I had the privilege of questioning an expert in an erbs palsy case last week.
In Federal Court the parties are permitted to question experts prior to trial in the form of a deposition (a question and answer session with the attorneys present). The expert, after reviewing the records prepares a written report that descirbes his evaluation of the records, his opinions, and the bases for his opinions.
In the case I had, the expert was a world reknowned expert in maternal-fetal medicine; a subspecialty of obstetrics & gynecology.
The expert's curriculum vitae (CV) was over 40 pages long. In my first set of questions to the expert, I told him quite honestly I was very impressed with his CV. He literally had published hundreds of articles, chapters in textbooks, abstracts, and presentations. Yet in all the hundreds of articles and publications to his name, he didn't have a single publication about the issue directly involved in this case.
He hadn't done any studies on the issue of shoulder dystocia, erbs palsy, or the diagnosis, treatment or prevention of shoulder dystocia and erbs palsy.
Also look to the witness' clinical experience and current status at their hospital. This expert who was going to be giving opinions about whether doctors at a hospital in New York rendered the appropriate medical care hadn't done a vaginal delivery in a long time. Nor had he had any recent experience with shoulder dystocia, or any deliveries where erbs palsy was diagnosed at the time of delivery.
Even though your opponent produces a well-known expert against you, pay careful attention to just what the witness is an expert in. A careful review of his CV often reveals plenty of fodder for cross-examination.
LOOK AT THE BASIS FOR EACH OF THE CONCLUSIONS THE EXPERT HAS REACHED
If the facts upon which the expert rendered an opinion is inaccurate or faulty, then his conclusion will also be faulty. It is the obligation of every attorney to whittle away those inaccurate facts that the opposing expert has relied upon, to show that this experts' opinion is no longer valid.
- "Doctor, assume that Mrs. Jones testified that she had pressure placed upon her belly during her labor. Would you agree that fact would be most consistent with the application of supra-pubic pressure?
- Would you also agree that the only time supra-pubic pressure is used is when there is a shoulder dystocia?
- If Mrs. Jones' recollection of pressure being applied to her belly is correct, then you'd agree that this is evidence of shoulder dystocia?
- Now doctor, in your conclusions, you felt that there was no evidence of a shoulder dystocia based on the information in the medical record, correct?
- However, you'd agree that the individual who delivered this child made very few notes in the record, and in fact the record is devoid of any mention of shoulder dystocia, correct?
- Yet, you decided to base your conclusion on a record that was missing a great deal of information?
- Isn't it true doctor that another physician testified that McRobert's maneuver was used during the delivery?
- You discounted what this witness had to say, didn't you?
- If you had credited what he said- and he was actually in the delivery room, you'd agree that his statement that McRobert's was used, together with mom's testimony that pressure was placed on her belly, would strongly suggest that a shoulder dystocia was present, correct?
- If shoulder dystocia is present then that person doing the delivery is obligated to call for help, for the senior-most doctor to help with maneuvers to get this child delivered without putting excessive traction on the baby's head.
- You'd agree that excessive lateral traction, in light of a shoulder dystocia can cause, and in fact is the most likely cause of erbs palsy."
KNOW THE MEDICINE
In any malpractice case, you must become familiar with the medicine involved in your case. You must become a mini-expert in the narrow topic of medicine in your case.
In an erbs palsy case, the attorney must know the basics:
brachial plexus injury,
cutting an episiotomy,
sweeping the posterior arm,
fracturing the clavicle,
the zavanelli maneuver,
normal progression of labor,
first stage of labor,
second stage of labor,
glucose tolerance test,
ACOG statement on shoulder dystocia (American College of Obstetrician and Gynecologists guidelines for recognizing and treating shoulder dystocia).
Show that the expert's conclusions are inaccurate, and do it with a smile!
KNOW THE MEDICAL RECORDS
Make sure you review those medical records over and over again. Know it better than the expert and your adversary. It will prove well worth it when you can point to a specific part of the medical record that the expert cannot recall.
ONLY BY THOROUGH PREPARATION AND EXHAUSTIVE RESEARCH OF THE TOPIC CAN YOU PERFORM A SUCCESSFUL CROSS EXAMINATION OF A MEDICAL EXPERT IN A MEDICAL MALPRACTICE CASE.