According to surveys performed since the Federal Judicial Center released it's new guidelines for admitting expert testimony, approximately forty one percent of the judges surveyed by the Federal Judicial Center have excluded expert testimony, and many attorneys are making motions in limine to exclude experts (see "Expert Testimony in Federal Civil Trials: A Preliminary Analysis").
These highly comprehensive, and detailed, guidelines have proven to be very influential in almost any type of case that involves:
- Physician negligence
- Medical malpractice issues
- Economic loss caused by personal injury
- Worker's compensation
- DNA and other medical criminal evidence issues
- Product liability issues
and many other issues. (See medical expert witness for some specifics about who might help in the above.)
In areas most important to a medical-legal case, the guidelines identify (and help standardize) the process physicians go through to make a diagnosis. These guidelines document the process physicians use to determine the cause of a medical condition, and detail the many sources of information a doctor uses when diagnosing a patient. They also explain why quantitative epidemiological or toxicological studies are not always available, and what conditions expert testimony must fulfill so it can take the place of a study. These guidelines and conditions address medical procedures with respect to the medical condition of a specific patient, and require interpretation by an expert. This is where the LNC, acting as an expert witness consultant, can be invaluable.
A checklist is provided to measure the usefulness of a medical expert's testimony, as it relates to a specific case. This is where a knowledgeable certified legal nurse consultant (LNC) can interpret the medical data of a specific case and then use it to select the best expert witness, and strengthen the "reliability" of an expert's testimony. On the other side, this same system can be used very effectively to undermine the credibility (reliability) of any witness by using this standard "checklist" to contradict that witness!
Avoid Having Expert Testimony Excluded
Two facts stand out when one considers the large increase in the amount of expert testimony that is being excluded nowadays. First, the testimony must be very focused and specifically relevant to the case being argued to be included. This requires the ability to link medical evidence to the specifics of the case. Second, if testimony passes all tests and is not excluded, the credibility and power of that testimony is enhanced dramatically. The expert testimony is what wins the case.
The biggest problem overall with the use of medical expert witness testimony, according to the judges polled, is the lack of objectivity from such witnesses. They feel many expert witnesses simply become paid advocates for the party that hires them. This lack of objectivity, reinforced by lack of standards for establishing how relevant specific testimony is to a specific case, is what makes many judges question the "reliability" of expert testimony.
The need for better preparation in the form of well aimed questions, better coaching of expert witnesses, and more focused and objective testimony, is exactly what a qualified CLNC can do well as an "expert witness consultant". This becomes even more apparent when the fact that 40% of all medical experts are in the medical and health professions. A CLNC acting as a expert witness management consultant is instrumental in the
- Selection of Qualified Physician Experts
- Selection of Qualified Nursing Experts
- Scheduling of an Independent Medical Exam (IME)
that will benefit your case to the maximum extent.
How an Expert Witness Consultant Helps Win!
The recent Federal Judiciary Center guidelines and related studies has had a significant impact on the "reliability" of a "general practitioner" type of expert witness. This type of testimony is no longer acceptable in a case with any complexity. Such testimony will be almost ineffective, if it is admitted as evidence at all.
To be effective, a medical expert witness must demonstrate to the court that he or she has knowledge directly applicable to the specifics of the case at hand. Further, the theories or findings based on that knowledge must be presented in a way specific to the case at hand. Engaging a qualified LNC can be very helpful in relating case specific information to the expert's knowledge, and then identifying the questions the expert must address in the courtroom to best illustrate the arguments of your client's case.
Acting as an expert medical witness consultant, a LNC can help your case tremendously by first reviewing the medical history involved to identify just what information is needed from the expert witness, and then translating this need into a series of relevant questions. This is extremely beneficial in areas where Standards of Care (SOC), epidemiological/toxicological studies, or other standards even exist.
In summary, a qualified legal nurse consultant is invaluable in identifying the mistakes made in the past medical treatment of a client, locating an expert witness with truly pertinent knowledge, and strengthening the expert's testimony. NJMRR offers the qualified LNCs with the medical and educational expertise needed. Visit NJMRR for more information. If you have questions about how an expert witness might help your case, contact NJMRR for a free 15 minute consultation! (see below)
Future issues of LNC UpDate will examine how to select an LNC for other situations, so bookmark this page now!
How to Reach NJMRR
Telephone: 201-664-0560
Fax: 201-664-5951
Email:
info@lnc-legal-nurse-consultants.com
