As nuclear verdicts skyrocket, locating the right medical case review experts is an increasingly important factor in medical professional liability (MPL) cases. With many experts available, you want to ensure that you find an expert with the right combination of credibility and experience.
There are a number of key factors that can make or break this search, including:
- Expert needs and expectations
- Geographical region
- Type of review
- Credentials
- Experience
Medical expert reviews have long served as an effective way to capture nique insight into a potential harm event that is otherwise not easily discernable to the nonmedical claims professional. Requesting reviews before litigation is a proactive approach that often leads to quicker claim resolution.
In addition, it has the potential for important clinical care improvements outside of the potentially punitive lawsuits. Pre-litigation reviews can serve as an invaluable contributor to better healthcare when conducted in an effective manner.
Clarify needs and expectations
Prior to beginning your search for an expert, it’s important to identify and define your expert need requirements up front. To be better prepared, consider the answers to these questions:
- Is the expert you are seeking reviewing standard of care or causation? Or both?
- What specialty and/or sub-specialty is needed? Is it aligned with the insured?
- What geographic region would be most beneficial for the review? Can you be flexible as to the region or location of your expert?
- What setting is the insured in? Trauma center? Rural hospital? Clinic?
- Does the expert require more than one area of expertise/board certification?
- How many years of experience should the expert have?
- Are any of these criterion negotiable?
Once you know the answers to these questions and have set clear expectations around your search, you can move to implement your search. To use your time and the time of potential experts most effectively, consider different angles to these questions, as it may not be possible to find the perfect expert who meets all of your needs.
Expert location—does it matter?
While it is usually preferable to use an expert in the same state or region as the insured when receiving a review, sometimes it is just not possible. If you are unable to secure an expert in the same geographic region, there are a few guidelines to follow to ensure the review is assessed with the appropriate lens.
It may come as a surprise, but regional care idiosyncrasies often exist even just a few states away. Because of this, it is wise to have a conversation with the expert on the standard of care and causation among distinct parts of the U.S. For example, if you have a Level 1 trauma emergency physician opine to a case involving a physician in a rural setting, it can be a challenge for the trauma doctor to be inherently aware of the resources available to the doctor in the rural setting.
However, if those expectations are set from the beginning, you can be assured that your expert is aware of what was or was not available to your insured. This becomes particularly
important to consider when the expert you seek is extremely rare. Remember, if you are unable
to locate an expert in the same setting or region, it is your responsibility to ensure the he
or she has a clear understanding of the environment in which the case takes place.
And finally, be clear about the various state statutes for expert testimony. Some states have different requirements for expert testimony. Getting caught off guard with unforeseen
regulations can create additional work for both sides.1
Searching for your expert
Deciding on the best method for identifying suitable experts for your case depends on your specific needs. While physician referrals can save a lot of time, do not stop there. Relying on physicians to reach out to other colleagues is not always effective or timely so it is prudent to
have alternative processes you can activate when searching for the
ideal expert.
There are several ways to achieve this, so utilize more than one that works for you:
- Recruitment ads
- Scholarly article search
- Academic search
- Hospital system search
- Expert databases
Once you have identified several potential experts, before reaching out it is wise to perform a quick background check to validate that there are no pending or historical actions against them from the Board of Medicine. Some of these actions, whether pending or historical, can be significant, especially if they speak to competence or standard of care deviations.
There is nothing more frustrating than finding the “perfect” expert only to find they have serious accusations about their care. There are reliable sources such as the Federation of State Medical Boards website that can provide detail as to whether you should even reach out.
Checking out ratings for a specific expert on Healthgrades and Centers for Medicaid and Medicare Services sites is also a quick and easy method worth pursuing. These sources have invaluable, easy-to-find information that can help you select a well-qualified expert.
Once you have identified a recruitment method(s) to secure an expert, you should have a process in place that ensures the potential new expert is prepared to be a reliable witness or expert case reviewer, depending on your need. Developing a set of key points to cover when
talking with an expert is crucial for an expert to have a clear understanding of what is expected from them throughout the process.
Standard of care vs. causation reviews
When reviewing cases, medical experts will have their own practices in mind whereby they may be practicing in fear of litigation, thus raising the standard of care. You may not be able to change an expert’s mind on their own practice preferences.
However, you can achieve fair and empathetic case reviews by ensuring that they understand the current standard of care and apply those standards when reviewing cases. The definition of causation should also be discussed with an expert. Be sure to articulate key differences between the expert’s understanding of causation and your understanding of the term.
Expert reviewer’s experience
As you engage with potential experts, it is also important to ask them what types of cases they
are not qualified to offer opinions on or discuss. Not all experts of the same board certification
always care for the same population. Don’t ignore this important factor.
And finally, alleviate any fears your expert may be feeling. All too often in the medical legal setting we forget that experts bring some trepidation into this situation. They may be fearful of “throwing their colleagues under the bus,” they may be new to this work; or they may over prepare or under prepare.
That’s why it is critical to be clear in your expectations. Talk with the expert about how much time you anticipate the process taking, be clear in your questions and ensure that your questions are geared towards the expert’s specialty.
Final thoughts
Putting thought into this process up front and sticking to a method that works for you tends to create an effective and efficient plan.
Understand that most experts believe that being an expert medical reviewer means that
they could be subject to a subpoena at any time. You would be surprised how often that fear
comes up, which prevents many from pursuing this kind of work. If you can approach this process with a focus on making healthcare better for all and give potential experts information about how the legal system works, you will be surprised at how far this gets you.
By setting and maintaining clear expectations, deciding what is negotiable, and opening your search up to a wide variety of techniques, you’ll increase your chances of finding the most suitable expert witnesses for your MPL cases.
References
1. “Find a Doctor,” Federation of State Medical Boards, June 23, 2021, https://www.fsmb.org.