How to Ask Your Treating Doctor to Be Your Expert in Your Medical Malpractice Case

In every medical malpractice case here in New York, we are required to prove your case using a medical expert. The expert must have confirmed that there is wrongdoing; that the wrongdoing caused injury; and that your injury is significant and permanent.

Many times, you, as the injured victim, may be unaware that there has been any wrongdoing. The first inkling of a problem is where one physician criticizes the treatment you had by another doctor.

Let's say you experienced a bad outcome with Doctor #1 and now continue your treatment with Doctor #2. This doctor will have much more information than a doctor who merely reviews your medical records as an expert. It is always preferable to have a treating physician come into court and testify not only about his review of your medical records, but also about his physical examination of you; his findings; and his treatment plan.

I often have clients ask me "How do I ask my treating doctor if they will come into court and be an expert in my medical malpractice lawsuit?" Here's my response:

I always recommend that you be up front and honest with your treating doctor. Let him know that you have significant concerns about the treatment you received in the past. You might suggest letting your current doctor know that in order to prove a valid claim against the original doctor who caused you harm, it is necessary for you to bring in a medical expert who can talk about what the standard of care is in your community. I always advocate that doctors should stand up and be able to say, without fear of retribution, whether a colleague treated a patient appropriately and in accordance with good and accepted medical practice.

In many medical specialties, there is great reluctance for physicians to stand up and speak out against their colleagues, regardless of what town, county or state they practice in. In those cases where the patient's own treating doctor refuses to cooperate and come in as a medical expert, we have no choice but to go to our own stable of medical experts to review the records and comment upon them.

Years ago, I had two different malpractice cases which were coming up for trial. I specifically tried to contact expert witness doctors who were known for frequently testifying for doctors and hospitals. I wanted them to review a case on behalf of an injured victim. To my surprise, neither one of these physicians would agree to review the records on behalf of my clients. The purpose of bringing in an expert medical witness is to explain to the jury what the records mean and have an experienced physician interpret those medical records.

If an expert witness has testified for both sides, is much harder to show that this expert witness is entirely biased. It is much easier to show a consistent bias if the expert doctor testifies only for doctors and hospitals.

The bottom line? Tell your treating doctor that without having his knowledge and expertise to help prove your case, you will need to hire someone who has not had the benefit of his expertise and his examination and treatment of you.