5.5 Determining Which Experts Will Be Most Effective

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

5.5 DETERMINING WHICH EXPERTS WILL BE MOST EFFECTIVE

5.501 In General. After determining the medical specialties involved in a case, the attorney should then consider the other attributes, characteristics, and qualities that make a particular witness persuasive.

5.502 Credibility.

A. In General. Credibility and "likeability" of the expert are even more important than impeccable qualifications. While an investigation into credibility issues can be uncomfortable, it is a prerequisite to selecting an expert. ⁶³

B. Avoiding Biased Experts. It is generally prudent to stay away from experts who devote more than only a limited amount of their professional time to the review of medical malpractice cases. Ideally, counsel should avoid retaining physicians whose prior testifying experience is not fairly balanced between patient-plaintiffs and doctor-defendants. But it is hard to find this balance in practice since there are far fewer experts willing to testify for plaintiffs, and as a consequence they testify more than 50 percent of the time for plaintiffs. Conversely, many physician experts testify exclusively in defense of health care providers and do not have a balanced testifying history. Doctors who spend a great deal of time in forensic activities, who are not involved with the management of patients on a regular basis, or who always speak on behalf of either plaintiffs or defendants, are more likely to be viewed as "hired guns" whose opinions may be discounted as biased.

This is also true for experts who have some relationship to a party on whose behalf they will be rendering opinions. That relationship may impede the expert's ability to be...