Huff Powell Bailey's Michael Frankson questions Dr. Daniel Brotman, M.D., on whether a hospitalist met the standard of care for a patient in ICU. Watch the trial. | Watch the full testimony as part of CVN's Playlists on standard-of-care testimony in med mal cases.
Credibility is critical for an expert’s trial testimony. An expert who appears to be a witness-for-hire solely for one side of the courtroom or another can fatally undermine any testimony they provide on the issues. Meanwhile, an expert whose delivery is poor can leave the jury uncertain of how much weight to give their conclusions. In a recent medical malpractice trial over the death of a hospital patient, Michael Frankson’s questioning of a key expert witness bolstered that expert’s credibility, while the expert’s overall delivery aimed to connect with the jury and leave no doubt as to his conclusions, ultimately clearing the defendant physician.
A Georgia man died from septic shock 15 days after undergoing non-emergency surgery to remove a mass in his intestine. The defendant hospitalist was part of a team of specialists treating the man in the intensive care unit. The man’s family contended the hospitalist was negligent in failing to follow up on tell-tale signs of septic infection, or consult with other specialists on the treatment team about those signs. The hospitalist, the only defendant at trial, contended that his role in the ICU was merely to follow records with an eye toward the patient’s eventual move back to the general ward. He also maintained that it was the duty of others on the team to coordinate treatment and follow up on any symptoms of internal infection.
Dr. Daniel Brotman, M.D., a professor of medicine at Johns Hopkins University, testified for the defense as to whether the hospitalist met the standard of care in his treatment. Before walking through the issues in the case, however, Frankson, of Huff Powell Bailey, questioned Brotman as to his history in the courtroom.
After Brotman told jurors he had been reviewing cases for both plaintiffs and defendants for 25 years, Frankson asked if the expert ever expressed concerns to defense lawyers about whether their clients met the standard of care.
“About half the time I’m consulted by the defense, I tell them that there’s a problem with their case,” Brotman said, before highlighting such a situation with a recent defense case he reviewed. “I said their client deviated from the standard of care, and they were going to have to settle.”
Importantly, Frankson followed up on this answer, asking if Brotman had ever had a similar conversation with one of Frankson’s associates on one of his cases.
“Yes, the last one I think,” Brotman responded, matter-of-factly.
Frankson then aimed to seal the witness’s credibility as to his upcoming conclusions by asking “If you believe that [the defendant hospitalist] was negligent in any way, doctor, would you have just told us that?”
The expert had one word. “Absolutely,” he said, without hesitation.
This back-and-forth was powerful in aiming to show jurors the expert would "call it as he saw it," without bias toward one side or another. And it painted the expert as a witness whose testimony jurors could trust when they deliberated. In cases such as this, that can come down to a "battle of the experts," that credibility is crucial.
Beyond that, the expert’s presentation aimed to connect with the jury. He swiveled his chair to face the jurors, so that he was always addressing them, turning his head to listen to Frankson’s questions before turning back to the jury. His answers were straightforward and confident, as Frankson walked him through the typical expectations of a hospitalist in the defendant’s circumstances before applying that to the defendant’s decisions.
When Frankson concluded by asking Brotman whether he saw any way in which the defendant fell below the standard of care, the witness’s answer was unequivocal.
“Not even close,” he said.
With that testimony as a key part of the defense case, jurors ultimately cleared the hospitalist, who was the only defendant at trial.
Brotman’s testimony in that trial is part of our CVN Playlist Standard-of-Care Direct Testimony in Medical Malpractice Trials.” In it, you can watch the techniques that top attorneys use to successfully question their experts on standard of care issues in a range of med mal cases.
It’s available to CVN subscribers as part of our playlist library.
Email Arlin Crisco at acrisco@cvn.com.
Related information
Not a subscriber?
Learn how you can access an unrivaled trial video library.
