Pinning Down the Medical Expert

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Willoughby Law Firm

Berkeley, CA

The "failure to diagnose" case is always difficult to litigate, partly because the underlying disease or condition is not caused by the doctor. The claim centers on either the exacerbation of an undiagnosed condition or a secondary injury resulting from an undiagnosed condition. It is the plaintiff's burden to show, more likely than not, that the physician fell beneath the standard of care by failing to timely recognize a dangerous health condition which proximately caused a separate identifiable injury. Not an easy task. This article focuses on a systematic method of pinning down the defense medical expert at deposition in failure to diagnose cases.


Establishing how physicians go about diagnosing patient's medical conditions is essential to failure to diagnose cases. Once you establish the steps required for medical diagnosis through the defense expert, you can apply that formula to the facts of your case for the greatest impact. This works in almost every kind of failure to diagnose case. As an illustration, this is an excerpt from a recent deposition I took of a defense rheumatologist expert in a case that involved the failure to diagnose Systemic Lupus Erythematosus (SLE) leading to kidney failure:

Q: Doctor, let's talk about the basic rules of differential diagnosis.

Q: Is the first step in creating a differential diagnosis the process of gathering information about the patient? All the signs, symptoms, risk factors, past medical/surgical/family history and test/lab results?

A: Yes.

Q: Why is that important?

A: Because as physicians we need to have all available information so that we can make decisions on how to treat the patient.

Q: Is the next step the process of creating a list of all reasonably possible causes?

A: We tend to list only the most likely causes.

Q: But it would be beneath the standard of care for a physician to ignore any causes that are reasonably possible, right?

A: That is correct.

Q: Is the next step the process of ruling-out the reasonably possible causes.

A: Yes.

Q: And that is done by examinations, performing tests, close follow up to see how symptoms change, etc…

A: Yes.

Q: Doctor, it would be beneath the standard of care for a physician to make a diagnosis and then ignore signs, symptoms and test results that might point to a different or new cause for the patient's condition?

A: Of course.

Q: Now, when a possible cause on the differential list presents a risk of serious harm or death to the patient, the standard of care requires the doctor to take steps to rule out that dangerous potential cause soon enough to prevent the serious harm or death.

A: I would agree with that.

Q: Because a delay in attempting to rule out a serious or life threatening cause of a patient's symptoms creates unreasonable risk to the patient.

A: Yes.

Q: And that is beneath the standard of care for any physician.

A: I would say so.

Not all medical experts are going to answer questions this cooperatively, but they will generally all agree that diagnosing a patient requires gathering information, coming up with a list of possible causes and doing testing or other studies to rule out the possible causes for the patient's medical condition, or perhaps coming up with new ones. And if the doctor knows there is a reasonable possibility that something on the list poses a risk of immediate harm to the patient, the doctor must try to rule that out and/or treat it without delay. (For further discussion on differential diagnosis, see David Ball on Damages.)


After you have established the formula for diagnosing patients, use the defense expert to list out all the signs and symptoms of the medical condition that the defendant doctor failed to diagnose. Do your homework with your own expert before taking the defense expert witness deposition and read up on the medical literature on the symptoms relevant to your case. Be prepared to ask about each symptom your client had that may be related to the undiagnosed condition and ask the defense expert if the standard of care requires a reasonably trained and prudent doctor to know that the symptoms are relevant to plaintiff's undiagnosed medical condition. It may further be helpful to ask the defense expert if the governing body of his medical specialty has promulgated any criteria for the diagnoses of the condition or if there is any literature that sets forth the criteria that is generally accepted amongst physicians in the expert's medical specialty. You will be surprised how often this is the case. After you have established that the undiagnosed condition is or should have been on the differential diagnosis list, get the defense expert to elaborate on the harms that could result with a delay or failure to treat plaintiff's undiagnosed condition. Focus on the types of harms that actually materialized in your case. For example, this is an excerpt from the same failure to diagnose SLE case:

Q: Doctor, you would agree with me that there is a relationship between untreated SLE and kidney damage?

A: Yes

Q: If left untreated, SLE can cause injury to the glomeruli in the kidneys, correct?

A: Yes.

Q: And that can lead to the type of progressive kidney damage that Mr.[Plaintiff] has been experiencing over the last 2 years.

A: It can.

Q: In fact, 60% of all untreated systemic lupus will result in some damage to the kidneys, isn't that right?

A: I don't know if it is that high.

Q: But there is a strong relationship between untreated systemic lupus and kidney disease?

A: Yes.

Q: And you would expect that a reasonably trained rheumatologist, such as Dr. [Defendant] to know that, correct?

A: Yes

Q: And if Dr. Smith didn't know the relationship between SLE and kidney damage, that would be beneath the standard of care, right?

A: All rheumatologists should know that, so yes.


Doctors have a myriad of tests and studies available to them for diagnostic purposes. These include everything from checking your temperature to performing a CT guided needle biopsy. Each test or study provides the doctor with bits of information that, taken either individually or as a whole, help the doctor determine the proper diagnosis. During the defense expert deposition, identify each test that was performed on plaintiff and what information was obtained or could be obtained. Be prepared to challenge the expert about the sensitivity of each test for diagnosing plaintiff's undiagnosed condition. Ask if the test result increases or decreases the likelihood that the plaintiff had the undiagnosed condition and whether there were any other tests that could have been performed that would have been sensitive or definitive in providing a diagnosis. Often the test that should have been performed that would have been diagnostic for plaintiff's condition is as simple as a urinalysis.


After you have established that the patient's symptoms were consistent with the undiagnosed condition and it was not ruled-out, examine the defense expert about treatment options and her/his opinions on the causation issue. In other words: What is the proper treatment for the undiagnosed condition? When did treatment need to be started before the harm could be avoided? Even if a defendant physician admittedly failed timely make the proper diagnosis, the argument you will likely hear from the defense camp is that earlier treatment would not have made a difference in the outcome. When approaching the defense expert at deposition with these issues, be familiar with the treatment options and their effectiveness the undiagnosed condition. Ask the expert what treatment options are available to treat the undiagnosed condition and the success rate for such treatment. Always follow up to learn what the expert is relying on to support her/his opinions. Ask the defense expert at what point in time the rendering of proper treatment, more likely than not, would have avoided the harm to plaintiff. Offer statistics you have obtained from your own information gathering expert and in your medical literature review to challenge the defense expert's opinions. Since you know the defense expert is likely to opine that the treatment options would not have made a difference in your client's outcome, the goal is to learn everything the expert relied on to reach her/his opinion so that you may work with your own expert to undermine them.


Organizing your failure to diagnose cases as illustrated in this article helps to keep the issues clear and simple for everyone to understand. Most jurors do not like dealing with complexity and they look for simple ways to understand complex medical issues. Presented with conflicting information by medical experts, the easily understood story presents the best opportunity for the jurors to understand your case. This begins and ends with your ability to gather the correct information at the defense expert deposition.

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