testify against another doctor at trial is difficult, to put it lightly. Sometimes called the “conspiracy of silence” or the “white coat code of silence”, a pervasive issue exists in which providers are hesitant or outright refuse to report or testify on their peers’ errors, unethical actions or other professional missteps. Many of your potential clients will tell you it was a treating provider that noted the malpractice or recommended consulting with a lawyer. Be forewarned: do not expect those treating providers to (willingly) testify to the same at trial. A consulting expert, on the other hand, is retained to assist you in understanding the medical issues of the case, developing legal strategies and preparing for trial. At the beginning of your case, an “off the record” consulting expert can provide critical support to you and your team without disclosure. Their work is generally protected by the attorney-client privilege and is not disclosed to the opposing party unless the consulting expert is later designated as a testifying expert (and, in state court, testifies). At least at the outset of your case, a consulting expert is protected by privilege, meaning you can learn the good, bad and ugly of your case without potentially harmful disclosure. A local practitioner is also more likely to give an opinion if they are consulting rather than testifying, helpful for gaining familiarity with local community standards and practices. That said, in the majority of medical malpractice cases, the defense will file something I know colloquially as a Teidemann motion, essentially a Rule 47 Summary Judgment motion. To defeat the motion, a supporting responsive declaration must be filed averring the following: plaintiff contacted a licensed medical practitioner qualified to testify on the material issues in the case, the medical practitioner has been retained as an expert, and the expert is available and willing to testify to admissible facts and opinions that the defendant(s) deviated from the standard of reasonable medical care and that such negligence was the legal cause of the injuries alleged in the complaint. Because we protect our experts’ identity in state court, the attorney files the declaration but, apart from that, so long as you have the testifying expert, it will be the shortest summary judgment response you ever draft. In my cases, defense counsel has always withdrawn the motion once I file our response. The motion is largely a strategic tool used by the defense to confirm you have a testifying expert and, by this point in your case, you should. A consulting expert unwilling to testify will not defeat this motion. The More You Know. Have I lost you? I understand. It can feel overwhelming. You know the defendant(s) will have qualified, local experts and/ or experts touting pedigree and prestige. It will be a battle and an uphill one at that. An expert is absolutely essential and a canary in the mine to help you make an informed decision. A well-considered and expert-influenced assessment in the beginning of your case is not a waste of time or money. Your client and their family deserve to know sooner rather than later whether there is a path forward with your firm and the meaningful attention you provide will be valuable to them, whatever you decide. 1. 2009 Study, Twenty Years of Evidence on the Outcomes of Malpractice Claims. https://pmc.ncbi.nlm.nih.gov/articles/PMC2628515/ Author does not necessarily support or verify these findings, particularly for Oregon cases. 53 Trial Lawyer | Winter 2025
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