This proposal was a resolution to be presented at the Pennsylvania Medical Society Business Meeting in October, at Hershey, PA. It was endorsed by the Board of Trustees of the Montgomery County Medical Society.
It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).
So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).
All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.
If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.
A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/