Cross examination of the medical expert witness either during deposition or trial is a crucial step in posturing the case for settlement or flat out victory. Many doctors who serve as medical expert witnesses are not virgins at this. They have developed a skill set to handle cross examination. The first thing counsel has to do to defeat this, after thoroughly becoming prepared, of course, is to recognize such an expert witness before the examination starts.

As was covered in the first paper on professional expert witnesses you must take their deposition a certain way. This technique is probably best explained in comparison to taking the deposition of a medical expert witness who is relatively inexperienced in the process.

A common game played in medical malpractice defense is the reference to odds and probabilities. The usual scenario is where the claim is made that a particularly “bad” event occurs so infrequently that the doctor can’t be blamed for it. It’s referred to as simply one of those things that can just happen. Many doctors and lawyers get caught up in this and fail to properly deal with it. Actually, it is the exact wrong thing to say and there is a full proof method of attacking it. 

The possibility of medical malpractice is usually investigated after the fact by searching for wrongful acts on the part of the doctor or hospital. Many times wrongful conduct in the practice of medicine is not seen by something that was actually done wrong in a positive sense but by something that wasn’t done right in a negative sense. Failure to investigate negative acts, i.e. acts of omission, is a big mistake and will cause many a meritorious case of medical malpractice to be missed. 

One of the most important parts of prosecuting a medical malpractice case is taking the discovery deposition of the medical expert for the adversary. This is so important that it should be done whether or not the Rules require it and whether or not payment to get it is required. 

In a medical malpractice case the medical evidence is primarily contained in the medical records, the medical condition of the patient and the memory of the family. Initial analysis for merit in medical malpractice cases is often useful to make a quick decision on what might have occurred. Sometimes the Statute of Limitations is drawing near and a decision to file the case or not must be made. In a medical malpractice case there must be a deviation from or breach of the standard of care which proximately caused the damages.