In Louisiana, the law requires that virtually all medical malpractice cases must be proven with medical expert testimony. The only exceptions are for those rare cases involving sponges or instruments which have been left inside of patients.
Although there is certainly a large market of out of town "hired guns" to testify, these type of experts usually do far more harm than good to the case. Thus, it is essential that an experience medical malpractice attorney with access to top, well-credentialed experts be retained.
Generally, the type of expert to be retained must be a physician who practices in the same specialty as the accused doctor. Since most physicians will not testify against other physicians in the same state in which they practice, most testifying experts are from out of state.
When the case proceeds to trial, most experienced medical malpractice attorneys will tell you that it is absolutely essential that the medical expert witness appear live at trial to render his testimony. This is because it is hard to explain the difficult medical concepts to a jury without using drawings and charts to illustrate his explanations. Also, if a highly credentialed physician cares enough about the case to travel from out of state to testify, then the jury will be swayed that it must be a legitimate case
However, wanting the medical expert to appear live at trial and getting him there on the appointed date are two different things. Top experts lead extraordinarily busy schedules. To come to trial, the expert will likely have to cancel or postpone many scheduled patients. This will cost him a lot of money. Also, there is no guarantee that he will be able to fly in and fly out in one day to render his testimony.
During trial, the amount of time it takes to pick a jury and examine all of the witnesses which need to testify before your expert takes the stand cannot be predicted accurately. Thus, you may tell your expert to clear his schedule for a Wednesday, and may not be ready for him to testify until Friday. Most experts know this and will not commit to appear for more than one day because of the lost time and money involved.
The procedural rules do allow a party to present evidence by deposition or video taped testimony, thereby allieviating this problem, but this is much less effective to present to a jury than a live person. Jurors quickly get bored with depositions that are read to them and video testimony precludes the effective use of drawings and charts to illustrate the testimony.
The problems in getting the medical expert witness to trial require the expenditure of tremendous sums of money to compensate the witness for the substantial lost time. They also present challenges to even the most experienced medical malpractice lawyer to manage the timing of the testimony so its impact on the jury can be maximized.