What to Do When a Defense Expert Claims a Medical Procedure Was Unnecessary

A useful practice pointer from Scott Campbell this morning at the Fried Rogers Goldberg Workshop:

When the defense has a credible medical expert offer an opinion in a deposition that a procedure was unnecessary, one strategy is to push that expert on whether recommending the procedure violated the standard of care. Most experts won’t want to go that far; they didn’t sign up to trash their colleagues. A sample exchange might work something like as follows:

Q.         You believe the neck surgery was unnecessary?

A.         Yes

Q.         In your opinion, did Dr. X violate the relevant standard of care for your profession when he recommended that my client undergo the surgery?

A.         Well, no, I would not go that far. I just think it was more aggressive than necessary under the circumstances.

Q.         Is it your opinion that my client was unreasonable in relying on her    physician’s advice in undergoing surgery?

A.         No.

This approach can take the sting out of the expert’s testimony by getting right to the bottom line. Your client behaved appropriately in relying on advice from her doctor, and is entitled to be reimbursed for the cost of the procedure. 

Questions about expert testimony? Kurt Kastorf has drafted and defended dozens of Daubert motions. Contact him here.