement in malpractice cases to have an expert who performs the procedure in question. Similarly, retaining an orthopaedic spine surgeon in a case involving a neurosurgeon—or vice versa—can result in expert preclusion in states that require a malpractice expert be board certified in the same field as the defendant. Attorneys and paralegals calling from states which do not have that requirement, may not realize they have an alternate choice of expert.

6. An attorney facing summary judgment managed to get a neurosurgery expert in an intraoperative brachial plexus injury matter to opine not only about the neurosurgical standard of care, but also about the anesthesiology standard of care. His reasoning was, “Well, the neurosurgeon has been in the operating room ‘plenty of times’ with anesthesiologists, so can opine about neurosurgery standard of care.”  Of course, the quid pro quo then must be that because anesthesiologists have been in the operating room “plenty of times” with neurosurgeons removing brain tumors, they are qualified to be experts against neurosurgeons regarding standard of care in the removal of brain tumors.

7. Per his attorney’s specific instructions, a paralegal called requesting “a cardiologist” to opine about causation on a medical malpractice matter. The case involved whether cardiac stenting would have saved the plaintiff’s life. (General) cardiologists do not implant cardiac stents. Angioplasties and stent placements are performed by interventional cardiologists. Thankfully, this paralegal was able to convince his attorney that he had been told to get the incorrect expert.

8. Most paralegals and attorneys dealing with bone injury from alleged child abuse will call requesting a pediatric orthopaedic surgeon (or, sometimes, an emergency medicine physician). Such doctors are most concerned with fixing their patients, not usually with determining how the person was injured. In some cases, this may be the correct choice, but another specialty is implicated: child abuse and neglect pediatrics. There are specialized pediatricians who are fellowship-trained to determine which cases are, and which are not, abuse. They are uniquely qualified to analyze potential child physical (including internal, bruise, bone, neurologic, burn) injury, sexual injury, and death cases. As a bonus, child abuse and neglect pediatricians tend to be much less expensive than pediatric orthopaedic surgeons.

9. A paralegal inquired about a psychiatrist for a competency matter. Most psychiatrists are doing therapy but within psychiatry are multiple subfields including forensic psychiatry—psychiatry as it pertains to the law. Rather than a doctor who explores through psychotherapy one’s relationship with their mother during childhood, competency matters are best handled by a forensic psychiatrist.

10. A paralegal called not knowing what she needed. Her case involved an orbital fracture of a child dropped from a window. There is a field so small that one of its members once (decades ago) said “When I tell other doctors my specialty, I have to explain what it is.” That is small. The field is oculoplastic surgery. Oculoplastic surgeons operate on lacrimal (tear) duct malignancies and benign conditions, perform blepharoplasties (eye lid lifts), and fix orbital fractures.

11. Very frequently, paralegals and attorneys call for pain and suffering evaluations. They most frequently request emergency medicine physicians, trauma surgeons, critical care specialists, and pain medicine experts. As noted regarding child abuse cases, nearly all medical specialties are concerned with making their patients better—but not as concerned with the etiology of their injuries. Forensic pathologists are dealing with the deceased (who, of course, cannot be “fixed”); their job is to determine cause and manner of death and injury. As part of that, they determine the mechanism of death, the order of injuries including which were fatal versus not, and which impact consciousness. Forensic pathologists are typically best for pain and suffering cases.

From this handful of examples, the repercussions of retaining the incorrect expert are very apparent. Again, a paralegal may feel unable to question (or, heaven forbid, correct) their attorney but they might have the last chance to avoid such an error. The paralegal might even get blamed for the error--even when precisely following their attorney’s orders. “But I did exactly what you told me to do!” may not be an acceptable defense to prevent getting fired. Hence, paralegals face unique and stealth challenges when tasked with retaining medical experts.

As we all know, there is no simple way to navigate such interpersonal workplace situations with one’s boss. Office politics can involve landmines and paralegals are almost never on equal footing with attorneys. Accordingly, they may become the scapegoat, particularly if the attorney is prone to rationalizing that any mistake must be someone else’s fault.

Knowledge is power. Be open to learning about the facts, medicine, medical specialties, and the issues even if the new information seems to be at odds with what the attorney ordered. Though it may be excusable for an attorney or paralegal not to know about some aspect of medicine or of existing medical specialties, it is not usually excusable to fail to learn that and to obtain the needed information. Armed with information, a paralegal can then decide how to proceed, remembering that attorneys are responsible to represent their clients not only zealously, but also correctly. Similarly, a paralegal must act not only for their attorney but also on behalf of the case and client. No one wants to have to explain to a client, a judge, or worse—a legal malpractice insurer—why they chose the wrong medical expert. These are serious obligations about which each paralegal must always be cognizant.  Doing both can be a juggling act, particularly with a difficult boss.  So, it is best to get educated. 

The job you save may be your own.