Medical Malpractice

Considering an expert: liability opinions first, then the incremental damages question

The considering stage decides sequence. Vocational, life care and economic opinions in a malpractice matter depend on a causation opinion that separates the injury attributable to the alleged breach from the baseline condition, so counsel settles the standard of care and causation positions before scoping the damages experts. KWVRS offers a physician-led standard of care review as a distinct engagement, conducted by a board-certified physician on the roster, and it is retained separately from the damages work; a damages expert who is briefed on the causation opinion rather than asked to supply it stays inside the scope a court expects.

With the liability positions stated, counsel decides which damages categories are actually in play. A surgical injury that ended a career raises earning capacity; a birth injury raises pediatric life care planning and a worklife projected from demographic norms; a delayed diagnosis may raise only the incremental care that the delay added. Each category implies a different expert, and the decision at this stage is which ones the case needs.

Retaining: a shared but-for baseline across every expert

Retention in a malpractice case fixes the but-for baseline that every damages expert will use: the care, function and work the person would have had absent the alleged breach. The engagement letters should state that baseline, identify the causation opinion the experts are to rely on, and set a coordination protocol so that the vocational expert, the life care planner and the economist do not adopt different versions of it. KWVRS can staff the three damages disciplines from one roster and, when engaged for more than one, sets up that protocol at the outset.

The records package is unusually broad: the complete pre-event and post-event medical record, imaging and pathology, the standard of care and causation reports, any treating depositions, and the employment, education and earnings history. The pre-event record matters as much as the post-event record, because the baseline is built from it.

Preparing for deposition: consistency with the causation opinion

The deposition of a damages expert in a malpractice case tests whether the opinion is consistent with the causation opinion it rests on and whether the incremental loss was isolated with discipline. Preparation walks the expert through the baseline assumptions, the source of each, and the method by which baseline care and earnings were separated from incremental care and earnings. Pre-existing conditions receive particular attention; the expert should be able to show how each one was accounted for and what the opinion would be if the causation finding were narrower.

Counsel should ensure the expert has read the causation expert's report and, where available, deposition, so that no answer at the damages deposition contradicts the liability record.

Trial: keeping baseline and incremental harm distinct for the jury

At trial the damages witnesses follow the liability witnesses and must not blur the line those witnesses drew. The testimony presents two futures side by side, the baseline and the actual, and the difference between them, with demonstratives that make the differential visible in care, in work and in dollars. Where the physician who conducted the standard of care review also testifies, counsel sequences that testimony first. The damages expert's account must be consistent with the deposition and with the causation testimony the jury has already heard, and preparation ends with a reconciliation of the three.