In this month’s TRIAL magazine, Chuck Zauzig, a specialist in medical malpractice and a frequent national lecturer in medical malpractice, describes how to dismantle the defense medical expert’s opinion and weaken the defendant’s case in medical malpractice trials.
Master the medicine
Mastering the medicine is the crucial first step in undermining a medical expert’s opinion. Zauzig explains how to do that: Start simple and progress to the complex. “The deeper you dig, the more you know, and the less you can get fooled by the defense medical expert.”
For example, reading relevant periodicals from industry groups like the American College of Obstetricians and Gynecologists is a great way to learn where defenses may be lurking in the case. Thorough and deep education in the medicine of the case forms the basis of an attack on the expert’s opinion and is essential when navigating the medical records.
Personally reviewing the chart is crucial to fully understanding it, Zauzig believes, and his detailed methodology for organizing and reviewing records forms the basis for questioning the expert during deposition.
The next step in building the attack is to anticipate response pathways the expert may use when being questioned. Properly learning the pathways is key to knowing how to structure your questions, and whether and how to follow up on the expert’s answers. Zauzig provides concrete examples and says, “Score points in the rabbit hole, and come back and score points on the main question.” He cautions readers to remember the starting point in their line of questioning, come back to the original question and get the expert to answer it.
Strategizing the offense
The article continues with offensive strategies, including testing the strength of the DME’s opinion and using the polarization technique to isolate the expert when her opinion differs from those held by other experts or from those found in the established medical literature. Zauzig also describes tactics to expose the expert’s actual treatment practices that are inconsistent with his or her courtroom opinion. Through personal example, Zauzig explains how to use a witness’s emphatic response to undermine the strength of his or her opinion.
Focusing on the jury’s perception
In the end, keep in mind that the jury thinks in the context of a doctor’s job, not of the standard of care, Zauzig advises. Use this perception to depose the expert who opines that a defendant complied with the standard of care by asking whose job it was to handle a critical aspect of the patient’s care. Zauzig gives examples of using this insight to lay the groundwork for calling the opinion into question and shining an unfavorable light on the expert.
TRIAL Magazine is a publication of the American Association for Justice and the complete article published in the August 2017 issue is available to subscribers on the American Association for Justice website.
DISCLAIMER: The results of every case depend on factors unique to that case, and Nichols Zauzig Sandler, P.C. and Zauzig Trial Group do not guarantee or predict results in any given case