1. THE PATHOLOGIST AS A WITNESS IN MEDICOLEGAL CASES How to swim in shark- infested waters Geoffrey Mendelsohn, M.D. With bonus photos from my African safari trip

2. THE PATHOLOGIST AS A WITNESS IN MEDICOLEGAL CASES Fact Witness Fact Witness Expert Witness Expert Witness Defendant in medical malpractice case Defendant in medical malpractice case

3. FACT WITNESS Pathologist/physician of record Pathologist/physician of record biopsy biopsy cytology cytology other diagnostic test other diagnostic test autopsy autopsy Forensic case Forensic case

4. FACT WITNESS Official reports or affidavits may be admissible as evidence Official reports or affidavits may be admissible as evidence Fact witnesses may be called to testify in order to legally establish certain facts in a trial or hearing Fact witnesses may be called to testify in order to legally establish certain facts in a trial or hearing

5. FACT WITNESS A fact witness is not called to testify on behalf of or against anyone. A fact witness is called to establish certain facts in a case A fact witness is not called to testify on behalf of or against anyone. A fact witness is called to establish certain facts in a case A fact witness will receive a subpoena to appear at trial A fact witness will receive a subpoena to appear at trial A fact witness is reimbursed for expenses A fact witness is reimbursed for expenses

6. FACT WITNESS A fact witness is not on trial A fact witness is not on trial A fact witness may set the tone for a trial or hearing, e.g. demonstrate that a process was either careful or sloppy, well documented or poorly documented, etc. A fact witness may set the tone for a trial or hearing, e.g. demonstrate that a process was either careful or sloppy, well documented or poorly documented, etc.

8. FACT WITNESS Everything we do must be accurate and well/clearly documented Everything we do must be accurate and well/clearly documented Even though a fact witness is not on trial and does not appear on behalf of any of the parties involved, attorneys representing the parties may try to discredit certain facts to their advantage Even though a fact witness is not on trial and does not appear on behalf of any of the parties involved, attorneys representing the parties may try to discredit certain facts to their advantage

9. FACT WITNESS Provide information in a neutral and unbiased manner Provide information in a neutral and unbiased manner Be professional, confident, and authoritative Be professional, confident, and authoritative

10. The expert witness is testifying on behalf of one of the parties involved in a case The expert witness is testifying on behalf of one of the parties involved in a case criminal case criminal case civil litigation civil litigation medical malpractice medical malpractice other, e.g. product liability (asbestosis, pneumoconiosis, etc.) other, e.g. product liability (asbestosis, pneumoconiosis, etc.) EXPERT WITNESS (NOT WITNE$$)

11. EXPERT WITNESS The expert witness has special skill or knowledge gained by education, training or experience and may be summonsed or requested to give an opinion or expert evidence during a trial, based on his/her field of expertise The expert witness has special skill or knowledge gained by education, training or experience and may be summonsed or requested to give an opinion or expert evidence during a trial, based on his/her field of expertise Have a current copy of your CV available – important to establish your appropriate experience, expertise and skill Have a current copy of your CV available – important to establish your appropriate experience, expertise and skill Ohio law requires that any expert witness in a medical malpractice case be a licensed physician and spend at least 50% of his/her professional time in the practice of medicine Ohio law requires that any expert witness in a medical malpractice case be a licensed physician and spend at least 50% of his/her professional time in the practice of medicine

12. EXPERT WITNESS The admissibility of expert evidence is predicated on the existence of knowledge and experience that is beyond that of the ordinary citizen and is applicable to the matter before the court The admissibility of expert evidence is predicated on the existence of knowledge and experience that is beyond that of the ordinary citizen and is applicable to the matter before the court Expert testimony has the effect of proving facts Expert testimony has the effect of proving facts

14. EXPERT WITNESS The expert witness testifies on behalf of one or more parties involved in the litigation The expert witness testifies on behalf of one or more parties involved in the litigation written report written report discovery deposition discovery deposition videotaped trial deposition videotaped trial deposition appearance at trial or hearing appearance at trial or hearing

15. EXPERT WITNESS An expert witness is reimbursed for expenses and for time spent on a case An expert witness is reimbursed for expenses and for time spent on a case An expert witness is not paid for his/her evidence or opinions An expert witness is not paid for his/her evidence or opinions Be honest and accurate with time – do not allow yourself to be enticed by $$$ Be honest and accurate with time – do not allow yourself to be enticed by $$$

17. WITNESS IN MEDICAL MALPRACTICE CASES WITNESS IN MEDICAL MALPRACTICE CASES Expert witness Expert witness for defendant(s) for defendant(s) for plaintiff(s) for plaintiff(s) Defendant in a malpractice/liability case Defendant in a malpractice/liability case

18. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES An expert witness is reimbursed for expenses and time spent on a case An expert witness is reimbursed for expenses and time spent on a case An expert witness is not paid for his/her testimony An expert witness is not paid for his/her testimony Do not allow yourself to be enticed by $$$. The current malpractice crisis is due in large part to hired guns who will say anything for money Do not allow yourself to be enticed by $$$. The current malpractice crisis is due in large part to hired guns who will say anything for money

19. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Expert witnesses are retained by attorneys representing one of the parties in a case Expert witnesses are retained by attorneys representing one of the parties in a case Offer an opinion based upon review of medical records and/or pathology slides Offer an opinion based upon review of medical records and/or pathology slides Issue a report Issue a report in most cases, a written report will be requested in most cases, a written report will be requested not all counties/states require a written report not all counties/states require a written report

20. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Before issuing a report and opinions: Understand the pertinent issues in the case Understand the pertinent issues in the case discuss the case and the specific issues with the attorneydiscuss the case and the specific issues with the attorney review whatever materials you need to render an opinionreview whatever materials you need to render an opinion review any pertinent literaturereview any pertinent literature Be completely honest and truthful, do not reach Be completely honest and truthful, do not reach Stay within the confines of your area of expertise Stay within the confines of your area of expertise Remember that after issuing a report, you may have to testify under oath at either a deposition or trial Remember that after issuing a report, you may have to testify under oath at either a deposition or trial

21. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Report must be accurate, precise, and pertinent Report must be accurate, precise, and pertinent Make sure that you have the experience and knowledge to back up your opinions Make sure that you have the experience and knowledge to back up your opinions Opinions in medical malpractice cases are given to a reasonable degree of medical certainty i.e. more likely than not, greater than 50% probability Opinions in medical malpractice cases are given to a reasonable degree of medical certainty i.e. more likely than not, greater than 50% probability

22. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES The validity of a report is based on The validity of a report is based on the expertise of the witness the expertise of the witness the ability of the expert to issue an accurate and precise report that addresses pertinent issues in the case the ability of the expert to issue an accurate and precise report that addresses pertinent issues in the case

23. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES In any litigation, you will be aggressively challenged by attorneys representing the opposing parties In any litigation, you will be aggressively challenged by attorneys representing the opposing parties the attorneys will be knowledgeable in the matter at handthe attorneys will be knowledgeable in the matter at hand their experts will have educated and primed themtheir experts will have educated and primed them they will make every effort to discredit you and invalidate your opinionsthey will make every effort to discredit you and invalidate your opinions

25. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Following the issue of expert reports: Case may be dismissed Case may be dismissed Case may be settled Case may be settled Case may proceed Case may proceed discovery depositions (under oath) discovery depositions (under oath) trial (under oath) trial (under oath) It is in these settings that attorneys representing the opposing party/parties will have an opportunity to question you and challenge your opinions

27. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Discovery Deposition Taken under oath Taken under oath Opportunity for attorneys representing opposing parties to question you, establish your opinions and the basis for those opinions, challenge your opinions, and try to set the stage for invalidating your opinions Opportunity for attorneys representing opposing parties to question you, establish your opinions and the basis for those opinions, challenge your opinions, and try to set the stage for invalidating your opinions

29. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Discovery Deposition Do not try to educate opposing attorney(s) Do not try to educate opposing attorney(s) Answer all questions as simply as possible – for most questions try to offer no more than a yes or no or very basic factual answer Answer all questions as simply as possible – for most questions try to offer no more than a yes or no or very basic factual answer Make certain that you understand the question before answering Make certain that you understand the question before answering Think very carefully before answering - the attorney will try to get you to contradict yourself or paint yourself into a corner Think very carefully before answering - the attorney will try to get you to contradict yourself or paint yourself into a corner Refer to your report, medical records, etc. before answering Refer to your report, medical records, etc. before answering Following the deposition, review the deposition transcript very carefully and correct any errors Following the deposition, review the deposition transcript very carefully and correct any errors

30. The attorney who has retained you as an expert will protect you during the deposition; he/she will object to questions when appropriate and will advise you when necessary The attorney who has retained you as an expert will protect you during the deposition; he/she will object to questions when appropriate and will advise you when necessary

31. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Trial Testimony Under oath Under oath Questioned (examined) by the attorney representing the party on whose behalf you are testifying Questioned (examined) by the attorney representing the party on whose behalf you are testifying Goal is to convince the jury of your opinion Goal is to convince the jury of your opinion attorney will establish your credentials attorney will establish your credentials educate the jury; during testimony, address the jury educate the jury; during testimony, address the jury convince the jury convince the jury

33. EXPERT WITNESS IN MEDICAL MALPRACTICE CASES Trial Testimony Questioning (cross examination) by opposing attorney(s) Questioning (cross examination) by opposing attorney(s) - he will aggressively challenge you, your credentials and your opinions your opinions - he will try to invalidate your opinions - he will try to impeach your testimony by showing any inconsistencies inconsistencies review all previous reports and deposition transcripts review all previous reports and deposition transcripts do not contradict yourself do not contradict yourself do not get flustered or angry – stand firm and be convincing do not get flustered or angry – stand firm and be convincing

36. DEFENDANT IN A MEDICAL MALPRACTICE CASE None of us is immune None of us is immune

37. DEFENDANT IN MEDICAL MALPRACTICE CASE The basic process for a defendant in a medical malpractice case is the same as that outlined for an expert witness The basic process for a defendant in a medical malpractice case is the same as that outlined for an expert witness you will not issue a reportyou will not issue a report you will work closely with the attorney who is representing you to:you will work closely with the attorney who is representing you to: understand the case and the issues involved understand the case and the issues involved identify potential experts to testify on your behalf identify potential experts to testify on your behalf you will not get your own opinions – everything is done by the attorney you will not get your own opinions – everything is done by the attorney

38. MEDICAL MALMRACTICE CASE Expert witnesses for both sides will be identified and, when required, reports will be issued Expert witnesses for both sides will be identified and, when required, reports will be issued Discovery depositions Discovery depositions defendant deposed by plaintiffs attorneydefendant deposed by plaintiffs attorney expert witnesses deposed by attorneys representing opposing sidesexpert witnesses deposed by attorneys representing opposing sides

39. MEDICAL MALPRACTICE CASE Following discovery depositions: Following discovery depositions: case dismissedcase dismissed case settledcase settled proceed to trial – cases generally stumble through the crowded legal system slowly, often for years. Take advantage of this to continue working on caseproceed to trial – cases generally stumble through the crowded legal system slowly, often for years. Take advantage of this to continue working on case

40. EXPERT WITNESS IN NON-MEDICAL MALPRACTICE CASES Most often injury or wrongful death cases involving product liability Most often injury or wrongful death cases involving product liability asbestos asbestos pneumoconiosis pneumoconiosis other, e.g. vinyl chloride, solvents, other toxins and carcinogens other, e.g. vinyl chloride, solvents, other toxins and carcinogens

41. EXPERT WITNESS IN PRODUCT LIABILITY CASES Expert witnesses will represent the injured individual or the manufacturer and/or employer Expert witnesses will represent the injured individual or the manufacturer and/or employer Be honest at all times. All reports should be considered as being given under oath, since one may be called to testify under oath after issuing a report Be honest at all times. All reports should be considered as being given under oath, since one may be called to testify under oath after issuing a report Do not serve as an expert if there is any conflict of interest Do not serve as an expert if there is any conflict of interest

42. EXPERT WITNESS IN PRODUCT LIABILITY CASES The process is essentially the same as for medical malpractice cases The process is essentially the same as for medical malpractice cases written report written report sworn testimony sworn testimony deposition deposition trial/hearing trial/hearing

43. EXPERT WITNESS IN PRODUCT LIABILITY CASES These cases are more frequently decided at a hearing rather than jury trial These cases are more frequently decided at a hearing rather than jury trial Discuss the case in detail with the attorney who has retained you Discuss the case in detail with the attorney who has retained you understand the specific issues in the caseunderstand the specific issues in the case important that you are knowledgeable about the medicalimportant that you are knowledgeable about the medical condition/pathology and the product condition/pathology and the product cases are frequently decided based solely on reports; these must thus be detailed with supporting evidence, and specific aspects of the case must be addressedcases are frequently decided based solely on reports; these must thus be detailed with supporting evidence, and specific aspects of the case must be addressed

44. Report must educate and convince judge or panel Report must educate and convince judge or panel No jury trial No jury trial

45. THE PATHOLOGIST AS A WITNESS IN MEDICOLEGAL CASES Remember that you represent either an injured party or a potentially liable party – there is a lot at stake Remember that you represent either an injured party or a potentially liable party – there is a lot at stake Your evidence and opinions most likely have ramifications beyond just a single case Your evidence and opinions most likely have ramifications beyond just a single case You also represent yourself, your profession and your specialty You also represent yourself, your profession and your specialty At all times maintain your professionalism and integrity and maintain the highest ethical standards At all times maintain your professionalism and integrity and maintain the highest ethical standards A knowledgeable, honest, articulate expert will be a busy expert A knowledgeable, honest, articulate expert will be a busy expert