Why Doesn’t the Defendant Get to Present a Medical Expert at Trial?

Why doesn’t the defendant get to present a medical expert at trial?

The short answer is the insurance company’s defense lawyers are always allowed to have a medical expert examine an injured Plaintiff once the lawsuit has been filed. They can also have a doctor do what is called a “medical records review” to rebut or contradict the allegations of the injured victim. The insurance company lawyers send their hired litigation witness all of the injured victim’s medical records that they have subpoenaed, and then pay to get a report based upon reading the papers and films, without also paying for a physical exam and testing.


The insurance corporation’s lawyers are allowed by law to have a doctor examine the plaintiff, for each specialty that might be involved. This might mean an orthopedic doctor to look at the broken bones; a neurosurgeon to look at the nerve damage; a psychologist if there is PTSD; and a dermatologist if there are burns and scars). So, why would the insurance company lawyers appear at trial with no medical expert or competent rebuttal evidence?

attorney Doug landau
Attorney Doug Landau in his Abrams Landau mask about to go to court for his client.

One reason is money. For an insurance company to hire a medical doctor to examine the injured victim, it normally costs several thousands of dollars. That is because the insurance company has to pay for the doctor to review the records after the car crash, as well as the prior medical records which can go back many decades. The insurance corporation has to also pay for: the examination, the writing of the report, the doctor’s time to prepare for a pre-trial Deposition, and then pay a lot of money for their time in Court. This is very expensive because a doctor would have to set aside a day, or at least a half a day, to be present at trial. They would have to cancel or re-schedule all the income generating appointments for that time. Even where a doctor gives a videotaped Deposition weeks before trial, the expense is still several thousands of dollars. While the doctor can start after office hours, the defense attorney has to get the insurance company that hired them to pay for: the videographer to record it, the Court reporter to make a transcript, and then perhaps to have editing after objections are ruled upon by the judge before trial.


Likewise, a hired litigation witness for the insurance company will charge thousands of dollars for a medical records review, where the insurance defense lawyer has subpoenaed not only all of the treatment records after the car crash, but any other medical records before and after that they can get their hands on. Insurance company lawyers are always looking for ways to deny, deflect and delay having to reimburse the injured victim fairly. So, if a medical doctor is to do a thorough and complete medical records review, the defense lawyers have to spend a lot of money to send a Subpoena to each and every doctor that the injured victim has ever seen, reviewing it and having it organized, likely by an outside service, or inside nurse or other medical professional. Then the insurance defense lawyer has to provide this organized book of medical information, records, test results, medication history and other materials to the hired litigation medical witness so that they can either render a report, at considerable cost. These hired litigation witnesses can then be Deposed, and then appear trial, for many thousands of dollars.


Since ABRAMS LANDAU, Ltd., does not handle cases that go to General District Court, which has a maximum jurisdictional limit of $50,000, but only goes to the Circuit Court or the Federal District Court for their permanently injured and/or disabled clients, the insurance company lawyers get medical experts in every case against our team. In nearly every single case, where there is a permanent injury, a trial judge will read the jury an instruction on the law having to do with lifetime conditions. Insurance companies have a rule for their hired lawyers to get a medical expert (or two) any time there’s a claim for permanent injury that is supportable by competent evidence. In other words, once a treating orthopedic surgeon, neurologist, family doctor, or other attending physician gives a written opinion that the injured victim has a permanent scar, limp, weakness, reduction in range of motion, loss of vision or hearing, etc., the insurance companies will spend many thousands of dollars to get experts to say it ain’t so.


However, even in cases where they have spent all this money on lawyers, forensic reviewing doctors, examining doctors, background research, Subpoenas, private investigators, Depositions and legal research, sometimes they will not present medical doctors on the witness stand. That is because they:


A. Missed a time deadline set by the court,


B. Their doctors were not able to support any kind of defense position,


C. The plaintiff’s lawyer was able to knock out the defense expert because of bias, financial interests, prejudice, conflict of interest, or outright lying.


There’s been instances where the insurance defense doctor either did not have a current medical license or was the wrong specialty. In one of Landau’s cases, they put on the witness stand a psychologist, a vocational expert and then a urologist, because of a typo in the requisition form, which was supposed to read “neurologist!” We could not make this up, and attorney Landau obviously won the case and received an apology from all sides.


Another reason that the defense lawyers for the insurance company might pay a lot of money to get somebody to examine the plaintiff and review their medical records but not testify, is where the only points that they could score on weren’t treatment, bills or conditions that the plaintiff’s lawyer was seeking in the particular case. This is true where an injured victim might have two different accidents and is claiming medical bills #1-10 in accident “A” and #11-14 in accident “B”. If the defense expert was only going to testify about bills 11-14 in case “A”, then the trial judge would not permit that expert to take the witness stand. Their testimony would not be relevant to the case and it would be a waste of the jury’s time.


As attorney Doug Landau has trained many Virginia Circuit Court trial judges, he has discussed this point with jurists who now sit on jury trial benches throughout the Commonwealth. Medical experts hired by the insurance companies are not allowed to talk about things that have no bearing on the trial before the jury. It would waste the jury’s time, confuse the issue, and delay justice. And, while those are all goals of many of the major insurance companies, it is not condoned by the very good, efficient and fair judges in this jurisdiction. If you or someone you care about was injured due to no fault of your own, please give us a call/text (703-796-9555) or email us at Abrams Landau, Ltd.