The Elephant in the Room
One morning in December, John P. Scanlon and Matthew M. Gannon of Healy Scanlon Law Firm got a call.
An expert witness in a personal-injury case they were arguing had been reviewing the relevant medical records a few days earlier in preparation for testimony. While going through the massive file — it was 30 inches tall when stacked — he reconsidered an opinion he had when he gave his deposition.
It wasn’t just any opinion. It was the key medical detail Scanlon and Gannon had built their case around. The plaintiff’s attorneys were finding out about the revised opinion just hours before the doctor was scheduled to testify.
“It made for a very interesting morning,” Gannon said.
The case offered something rare from an expert witness: a surprise. Expert testimony can make or break a case, especially in medical malpractice, so the processes are smooth and well-honed. The medical community provides ethical and professional guidelines for the witnesses, and legal practitioners have polished their tips and tricks to finding, vetting and handling an expert witness.
But even the smoothest processes have bumps, and lawyers and doctors have to find ways to work together when justice hinges on science.
“We’re not entirely popular in the medical profession,” said personal-injury lawyer Bruce Pfaff, a shareholder at Pfaff Gill & Ports. “We tend to be popular with the clients, and that’s more important.”
‘The inguinal ligament was our whole case’
Scanlon and Gannon’s case, Gregory Smith v. Peter Stecy, was about a woman, Opal Smith, who received an angiogram and angioplasty in 2011 at age 69. Within four hours of being transferred to another floor to recover, the woman lost a fifth of her blood.
The blood loss caused the woman’s pH levels to go down so far she suffered a toxic brain injury, Scanlon and Gannon said. The blood loss also caused a hypoxic brain injury and, they said, caused a stroke that left the left side of her body partially weak. Scanlon said she can’t remember much and was never able to return to work.