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Does the Defense Give up When the First Medical Expert Thinks the Case is Indefensible

Mar 15, 2015 | Medical Malpractice

In a medical malpractice case, the defense hires a medical expert, and this expert gives a negative review, meaning there is liability and responsibility. Then in such a situation will the defense give up?

The Defense will not Give Up Easily

The defense is obviously not going to give up. Instead, they are going to find another medical expert, who is going to review the case again, with the hope and expectation that this new expert will have a different opinion than the first one. They are not going to stop until they are able to find a medical expert who comes back and says that he has gone through the medical records and he feels the case is defensive and that there is something there that he can work with.

Once the defense manages to attain a medical expert to confirm that the case is defensive, then they will be ready for the trial and will not want to negotiate a settlement. Just because the defense on their first round has a medical expert that tells them that the case is not defensible and they need to settle this case, the defense is not going to throw their hands up in the air and relinquish their interest in this case.

Instead, they are going to keep locating medical experts, until they find one who says that the case is defensible. Another avenue they can take is if they do come to realize that they do have a non-defensible case, perhaps negotiating a settlement would be the prudent course of action.

Defense Might Rethink their Strategy

If many medical experts have found the case non-defensible and the defense eventually finds an expert, who thinks the case is defensible, then they need to make a critical decision. The defense will have to check and confirm the credibility of this expert since he is expressing an opinion that is opposite than those of other experts.

Secondly, the plaintiff’s attorney will also be cross-examining this expert at trial. If this expert’s arguments are weak, or the plaintiff’s lawyer is able to damage his credibility, then it is not going to be good for the defendant.

The defense is obviously not going to stop this pursuit, if the first medical expert says the case is not defensible. They will keep trying, until they find an expert who is expressing opinions in favor of the defense. However, when many experts have not found anything favorable to say regarding the case, and they have all considered the case indefensible, the defense will be more cautious and not so adamant. They will be forced to see the writing on the wall.

Scrutinization

Even if they find an expert eventually, who thinks the case is defensible, the defense will have to thoroughly review the expert’s credentials, and make sure his opinions can hold up in court, under the intense cross-examination of the plaintiff’s lawyer.

If many experts think the case is indefensible, then obviously the plaintiff has a strong case. The defense might have to rethink their strategies and even think of negotiating a settlement. It will mainly depend on the strength of defensive arguments of the last medical expert.