What Attorneys Should Ask Their Medical Experts (But Almost Never Do)

When many attorneys send medical records to me as a medical expert, the most common question I get asked without a doubt is: "Do I have a case here?"

That's not specific enough to get a useful answer. The renowned American inventor, Charles Kettering, famously said that “a problem well stated is a problem half solved.” This is true for prospective medical malpractice cases as it is for engineering.  

Asking a broad “case or not” question to an expert is not specific enough to get a useful answer in most cases, and frankly, it puts the expert in an awkward position — asked to render a binary verdict on a fact pattern that deserves a more disciplined analysis. Good experts don't want to be rubber stamps. The question is whether the engagement is structured to prevent it.

Here are the five questions that separate a real screening from a rubber stamp:

1. Was there a clear deviation from the accepted standard of care — or just a bad outcome?

These are not the same thing, and conflating them is where weak cases begin. Bad outcomes happen in good medicine. The question is whether the provider's conduct fell below what a reasonably competent clinician would have done under the same circumstances — not whether the outcome was tragic.

2. Can causation be drawn directly from the deviation to the injury?

Or are there confounding factors that a defense expert will exploit? Causation is often the more fragile leg of the claim. A defensible deviation argument that can't survive a causation challenge is not a case — it's a partial opinion. Both need to hold.

3. How defensible is the provider's documentation?

Strong charting can kill even valid claims because it creates a narrative the jury trusts. A thorough, organized record signals a thoughtful clinician, regardless of whether the underlying decisions were correct. Documentation quality is an independent variable in case strength that deserves its own paragraph in any screening opinion.

4. Is there a published guideline or standard that supports the plaintiff's theory of the case?

Or does it rest entirely on expert opinion? Published standards from recognized specialty societies give the plaintiff's theory an anchor point that is harder to attack than a lone expert's view. When the standard of care lives only inside one expert's head, a credentialed defense witness with the same credentials can neutralize it entirely. Most attorneys wouldn’t bet their case on likeability and credibility of their experts against the other side’s, but that’s exactly what happens when your expert’s opinion is bolstered only by their “in my experience” responses. 

5. Would a jury understand the harm without needing a medical degree?

Jury comprehension is an underrated factor in case selection. Complex pathophysiology is not inherently disqualifying, but it raises the stakes on expert communication and increases the risk of a jury that simply doesn't follow the argument. The cases that move juries are the ones where the wrong is legible — where you can say in plain language what should have happened and what didn't.

Most screening reviews skip at least two of these. That's how weak cases slip through and strong ones get missed. The expert isn't always at fault — sometimes the ask just isn't specific enough to surface the right analysis.

Experitas exists to change that dynamic. Our medical experts are engaged to provide structured, candid opinions — the kind that give attorneys real information at the point in the process when it still matters.