Legal theory

Expert witnesses play an important role in any malpractice proceeding. Many cases are won or lost on the basis of expert testimony. In this case, the expert stated that referral to a nephrologist would have resulted in earlier treatment and an improved prognosis for Ms. Y. This assertion was the linchpin of the plaintiff’s claim that Dr. T had been negligent.

The defense lawyer tried to discredit the expert by objecting to the binder he carried. It was unfair, said the attorney, because the expert did not say anything about the studies during the pretrial discovery process, thereby blindsiding the defense. Even worse, the lawyer continued, the fact that the expert brought the binder to the stand showed that he needed a crutch. After the judge’s ruling, however, the expert’s own knowledge and experience allowed him to testify effectively—even without his impressive prop.

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Protecting yourself

Dr. T could have avoided this lawsuit had he done one of two things: run lab tests to check for abnormal kidney function, or referred Ms. Y to a nephrologist once it was clear that the hematuria was not resolving. The old adage about the danger of assuming is also obviously in play. Had Dr. T made a simple phone call to check whether Dr. A had had the blood tests run, he could have saved himself—and his patient—a great deal of pain.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.