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Why do Most Medical Experts Refuse to Bring Medical Records They've Reviewed to Court when Testifying?

It's a medical malpractice case.

You believe your doctor was careless.

You believe his carelessness caused you harm.

You believe your injuries are permanent.

You hire an attorney to sue your doctor.

In order to evaluate your case, your attorney must have all of your medical records reviewed by a qualified medical expert.

Only if your expert confirms (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) the injury is significant can your lawyer file a lawsuit on your behalf here in New York.

The stack of medical records sent to your expert will have a cover letter attached.

It will remind the doctor that he has agreed to review this case as a medical expert.

That cover letter will list the various records that are enclosed.

It will usually confirm the expert's hourly fee and ask him to reach conclusions about whether you, the injured patient, have a valid case.

Let's assume your expert confirms you have a good case.

Fast forward two years.

During that time, the defense has fought you tooth and nail.

The defense argues your doctor did nothing wrong.

The defense argues that if they did something wrong, so did you.

The defense also claims that your injuries are not as bad as you claim them to be.

The defense refuses to negotiate.

This is a 'no pay' case.

That means they are taking this case to trial.

That means they want a jury to decide whether you are more likely right than wrong.

You are now at trial.

A jury has been selected.

Six members of the community who have said they can be fair and impartial.

Opening arguments have been made.

Your doctor whom you have sued has been called to testify.

He is questioned by your attorney.

The defense lawyer then gets to question him.

You and your spouse testify as well.

Then, your attorney calls your medical expert to testify.

He walks into the courtroom empty handed.

Those massive stacks of medical records your lawyer sent him are nowhere to be found.

Actually, certified copies of all your records are on a table right in front of you.

All your medical records have been subpoenaed into court.

To be available for any doctor or expert to review while testifying.

Your records will be admitted into evidence.

This way the jury can read them if they choose while they are deliberating at the end of your trial.

You might be asking yourself, "Why didn't your expert bring all of the medical records into court?"

That's a good question.

They are two key reasons why.

First, assuming the medical records are massive, it becomes physically difficult to transport all those records into the courthouse.

This is especially true if the expert is coming to court by public transportation.

There's a more important reason why most experts refuse to come to court with all of your medical records.

It's because the opposing attorney is permitted and entitled to see every single document and every single record that they reviewed in order to reach their opinion.

Again, you might be thinking “What's the big deal? They're the same records that have been subpoenaed into court. Why does it matter?”

It matters because the attorney who sent the expert records may not have sent him the complete record.

If he reached his opinions without the benefit of a complete medical record, the doctor's opinion might change if he saw the rest of your records.

It matters because certain pages may have been left out.

It matters because when the doctor was reviewing your records, he may have made notations on the record or in the margins that could be revealing.

In addition, the attorney who sent the medical records to his expert for review, may have written something in his cover letter that could be damaging to the expert or to the attorney.

There have been many instances where a doctor's credibility has been ruined because of notes and comments made when reviewing a medical chart.

Likewise, there have been instances where an attorney has made a comment in a cover letter, never expecting a jury to see it, that hurt his credibility and his case.

In fact, when a lawyer prepares his medical expert for coming into court and testify, one of the first instructions he will typically tell his expert is that he is not to bring any medical record to court.

The opposing attorney can review anything the doctor brings with him to court.

Let me share with you a great example of this that destroyed an expert's credibility.

It was a medical malpractice case.

In Westchester County.

It happened to be a case involving improper foot surgery.

I put on all of my witnesses.

My medical expert had already testified.

It was now time for the defense to put on their witnesses.

The defense called their medical expert.

He was well-regarded in the medical community.

He had been reviewing legal cases for doctors for more than 35 years.

Interestingly, he'd never testified on behalf of an injured patient.

When he took the witness stand and began testifying, he had no medical records with him.

He had no x-rays with him.

He had no CAT scan with him.

However, in the first few moments of testifying, he let the jury know that he did indeed review all of the patient's medical records including diagnostic imaging tests in order to reach his opinions.

A few hours later I began my cross-examination.

One of my first lines of attack was to ask the doctor where were the medical records that he had reviewed.

I asked the doctor why he did not bring those records and court.

He gave me a nonsense excuse and said that his attorney told him not to bring anything to court.

I asked him if he was aware that anything he brought to court I would be able to see.

He finally admitted that yes, he knew that anything he brought to court I would be able to see.

I then asked to see a copy of the cover letter the defense attorney sent along with the medical records.

He claimed he had just reviewed that cover letter and the medical records the night before.

I asked him where it was.

He said sitting in his medical office on his desk.

I asked him to call his office when he took a break and have his secretary fax a cover letter to court.

That made him “remember” that the cover letter and those records were not in fact on his office desk but rather in the trunk of his car.

“Where's your car doctor?”

“Parked at my office.”

“Who has the key?”

“Oh, I have the key.”

He was doing everything possible to make sure the jury did not see the cover letter the attorney sent to him.

Not only did it create the impression that he was trying to hide something, but with every passing question, the doctor changed his answer about where this cover letter and these records really were.

The jury's verdict reflected how they felt about the doctor and the defense.

The jury returned a seven-figure verdict in favor of my client.

To read the actual transcript of what took place during my cross-examination of this expert, I invite you to click here. My cross examination begins on p. 862.

Here's another example of how a medical expert's notes destroyed his credibility. 

My client sued a municipal hospital here in New York.

It was a case against the New York City Health & Hospitals Corporation.

It was a hotly contested case.

We claimed the doctors at this municipal Hospital violated the basic standards of medical care causing my client significant injury.

The attorney representing the hospital claimed this was nonsense.

The venue was Queens County.

We were in a magnificent courtroom.

The acoustics were awful.

I had finished putting on all of our witnesses.

I had rested.

That meant it was now the defense's turn to bring in any witnesses they felt were necessary to defend the case.

The defense called my client's treating orthopedic surgeon to testify.

This was a low blow.

The defense had reached out to my client's treating orthopedist and convinced him to come in and testify against his own patient.

One of the first questions I asked this doctor on cross examination was whether he realized he was testifying against his own patient.

You could feel the tension and conflict immediately.

The six members of the jury all did a double take as they watched the doctor trying to wiggle his way out of that question.

The members of the jury appeared to be shocked that the patient's treating doctor would agree to come in and testify as an expert against him.

But that was only the beginning.

The defense lawyer asked this expert how much money he was charging for his time in court, away from his medical practice.

He testified he was charging only $3500.

That's fine.

No problem there.

That's on the low side.

Orthopedists typically charge $7,500-$15,000 to come and testify in court.

Still, there was no warning sign I could think of when I heard the doctor's fee.

When it was my turn to cross examine this orthopedic surgeon, I asked him what records he reviewed.

I asked him about the cover letter the attorney sent to him.

I asked him where was his bill.

This doctor chose to come into court carrying all the medical records the defense lawyer sent to him.

I immediately asked to see everything he brought with him.

The judge agreed.

For the next few minutes, while standing directly in front of the jury with the doctor still on the witness stand, I carefully scanned through a good number of pages in the stack of records the doctor handed to me.

The fifth page stopped me cold.

It was the doctor's invoice.

The bill that he sent to the defense lawyer.

What was remarkable was how much he charged the defense attorney.

The bill was for $10,000.

The doctor had just said only moments ago that he charged only $3500 for his expert review.

Yet staring in front of me was his bill confirming that he charged almost 3 times as much.

This was a clear contradiction.

It was obvious that he hadn't reviewed his bill recently.

It was obvious the doctor lied about his bill.

It was obvious that the doctor was trying to show the jury that his fee was simple and reasonable.

Instead, the reality was different.

The doctor's own testimony and his bill destroyed his credibility.

Had this medical expert not brought his records into court, I would never have been able to destroy his credibility on this issue.

To learn about the best cross examination I ever did during pretrial testimony, I invite you watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer