9.22 Direct Examination of the Defense Expert

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

9.22 DIRECT EXAMINATION OF THE DEFENSE EXPERT

9.2201 Qualifications. If the defense's standard of care witness is a Virginia practitioner whose active clinical practice is in the same specialty or a similar field, there should be no difficulty in qualifying that witness as an

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expert. However, where out-of-state experts are concerned, defense counsel should remember that "what is good for the goose is good for the gander." All attacks made on the plaintiff's standard of care expert are applicable to defense experts. As a practical matter, the fraternity of the medical profession often makes it easier for defendants than for plaintiffs to obtain in-state support. Nevertheless, some cases require going beyond state lines for support. When the defense relies upon out-of-state support for standard of care testimony, counsel must be prepared to respond to the same attacks he or she made against the plaintiff's out-of-state experts. This preparation must begin before trial, as the expert must come to court prepared to testify to experience that will prove the expert's familiarity with the Virginia standard of care.

9.2202 Bias. Many physicians refuse to testify in medical malpractice cases except to support other physicians. Obviously, these physicians will have a history of 100 percent physician-oriented testimony. Just as obviously, plaintiff's counsel can attack the expert as being biased against patients, even those who may have legitimate malpractice claims. Defense counsel should work to prepare the witness for such an attack. The witness may explain his or her history as being one merely of personal preference: the witness reviews cases with an open mind, testifies where the standard of care is met, and declines further involvement with cases he or she cannot support. It should be brought out, where appropriate, that the expert has given plenty of negative reviews for defendants in his or her career, which may include negative reviews for counsel in the case in question. Also, some physicians are willing to review cases for plaintiffs as consulting experts to offer favorable opinions on the standard of care but are unwilling to testify at trial for them.

Of course, no witness will view himself or herself as totally biased or closed-minded, so even a completely defense-oriented witness will be able to explain his or her history, usually in the above manner. In any event, the attack of plaintiff's counsel should be anticipated before trial, the witness should be prepared before trial, and the subject should be covered during direct examination. If the attack is anticipated and responded to...