Assessing Healthcare Equity

The Medical Expert Witness Process:

How Lawyers and Physicians Work Together

The collaborative relationship between lawyers and physicians allows both these professionals to work together on personal injury cases to help clients and patients. Physicians and other medical professionals step in as medical expert witnesses for attorneys and are valuable resources in their legal cases.

The Lawyer’s Role

Many personal injury cases use expert witnesses to explain complex scientific and medical concepts to the jury. These expert witnesses have a wealth of knowledge on these subject matters due to their years of education and experience. Those who want to be a medical expert witness must meet the requirements laid out in Florida

Statute 766.202(6) in order to legally qualify. According to the statute, medical expert witnesses need to practice regularly in their field, have a professional degree from a college or university and meet the numerous requirements in Florida Statute 766.102(5). “An expert witness is an individual engaged in the practice of a profession who holds a professional degree from a university or college and has special training and experience, or one who possesses special knowledge or skill about the subject on which he or she is called to testify,” stated Ervin A. Gonzalez, a board-certified civil trial lawyer in Florida, in an article he prepared on expert witnesses. He pointed out that experts have been called to testify on issues involving accounting, business, agriculture, medicine science, mechanics, economics, pesticides, DNA and more. Yet, when a lawyer selects an expert medical witness there are steps involved to pick the correct type of medical professional to assist in building their client’s case. “The state of Florida has used two different standards for expert witness testimony. The Frye standard allows medical expert witnesses to give their opinions if the method they use to reach their conclusions are broadly accepted in the scientific community. This standard keeps judges from overstepping their boundaries in determining who can testify. Experts testify based on their education, training, knowledge and skill. However, the stricter Daubert standard requires a trial court to determine whether certain evidence is relevant or reliable before a jury hears it,” stated Thomas S. Edwards, Jr. senior partner at Edwards & Ragatz, P.A. in Jacksonville and Jennie R. Edwards in an article from the Florida Bar Journal.

According to The Florida Bar Journal, in 2019 the Florida Supreme Court made it evident that Daubert should be the standard for allowing expert witness testimony in the state of Florida, but this wasn’t always the case. In 2013, the Florida Legislature revised the statutes to use the Daubert standard. Then in 2017, the Florida Supreme Court rejected Daubert and upheld Frye as the standard

for admission of expert testimony. In 2018, the legislature’s amendment was found to be an unconstitutional violation of the court’s oversight of the procedural rules of evidence. The court subsequently went back to using Daubert. When lawyers are looking for the proper medical expert witness, the American Bar Association gives recommendations on checking a medical professional’s background, references and asking questions to get the best possible expert witness. “Always review the expert vitae thoroughly. Is the expert’s schooling relevant? Do you have a doctor that is only a doctor of osteopathy and not medicine? Does the expert witness maintain current professional memberships? Ask does/ did your doctor have hospital privileges anywhere? Does the expert have to meet any specific locality rules before being offered to the court?” suggests the American Bar Association. Lawyers throughout the area work with medical experts when fighting for their client who could have been injured in a multitude of ways, whether from an auto accident, product defect or slip and fall, medical expert witnesses may be retained by a lawyer to provide the knowledge required to help a client have a successful case.

Building a solid path from start to finish including securing the investigation of the accident to hiring an attorney that can bring an expert medical witness into the accident case is a process that an attorney can assist with. “When someone injured in a car crash calls our firm, we provide a complete and free consultation immediately on the first call, educating the potential client on whether they have a case, what to expect, and the first steps they need to take. Once the client retains us, we immediately get started, beginning with investigating the accident and available injury insurance,” said Amanda Baggett, personal injury attorney at Baggett Law in Jacksonville. “Physician witnesses come in two forms,” said Baggett. “Those who have treated our clients for their injuries that will testify to the care provided and those who provide special expert testimony after reviewing the necessary medical records and examining our clients. In almost all cases, physicians provide important expert medical opinions on the physical trauma experienced as a result of the car accident and anticipated future medical care and costs.” Often, a law firm has specific doctors they work with that do expert witness testimony for their clients with the understanding that they will give proper testimony to assist the client’s case. “We have preferred medical experts whose work we know to be credible and comprehensive, but are always open to using others,” said Baggett.

“Lawyers throughout the area work with medical experts when fighting for their client who could have been injured in a multitude of ways.”

The Medical Professional’s Role

Many physicians are now lending their expertise to lawyers when it comes to auto and personal injury cases. When Universal Neurological Care founder Syed Asad, MD started focusing on brain injury at his practice, that led him to working on personal injury cases with that component. “I got my brain injury certification in 2018 and then we started seeing a lot of injury cases coming in, and these were particularly cases where they also had brain injury as part of their issue,” said Dr. Asad, who has close to 20 years of experience as an expert in neurological medicine and is board certified in brain injury medicine by the American Board of Psychiatry and Neurology. “Then we learned that a lot of law firms around town had started recognizing our work in brain injury and had started recommending us to their clients. Some of them would reach out to us personally about their clients.” Asad has worked with most of the major law firms in Northeast Florida, including plaintiff attorneys, as well as defense attorneys. “If there’s a medico-legal aspect to it and they’re interested in having us evaluate their clients, we’re happy to do that,” he said. Asad has been called to trial a multitude of times as an expert witness,